All HC | [Bail under SC/SCT (POA) Act] Failure to serve notice of bail upon victim, is failure of State to perform its statutory function; Accused cannot be visited with penal consequences for default of the State

Allahabad High Court: Ajay Bhanot, J., while allowing the present petition, on e-bail applications, said, “The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general.”

Amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, made in the year 2016, brought an alteration in the practice and procedure for hearing of bail applications. Present petition has been moved to seek directions in remedy of certain anomalies as pointed out by the petitioners, including, inconsistencies in the procedure for hearing of bail applications and bail appeals, uncertainty in the period of maturation of bail applications and bail appeals, and deferment of hearing of bail applications or bail appeals under the Act for undefined periods.

Issue

1. What is the agency and mode for service of notice of bail applications/bail appeal upon the victim under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act?
2. What is the time period for maturation of a bail application/bail appeal before the High Court which implements the mandate of the Act (as amended from time to time) and agrees with the requirements of constitutional liberties?

 Observations

On Right to Bail

Court placed reliance on the case of Gudikanti Narasimhulu v. Public Prosecutor High Court of Andhra Pradesh, (1978) 1 SCC 240, “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”

Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14, “The principle to be deduced from Sections 496 and 497 of the Criminal Procedure Code, therefore, is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person, if he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody”

Reinforcing the connection between the concept of liberty and the process of criminal law, the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine 964, said, “Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Highlighting provisions for bail in High Court Rules

“Bail applications have to be processed expeditiously and placed before the court for hearing in a reasonable and definite time frame. The procedure for processing the bail application needs to be consistent, and the time period for hearing of the bail application has to be certain.

A bail processual framework violates fundamental rights and personal liberties of an accused guaranteed under Articles 14 and 21 of the Constitution of India in the following situations:

1. Provisions with an unreasonably large time for maturation of a bail application;
2. Procedures where the time period for hearing of a bail application is undefined;
3. Practices causing indefinite deferment of hearing of a bail application.
4. Failure of police authorities to provide timely instructions to the Government Advocate before the hearing of bail application.”

Court further reproduced the process of maturation of a bail application as contained in Rule 18 of Chapter 18 of the Allahabad High Court Rules.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Relevant Provisions and Discussion

“The Constitution of India asserts the equality of all its citizens. However, the founding fathers were equally conscious of inequalities which blight our society. Many sections of our society are downtrodden and oppressed because of historical reasons. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended from time to time), is a recognition of the fact of inequalities in our society; and a reflection of the resolve to do equal justice.”

Citing relevant provisions, Court observed,

“Section 15A(3) has two limbs: The first is the nomination of the agency to inform the victim about such proceedings under the Act before the Court. The second limb provides for ‘reasonable, accurate and timely notice’ of any criminal proceedings including a bail application/bail appeal to the victim or his dependent. Section 15(A) 3 visualizes some elements of process of maturation of bail, for being placed before the Court. However, it does not disclose any time frame for the same.”

With respect to the word ‘shall’ as added by the legislature, Court referred to the case of Dilip Kumar Sharma v. State of MP, (1976) 1 SCC 560, wherein the Supreme Court said, “It is well settled that such a penal provision must be strictly construed ; that is to say, in the absence of clear compelling language the provision should not be given a wider interpretation and no case should be held to fall within which does not come within the reasonable interpretation of the statute. If two construction are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes the operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.” The position which thus emerges is that under the Act the State Government or Special Public Prosecutor is nominated as the sole agency with the exclusive statutory duty to inform the victim about the bail proceedings. Any practice to create an intermediate agency or alternative method for service of notice upon the victim should be avoided.

Directions issued

1. The notice of the bail application or bail appeal under the Act shall be served upon the Government Advocate before 12:00 PM of any working day.
2. The State Government shall ensure that service of notice of the bail application or bail appeal is effected upon the victim not later than 96 hours after the receipt of the said notice.
3. The victim will be entitled to 72 hours after the receipt of notice of bail.
4. Save in exceptional circumstances which are accepted by the Court, the bail application or bail appeal under the Act shall be placed before the Court immediately after the expiry of 168 hours or 7 days from the time of service of notice of bail application or bail appeal upon the Government Advocate as aforesaid.
5. The report of the service of notice of bail application or bail appeal shall be submitted by the State authority before the court showing due compliance of the provisions of Section 15(3) of the Act.
6. In case the counsel for the applicant does not move the bail application or bail appeal as per the current procedure to enable it to be placed before the Court 7 days after the initial service of notice, this procedure shall be followed. The applicant or his or her counsel shall give 96 hours of notice to the Government Advocate as to the exact date on which such application is intended to be moved. The State shall thereafter cause such notice to be served again upon the victim so as to enable him to have “accurate, notice of the proposed bail application”.
7. During this period of 7 days notice of the bail application under the Act, the police authorities shall ensure that appropriate instructions are available with the Government Advocates to assist the Court at the hearing of the bail application or bail appeal.
8. The SSP/DCP/SP (in districts where there is no post of SSP) of the concerned district shall be the nodal officer, who shall supervise the staff charged with the duty of actually serving the notice upon the victim and to provide instructions and relevant material to the Government Advocate on the bail application. In case, there is default on part of such official, the SSP/DCP/SP of the concerned district shall take immediate action in accordance with law against such erring official.
9. Before parting the Court cannot but take notice of the fact that we live in the age of information technology. The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general. The State Government and the Bar are stakeholders in the matter. On behalf of the State, it has been submitted that the office of the Government Advocate does not have the infrastructure and trained personnel to accept and process e-notices of bail applications.
10. Accordingly, the State Government is directed to ensure that requisite infrastructure and trained personnel in the High Court (Office of Government Advocate), as well as in police stations are available to process the traffic of notices by e-mail. The bail application/ bail appeal may be served upon the Government Advocate by e-mail. In case the notice is fully accurate and contains all the relevant annexures, the said service by e-mail shall be sufficient service upon the State.
11. In the event of service of notice of bail application or bail appeal upon Government Advocate by e-mail, the time limit for effecting service of the said notice by the State upon the victim shall be 72 hours and not 96 hours. The bail application in such cases shall be placed before the Court in 144 hours or 6 days.
12. The option of e-filing of notice of bail applications/ bail appeals under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, shall be made effective w.e.f. 01-05-2021.

 Decision

While allowing the present petition, Court made significant observations upon objective of Bail and the undue delay caused in granting the same under SC/ST (Prevention of Atrocities) Act.[Ajeet Chaudhary v. State of UP, 2021 SCC OnLine All 17, decided on 11-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together