Chattisgarh High Court
Sunil Kumar Sharma vs State Of Chhattisgarh on 10 March, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajani Dubey
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 5 of 2022
Sunil Kumar Sharma S/o Rameshwar Prasad Sharma,
Aged about 38 years, By occupation Kirana Shop,
R/o Village Sothi, Parsapali, P.S. Sipat, Distt.
Bilaspur, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh through Police Station
Sipat, Distt. Bilaspur, Chhattisgarh.
Respondent
For Appellant : Mr. A.K. Samantray, Advocate
For State : Mr. Anmol Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Order on Board
10/03/2022
Sanjay K. Agrawal, J.
1. The appellant herein has been convicted for offence punishable under Section 302 of IPC and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter 'Act of 1989').
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2. Since the matter is listed for hearing on the application for suspension of sentence and grant of bail as the appellant has also been convicted for offence under Section 3(2)(v) of the Act of 1989, the question for consideration would be, whether the victim/dependent is required to be noticed and heard on I.A. No. 1, application for suspension of sentence and grant of bail ?
3. In order to answer the question, provisions contained under Section 15A of the Act of 1989 which relates to rights of victims and witnesses may be referred herein. Section 15A of the Act of 1989 contains important provisions that safeguards the rights of victims of castebased atrocities and witnesses. Subsection (3) of Section 15A of the Act of 1989 confers the right to reasonable, accurate and timely notice of any Court proceedings including any bail proceeding upon the victim or his/her dependent. Sub section (5) of Section 15A of the Act of 1989, entitles the victim or his/her dependent to be heard at any proceeding in respect of bail/sentence/conviction.
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4. At this stage, it would be appropriate to notice subsections (1) to (5) of Section 15A of the Act of 1989, which states as under : "15A. Rights of victims and witnesses. (1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.
(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age or gender or educational disadvantage or poverty. (3) 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 this Act. (4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.
(5) A victim or his dependent shall be entitled to be heard at any proceeding under this 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."
5. Subsections (3) and (5) of Section 15A of the Act of 1989 came up for consideration before the Supreme Court recently in the matter of Hariram 4 Bhambhi v. Satyanarayan and Another1 in which their Lordships of the Supreme Court approved the decision rendered by the Gujarat High Court in the matter of Hemal Ashwin Jain v. Union of India2 and held that subsection (3) and (5) of Section 15A of the Act of 1989 is mandatory in nature. It has been observed by their Lordships in paragraphs 17 and 18 as under : "17. The Gujarat High Court in Hemal Ashwin Jain v. Union of India observed that :
"37. The victims, even today have no semblance of rights at the investigation stage and a feeble position at the trial stage of a criminal prosecution.
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53. We are also not impressed by the argument of Mr. Popat that Section 15A(3) of the Amendment Act should be construed as directory and not mandatory. As is evident from a plain reading of the section quoted above, the victim must be served with notice of the bail application and must be provided an opportunity to be heard and advance argument. When a statute specifically provides a right to the victim/dependent to be heard at any proceedings in respect of bail, and if the court fails to provide such opportunity, then there is an inherent failure of justice. This procedure, in our opinion, cannot be bypassed. The noncompliance of the provision of Section 15A(3) of the Amendment Act 12021 SCC Online SC 1010 2R/Special Civil Application No. 6369 of 2020 5 would render an order null and void. If Section 15A(3) of the Amendment Act is to be construed as directory, then the very object and purpose with which such provision is enacted would got frustrated.
61. In such circumstances referred to above, we hold that Section 15A(3) of the Amendment Act is mandatory and not directory.
18. The finding of the Gujarat High Court that the requirement of issuing notice of a court proceeding to a victim or a dependent under Section 15A(3), in order to provide them an opportunity of being heard, is mandatory, finds echo in multiple High Court decisions including a decision of the Rajasthan High Court3. We find ourselves in agreement with the proposition and hold that subsections (3) and (5) of Section 15A are mandatory in nature.
6. As such, their Lordships of the Supreme Court in the matter of Hariram Bhambhi (supra) have clearly held that the provisions contained under subsections 3 and 5 of Section 15A of the Act of 1989 are mandatory in nature. Section 15A(3) of the Act of 1989 provides the right to victim and his/her dependent to have reasonable, accurate and timely notice of any court proceeding including bail proceeding. However, Section 15A(5) of the Act of 1989 mandates that a victim or his/her dependent shall be entitled to be heard at any proceeding under this Act in 3Abid v. State of Rajasthan, 2020 SCC Online Raj 2703 6 respect of bail, discharge, release, parole, conviction of sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.
7. The question for consideration would be, whether the victim or his/her dependent is entitled for reasonable, accurate and timely notice by virtue of Section 15A(3) of the Act of 1989 and further entitled for hearing by virtue of Section 15A(5) of the Act of 1989 in a proceeding for suspension of sentence and grant of bail under Section 389 of the Code of Criminal Procedure pending the substantive appeal filed by an accused/convict, who is also convicted for the offence(s) under the Act of 1989 ?
8. The provision for suspension of sentence and release of appellant/accused on bail has been provided under Section 389 of CrPC, which states as under : "389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence 7 or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail."
9. AS such, by virtue of subsection (1) of Section 389 of CrPC, in a pending criminal appeal, the Court may order for suspension of substantive jail sentence awarded to the accused by recording the reasons in writing and also if the accused is in confinement, he has to be released on bail on terms and conditions imposed by that Court.
10. By virtue of subsection (5) of Section 15A of the Act of 1989 since victim or his/her dependent is entitled to be served with a notice and heard in a proceeding under this Act in respect of bail as well as conviction/sentence 8 of an accused or in any connected proceeding, in our considered opinion, it would include the proceeding for suspension of sentence and grant of bail filed by the accused/convict under Section 389 (1) of CrPC. In view of the aforesaid provision, as it has clearly been indicated therein that in any proceeding or in any connected proceeding with respect to bail/conviction, the victim or his/her dependent shall be entitled to be heard, therefore, the proceeding for suspension of sentence would definitely fall within the meaning of sub section (5) of Section 15A of the Act of 1989.
11. In that view of the matter, we are of the considered opinion that while hearing the application for suspension of sentence and grant of bail, victim or his/her dependent would be entitled for notice as envisaged under Section 15A(3) of the Act of 1989 and also entitled to be heard by virtue of Section 15A(5) of the Act of 1989 and as provided in subsection 3 of Section 15A of the Act of 1989, the public prosecutor/State Government shall inform the victim about the proceeding for suspension of 9 sentence and grant of bail and file proof thereof before this Court within three weeks.
List it on 25/04/2022.
12. The question is answered accordingly.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 5 of 2022 Appellant Sunil Kumar Sharma Versus Respondent State of Chhattisarh (English) The victim/dependant of an offence under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is entitled for notice and is entitled to be heard in a proceeding for suspension of sentence and grant of bail under Section 389 of CrPC pending criminal appeal.
(Hindi) अननससचचत जजतत और अननससचचत जनजजचत (अतयजचजर चनवजरण) अचधचनयम, 1989 कक धजरज 3(2)(v) कक अअतररत एक अपरजध कक पतचड़त/आचशत वचक ननटटस पजप करनक हकतन पजत हह तथज दअड पककयज सअचहतज कक धजरज कक अअतररत लअचबत दजचणडक अपतल मम सजज कक चनलअबन तथज जमजनत मअजसर ककयक जजनक समबनधत कजयरवजहत मम सननक जजनक हकतन पजत हह |