Basheer M & Shahul Hameed v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** ## **Crl.MC.No.1473 OF 2020(D)** **CRIME NO.73/2020 OF Mannarkkad Police Station , Palakkad** ## **PETITIONERS/ACCUSED:** - **1 BASHEER .M AGED 47 YEARS S/O.ABU,MOTHIKKAL HOUSE,MANNARKKAD,PALAKKAD DISTRICT.** - **2 SHAHUL HAMEED, AGED 51 YEARS S/O.ABU,MOTHIKKAL HOUSE,MANNARKKAD, PALAKKAD DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE & VICTIM:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI,PIN-682031.** - **2 THE SUB INSPECTOR OF POLICE, MANNARKKAD POLICE STATION, PALAKKAD DISTRICT,PIN-678582.** - **3 ROONI MOOPPAN, S/O.MUNDAN,KOLLAMKADAVU OORU,THAVALAM.P.O,PAKKULAM, ATTAPPADY,PALAKKAD DISTRICT, PIN-678582.** ## **R1 & BY SRI C K PRASAD-PP R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON 18.03.2020 PASSED THE FOLLOWING:** **Crl.M.C.No.1473 of 2020** **2** ## **“C.R”** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.M.C.No.1473 of 2020** ## **--------------------------------------------** Dated this the 18[th] day of March, 2020 ## **O R D E R** The petitioners are the accused in the case registered as Crime No.73/2020 of the Mannarkkad police station. 2. The aforesaid case is registered against the petitioners for the offences punishable under Sections 341 and 323 I.P.C and also under Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'), on the basis of the first information statement given to the police by the third respondent. 3. The allegation against the petitioners is that, they pushed down the third respondent and his son, who are persons belonging to Scheduled Tribe and thereby they caused them pain. The petitioners are said to be persons who do not belong to any Scheduled Caste or Scheduled Tribe. 4. The prayer in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the **Crl.M.C.No.1473 of 2020** **3** Code') is to issue a direction to the Special Court, which deals with the case against the petitioners, not to insist upon the procedure prescribed under Section 15A(5) of the Act. 5. Heard learned counsel for the petitioners and also the learned Public Prosecutor. 6. Section 15A of the Act deals with the rights of the victims and the witnesses. Section 15A(3) of the Act states that, a victim or his dependent shall have the right to reasonable, accurate and timely notice of any court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under the Act. Section 15A(5) of the Act provides that, a victim or his dependent shall be entitled to be heard at any proceeding under the Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing. 7. Called upon to explain on what ground the petitioners claim exclusion of the victims of the offences from the proceedings before the Special Court, learned counsel would submit that the offences alleged against the petitioners are bailable and that the victims have no right to be heard in the proceedings relating to bail in the case. **Crl.M.C.No.1473 of 2020** **4** Learned counsel would submit that, no useful purpose would be served by giving opportunity of hearing to the victims in the bail proceedings in the case, as they have no right to oppose granting of bail to the petitioners. Learned counsel would submit that, in bailable offences, the accused has got absolute right to get bail. 8. _Per contra_ , learned Public Prosecutor would submit that this Court cannot give any direction to the Special Court not to comply with the procedure prescribed under the statute. Learned Public Prosecutor would contend that the provisions contained under Section 15A of the Act are intended to protect the rights of the victims and the rights so protected under the special statute cannot be denied to them by an order of this Court. 9. The Act came into force on 30.01.1990. The special statute was enacted to protect the rights of persons who belong to the Scheduled Castes and the Scheduled Tribes when it was felt that the normal provisions of the laws existing like the Protection of Civil Rights Act, 1955 and the Indian Penal Code were inadequate to check the atrocities and to deter the crimes against them. 10. Again, in the year 2016, some special provisions were introduced in the Act to protect the rights of the victims of the offences under the Act. The provisions newly introduced in the Act, as **Crl.M.C.No.1473 of 2020** **5** per the Act 1 of 2016, came into force on 26.01.2016. These provisions give special consideration to the victims of the offences under the Act in many spheres including the investigation and the trial of cases against persons who are accused of committing the offences under the Act. 11. Chapter IVA, dealing with the rights of the victims and witnesses, was newly introduced in the Act, by Act 1 of 2016. Section 15A of the Act comes under Chapter IVA of the Act. Section 15A of the Act contains various provisions which are intended to protect the rights of the victims and the witnesses. Section 15A(11) of the Act specifically states that, it shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the rights and entitlements of the victims and witnesses in accessing justice. 12. As per Section 15A(3) of the Act, notice of "any Court proceeding” is a right of the victim. It specifically mentions that 'any court proceeding' includes bail proceeding. The expression "shall have" in Section 15A(3) of the Act indicates that giving reasonable, accurate and timely notice to the victim, of any court proceeding including bail proceeding, is mandatory. The expression “shall be entitled” in subsection 5 of Section 15A would indicate that the right of the victim to be heard in any such proceeding under the Act is absolute. **Crl.M.C.No.1473 of 2020** **6** 13. Now, I shall examine the scope of the right to bail of a person accused of committing a bailable offence under the Act. 14. As noticed earlier, the petitioners are accused of the offences punishable under Sections 341 and 323 IPC and Section 3(2) (va) of the Act. The offences punishable under Sections 341 and 323 IPC are bailable. 15. Section 3(2)(va) of the Act states that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence specified in the Schedule of the Act, against a person or property, knowing that such person is a member of a Scheduled Caste on a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine. 16. In **Jafar Sadhik Thangal v. State of Kerala: 2020 (1) KLT 707** , this Court has held and declared that, when an offence punishable under Section 3(2)(va) of the Act is alleged to be committed by a person for the reason that he has committed only bailable offence or offences specified in the Schedule of the Act, in such a case, the offence committed by him under Section 3(2)(va) of the Act is also bailable. **Crl.M.C.No.1473 of 2020** **7** 17. The same view has been taken by the Andra Pradesh High Court in **Rajulapati Ankababu v. State of A.P: (2018 (1) ALT (Crl) 247).** 18. The Act does not contain any provision which states whether the offences under it are bailable or non-bailable. Therefore, the question whether the offences under the Act are bailable or not is to be decided on the basis of the provisions contained in the Code. 19. As per Section 2(a) of the Code, unless the context otherwise requires, "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence. Part II of the First Schedule of the Code contains the classification of offences against laws other than the Indian Penal Code. There can be no doubt that, as per the last entry in Part II of the First Schedule of the Code, any offence punishable with imprisonment for less than three years or with fine only, shall be bailable. 20. An offence under Section 3(2)(va) of the Act is punishable with the same punishment for the offence under the Indian Penal Code, which is specified in the Schedule of the Act. Therefore, when an offence punishable under Section 3(2)(va) of the Act is alleged to **Crl.M.C.No.1473 of 2020** **8** be committed by a person for the reason that he has committed only bailable offence or offences specified in the Schedule of the Act, in such a case, the offence under Section 3(2)(va) of the Act is also bailable. In this context, it is to be noted that, the Schedule of the Act specifies offences punishable under the Indian Penal Code only. Therefore, I am in respectful agreement with the proposition of law which has been declared by this Court in **Jafar Sadhik Thangal** (supra). 21. The right to bail of a person who is accused of only bailable offence or offences is absolute and indefeasible. In view of the provision contained in Section 436(1) of the Code, in bailable offences, there is no question of discretion of the court in granting bail. There is no manner of doubt that bail in a bailable offence can be claimed by the accused as of right. So long as the accused is prepared to give bail, the Court is bound to grant bail to a person accused of a bailable offence. Bail can be refused to a person accused of a bailable offence only under the circumstances mentioned in Section 436(2) of the Code. ## 22. In **Rasiklal v. Kishore : AIR 2009 SC 1341** , the Supreme ## Court has held as follows: “As mandated by Section 436 of the Code what is to be ascertained by the officer or the Court is whether **Crl.M.C.No.1473 of 2020** **9** the offence alleged to have been committed is a bailable offence and whether he is ready to give bail as may be directed by the officer or the Court. When a police officer releases a person accused of a bailable offence, he is not required to hear the complainant at all. Similarly, a Court while exercising powers under Section 436 of the Code is not bound to issue notice to the complainant and hear him. .... Even if notice had been issued to the respondent before granting bail to the appellant, the respondent could not have pointed out to the Court that the appellant had allegedly committed non-bailable offences. As observed earlier, what has to be ascertained by the officer or the Court is to whether the person accused is alleged to have committed bailable offences and if the same is found to be in affirmative, the officer or the Court has no other alternative but to release such person on bail if he is ready and willing to abide by reasonable conditions, which may be imposed on him”. ## (emphasis supplied) 23. Personal liberty is most precious of all human rights. Article 21 of the Constitution of India proclaims that, no person shall be deprived of his life or liberty except according to procedure established by law. There can also be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the **Crl.M.C.No.1473 of 2020** **10** Constitution. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victims and the society at large. The question then arises, in case of intra-conflict in respect of the same fundamental right, the right of which party has to be given primacy. 24. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the Constitutional Courts to weigh the balance. The weighing of balance between the two perspectives in case of fair trial would depend upon the facts and circumstances weighed on the scale of constitutional norms and sensibility and larger public interest. While appreciating the concept of public interest in such a situation, the Court is required to engage itself in construing the process of fair trial which ultimately subserves the cause of justice and remains closer to constitutional sensibility (See **Asha Ranjan v. State of Bihar : AIR 2017 SC 1079** ). 25. When the absolute right of an accused to get bail in case of bailable offences and the right of a victim under the Act to be heard in any court proceeding in relation to granting of bail to an accused under the Act are weighed, in my view, the right of the accused has to be given primacy and preference to the right of the victim under the **Crl.M.C.No.1473 of 2020** **11** Act. Depriving the right to be heard, in a proceeding relating to granting of bail to a person who is accused of committing only a bailable offence under the Act, will not cause any serious prejudice to the victim. Even if the victim appears and opposes the application for bail, the court will be having no discretion at all to refuse bail to the accused in case of a bailable offence. No useful purpose would be served in such a case by granting opportunity of hearing to the victim. The court will have no other option but to release the accused on bail in such a case. 26. Moreover, if a person accused of committing only a bailable offence is released on bail and if he misuses his liberty in any manner causing threat to a free and fair trial, then the victim or the prosecution can approach the High Court for cancellation of the bail and in appropriate cases, the High Court has the power to cancel the bail in the interests of justice (See **Talab Haji Hussain v. Madhukar Purushottam : AIR 1958 SC 376, Ratilal Bhanji v. Assistant Collector of Customs : AIR 1967 SC 1639** and **Rasiklal v. Kishore : AIR 2009 SC 1341** ). 27. Learned Public Prosecutor has contended that, in view of the provision contained in Section 20 of the Act, the provisions contained in the Act would have overriding effect on the provisions **Crl.M.C.No.1473 of 2020** **12** contained in the Code regarding granting of bail to an accused. 28. Section 20 of the Act states that, save as otherwise provided in the Act, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law. 29. The right of a person, who is accused of committing only bailable offence or offences under the Act, to be released on bail is absolute in view of the provision contained Section 436(1) of the Code. There is no provision in the Act which curtails the right of the accused to get bail in a case of bailable offence. The provision contained in Section 15A(5) of the Act does not in way affect the absolute right of a person, who is accused of only bailable offence or offences, to be released on bail. The victim of an offence under the Act has no right to raise any objection to the granting of bail in such a case. Therefore, the provision contained in Section 20 of the Act, cannot have any application to such cases. 30. However, before the court decides not to grant any opportunity to the victim under the Act the right of hearing in a bail proceeding, the court has to verify and ascertain that the allegations against the accused would reveal commission of only bailable offences **Crl.M.C.No.1473 of 2020** **13** by him. The court is not bound by the provisions of law mentioned by the investigating officer in the first information report or the complainant in the complaint filed by him. The court has to independently satisfy that the allegations raised against the accused in the first information report or the complaint would attract only bailable offences against the accused. 31. The discussion above boils down to the conclusion that, when a person is accused of committing only bailable offence or offences under the Act, it is not mandatory to grant opportunity of hearing to the victim or the dependent as provided under Section 15A(5) of the Act in a proceeding relating to granting bail to such accused. However, before the court decides to decline such opportunity to the victim or the dependent, the court shall verify and ascertain that the allegations against the accused disclose commission of only bailable offence or offences under the Act by him. 32. In view of the conclusions above, it is not necessary to give any specific direction to the Special Court, which deals with the case against the petitioners, in the matter of complying with the provision contained in Section 15A(5) of the Act. The petitioners have no specific case that they have filed any application for bail before the Special Court. The petitioners are at liberty to produce the certified **14** ## **Crl.M.C.No.1473 of 2020** copy of this order before the Special Court and seek appropriate reliefs. 33. It is made clear that the conclusions made by this Court in this order are confined to the question of granting opportunity of hearing to the victim or dependent as provided under Section 15A (5) of the Act in a proceeding relating to granting of bail to a person accused of committing only bailable offences and not with regard to any other proceeding or matter mentioned in that provision. The petition is disposed of as above. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.M.C.No.1473 of 2020** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD OF DISTRICT HOSPITAL,PALAKKAD DT,17.4.2002.** **ANNEXURE B TRUE COPY OF THE PROCEEDINGS OF THE TALUK SURVEYOR,MANNARKKAD DATED,21-4-2009** **ANNEXURE C TRUE COPY OF THE COMPLAINT FILED BY THE SISTER OF THE PETITIONERS DATED,2.4.2017 TO THE 2ND RESPONDENT.** **ANNEXURE D TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY THE 2ND RESPONDENT DATED,2.4.2017. ANNEXURE E TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE SISTER OF THE PETITIONERS DATED,21.4.2017 BEFORE THE J.F.C.M.,MANNARKKAD.** **ANNEXURE F TRUE COPY OF THE PROCEEDINGS OF THE MEETING OF THE TAHSILDAR,MANNARKKAD DATED,8.3.2019 ANNEXURE G TRUE COPY OF THE PROCEEDINGS OF THE TALUK SURVEYOR,MANNARKKAD DATED,10.4.2019 ANNEXURE H TRUE COPY OF THE PROCEEDINGS OF THE TAHSILDAR,MANNARKKAD DATED,29.4.2019.** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **LSN**