In a candid admission of the prevailing unpalatable ground reality, the Apex Court has as recently as on October 29, 2021 in a learned, laudable, landmark and latest judgment titled Hariram Bhambhi vs Satyanarayan & Anr. in Criminal Appeal No. 1278 of 2021 has held in no uncertain terms that:
Atrocities against members of the Scheduled Castes and Scheduled Tribes are not a thing of the past. They continue to be a reality in our society even today. This was held so while holding that the requirement under Section 15A of SC-ST (Prevention of Atrocities) Act of issuing notice of a court proceeding to a victim or a dependent is mandatory.
The Bench headed by Justice Dr DY Chandrachud and also comprising of Justice BV Nagarathna observed quite forthrightly that:
Many acquittals under SC-ST Act are a result of improper investigation and prosecution of crime, leading to insufficient evidence. This gives rise to the erroneous perception that cases registered under the Act are false and that it is being misused. The Court observed so while considering an appeal against a Rajasthan High Court order granting bail to an accused under SC-ST Act.
To start with, the ball is set rolling in para 2 of this commendable, cogent, composed and convincing judgment wherein it is put forth that:
On 9 June 2018, the appellant lodged a report at Police Station Kishangarh, District Ajmer on the basis of which FIR No.116/2018 for offences punishable under Sections 302 and 201 of the Penal Code was registered. In his complaint, the appellant stated that on 8 June 2018, his younger brother Ram Niwas had gone out for carrying out labour work. The appellant was informed by his mother that evening that Ram Niwas was away to meet his brother-in–law, Kishan Lal, and that he would not return for the day. On 9 June 2018, Ram Niwas's spouse informed the appellant that her brother Kishan Lal had taken Ram Niwas in a vehicle at about 3.00 o'clock.
The local residents informed the appellant that the dead body of Ram Niwas was thrown out of a vehicle at a specified place in the area of Police Station Kishangarh. Investigation commenced on the basis of the report lodged by the appellant. Since the deceased belonged to a Scheduled Caste, offences punishable under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) were added. The first respondent was arrested. On 6 September 2018, a final report under Section 173 of the Code of Criminal Procedure (CrPC) was submitted by the Investigating Officer against Kishan Lal and three other accused of which the first respondent was named as A-4.
As it turned out, the Bench then states in para 3 that:
Aggrieved by the rejection of his application for bail by the Sessions Court, the first respondent moved the High Court of Rajasthan seeking enlargement on bail (S.B. Criminal Appeal No.1132/2019). The complainant was represented by counsel, notice having been given to him under sub-sections (3) and (5) of 15A of the SC/ST Act. The appeal was withdrawn on 8 August 2019.
In hindsight, the Bench then recalls in para 4 that:
On 25 September 2019, the first respondent instituted an application (Criminal Miscellaneous Case No.1253/2019) before the Special Judge, SC/ST (Atrocities Prevention Cases) Ajmer for the grant of bail. The application for bail was rejected by the Special Judge by an order dated 25 September 2019. The Special Judge noted that the statements of five witnesses – PW.1 Suresh, PW.2 Smt. Aaram Devi, PW.3 Hari Ram, PW.4 Ramshankar and PW.5 Gokul Singh were recorded, but certain crucial witnesses were yet to be examined. Consequently, the second bail application submitted by the first respondent was rejected. The first respondent instituted an appeal (S.B. Criminal Appeal No.2518/2019) before the High Court against the rejection of a second application for bail. No notice was issued to the appellant under the provisions of Section 15A of the SC/ST Act.
Briefly stated, the Bench then points out in para 6 that:
The appellant moved the High Court under Section 439(2) of CrPC for cancellation of bail. (S.B. Criminal Bail Cancellation Application No.21/2020). In the meantime, another Single Judge of the High Court, by an order dated 29 January 2021 rejected the application for bail filed by three co-accused - Kalu Ram, Kishan Lal and Chaman Lal.
The application for cancellation of bail before the High Court was moved principally on the ground that no notice was issued to the appellant under sub-section (3) of Section 15A of the SC/ST Act, resultingly no opportunity to be heard was provided under sub-section (5) of Section 15A. The Single Judge who had admitted the first respondent to bail on 7 November 2019 rejected the application on the ground that since the appellant was being heard in the application for cancelling bail, the requirements of sub-sections (3) and (5) of Section 15A were complied with.
Be it noted, the Bench then envisages in para 11 that:
Section 15A, which comes under Chapter IV-A of the SC/ST Act titled 'Rights of victims and witnesses', was introduced by way of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The Statement of Objects and Reasons that accompanied the insertion of Chapter IV-A reads as follows:
(h) to insert a new Chapter IVA relating to Rights of Victims and Witnesses to impose certain duties and responsibilities upon the State for making necessary arrangements for protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence(emphasis supplied).
It is worth noting that the Bench then enunciates in para 12 that, Investigations in India are the exclusive domain of the police, where victims are often relegated to the role of being a spectator in the criminal justice system. Victims of crime often face significant hurdles during investigation and prosecution. Scheduled Castes and Scheduled Tribes specifically suffer on account of procedural lapses in the criminal justice system.
They face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial. Due to the fear of retribution from members of upper caste groups, ignorance or police apathy, many victims do not register complaints in the first place. If victims or their relatives muster up the courage to approach the police, the police officials are reluctant to register complaints or do not record allegations accurately.
Eventually, if the case does get registered, the victims and witnesses are vulnerable to intimidation, violence and social and economic boycott. (C Prabhu, Protecting the Rights of Victims and Witnesses in Caste-Based Atrocities, Centre for Law and Policy Research Blog, available at https://clpr.org.in/blog/protecting-the-rights-of-victims-witnesses-in-caste-based-atrocities/ (15 September 2020), last accessed on 27 October 2021.)
Further, many perpetrators of caste-based atrocities get away scot-free due to shoddy investigations and the negligence of prosecuting advocates. (Subhradipta Sarkar, The Quest for Victims' Justice in India, Human Rights Brief 17(2) (2010), p.16-20). This results in low conviction rates under the SC/ST Act giving rise to the erroneous perception that cases registered under the Act are false and that it is being misused.
On the contrary, the reality is that many acquittals are a result of improper investigation and prosecution of crime, leading to insufficient evidence. This is evident from the low percentage of cases attracting the application of the provisions of the Penal Code relating to false complaints as compared to the rate of acquittals. [Sthabir Khora, Misconstruction of the Anti-atrocities Act's Misuse, Economic and Political Weekly 53 (15) (14 April 2018)].
We need to pay attention here that para 13 then discloses that:
Section 15A of the SC/ST Act contains important provisions that safeguard the rights of the victims of caste-based atrocities and witnesses. Sub-sections (3) and (5) of Section 15A specifically make the victim or their dependent an active stakeholder in the criminal proceedings. These provisions enable a member of the marginalized caste to effectively pursue a case and counteract the effects of defective investigations. Sub-sections (1) to (5) of Section 15A are extracted below:
15A
- 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.
- A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victims age or gender or educational disadvantage or poverty.
- 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.
- 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.
- 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. (emphasis added).
Quite clearly, the Bench then points out in para 19 that:
When the High Court entertained S.B. Criminal Appeal No.2518/2019 on 7 November 2019, no notice was given to the appellant. The High Court allowed the application for bail. When the appellant moved the High Court for cancellation of bail, the Single Judge took the view that compliance with the principles of natural justice at that particular stage would cure the deficiency. There has been a clear infraction of the mandate of the statute. Sub-sections (3) and (5) have been introduced by the Parliament to ensure a right to be heard to the person against whom the offence is committed or to the dependents. These provisions must be scrupulously observed. We cannot agree with the finding of the Single Judge that the defect in not issuing notice to the victim or their dependent and depriving them of the opportunity to be heard in the concerned proceedings (for grant of bail) can be cured by providing them a hearing in a proceeding that arose subsequently (for cancellation of bail). Compliance with the principles of natural justice must be observed at every stage under the mandate of the statute.
Most commendably, the Bench then very rightly underscores in para 20 that, Atrocities against members of the Scheduled Castes and Scheduled Tribes are not a thing of the past. They continue to be a reality in our society even today. Hence the statutory provisions which have been enacted by Parliament as a measure of protecting the constitutional rights of persons belonging to the Scheduled Castes and Scheduled Tribes must be complied with and enforced conscientiously. There has been an evident breach of the statutory requirements embodied in sub-sections (3) and (5) of Section 15A in the present case.
To be sure, the Bench then also makes it clear in para 21 that:
We also emphasize that sub-section (3) of Section 15A provides that a reasonable and timely notice must be issued to the victim or their dependent. This would entail that the notice is served upon victims or their dependents at the first or earliest possible instance. If undue delay is caused in the issuance of notice, the victim, or as the case may be, their dependents, would remain uninformed of the progress made in the case and it would prejudice their rights to effectively oppose the defense of the accused. It would also ultimately delay the bail proceedings or the trial, affecting the rights of the accused as well.
Without mincing any words, the Bench then observes in para 22 that:
Quite apart from the infraction of the provisions of the SC/ST Act, there has been no application of mind by the Single Judge of the High Court to the considerations that govern the grant of bail. This Court recently in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana ((2021) 6 SCC 230), of which one of us was a part (Justice DY Chandrachud), has elaborated on the considerations that govern the grant of bail. This Court also emphasized that recording of reasons by a judge is not a task in formality, but an exercise of judicial accountability and transparency, which makes the decision available for further scrutiny at the touchstone of reason and justice. This Court observed:
39. Grant of bail under Section 439 CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail—as in the case of any other discretion which is vested in a court as a judicial institution— is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice....
40. We are also constrained to record our disapproval of the manner in which the application for bail of Vishan (A-6) was disposed of. The High Court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail without discussing the evidence in detail taking into consideration:
- the facts of the case;
- the nature of allegations;
- gravity of offences; and
- role attributed to the accused.
It would be also worth mentioning here that the Bench then holds in para 23 that:
While granting bail to the first respondent, the High Court in its order dated 7 November 2019 only recorded the submission of counsel for the first respondent that PW-2, the spouse of the deceased, had in the course of her statement recorded during the trial, stated that the deceased had gone with her brother Kishan Lal; that Kishan Lal had obtained an insurance policy in the name of the deceased and that the murder had been committed by Kishan Lal to obtain the proceeds of the insurance policy, with the help of his friends.
There is absolutely no reasoning in the order of the High Court granting bail, after recording the submissions of the first respondent's counsel apart from noting that the public prosecutor had opposed the bail. The High Court held that it was just and expedient to release the first respondent on bail keeping in view the facts and circumstances of the case. Such orders cannot pass muster. The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus in the facts and circumstances formula. Brief reasons which indicate the basis for granting bail are essential, for it is the reasons adduced by the court which indicate the basis of the order.
Quite remarkably, the Bench then mentions in para 24 that:
Before the High Court granted bail by its order dated 7 November 2019, the final report had been submitted on 6 September 2018. The final report under Section 173 CrPC contains a detailed analysis of the call data records of the accused who were in continuous contact with each other, as well as of their location in close proximity to the date and time of the incident.
The bail order does not make any mention of factors that are relevant for the grant of bail, which are:
- the seriousness and gravity of the offence; and
- the role attributed to the first respondent in the commission of the crime.
In this backdrop, the order of the High Court in granting bail cannot pass muster. Aggrieved by the order, the appellant had filed an application (S.B. Criminal Miscellaneous Bail Cancellation Application No. 21/2020) seeking its recall. The Single Judge of the High Court by the impugned order dated 8 June 2021 simply reiterated that the bail was granted on the basis of the statement of the wife of the deceased, PW.2, once again failing to show any engagement with the considerations that govern the grant of bail.
What's more, the Bench then brings out in para 25 that:
The appeal is accordingly allowed and the impugned order of the Single Judge of the High Court of Punjab and Haryana dated 8 June 2021 in S.B. Criminal Bail Cancellation Application No. 21/2020 is set aside. The order granting bail to the first respondent dated 7 November 2019 shall stand set aside. The first respondent shall surrender into custody on or before 7 November 2021.
For the sake of clarity, the Bench then states in para 26 that:
The observations made during the course of this judgment are only for the purpose of considering the grant of bail to the first respondent and shall not have a bearing on the merits of the case as such.
In conclusion, we thus see that the Apex Court has pulled up the police for its role in shoddy investigation and prosecution of crime leading to insufficient evidence which in turn leads to many acquittal which should not be the case. Acquittal in turn leads to the erroneous perception that cases registered under the Act are false and that it is being misused. The Apex Court Bench also conceded that atrocities against SC/STs is not a thing of the past. All this definitely needs to be rectified at the earliest. The first and foremost step would be to implement the police reforms as outlined by the Apex Court in 2006 case in Prakash Singh and Ors vs Union of India and Ors. Only then can we truly hope that police will start functioning more effectively for the betterment of the people particularly for the weaker sections of the society!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
