The Gujarat HC has stated that courts need not hear the complainant/ victim during bail hearings for bailable offences under the SC/ST Act. Bench comprising of Chief Justice Vikram Nath and Justice JB Pardiwala were considering a writ petition to hold and declare that the provisions of section 15 A(3) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as violative of Article 14 and Article 21 of the Constitution of India and strike it down.
As per section 15 A(3) of SC/ST Act, “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, in a proceeding relating to granting bail to such accused”.
However, it is clarified that before the court decides to decline such opportunity to the victim or the dependent, the court shall thoroughly verify and ascertain that the allegations against the accused disclose commission of only bailable offence or offences under the Act, by him.
The division bench framed and considered the following questions- Whether section 15 A (3) of the SC/ST Act, 2015 is ultra vires Articles 14 and 21 respectively of the Constitution of India, second, Whether section 15 A(3) of the Amendment Act, 2015, is mandatory or directory? And lastly whether the above mentioned section imposes any restrictions upon the competent court while considering the plea of bail in connection with the offences under the Atrocities Act?
The bench reflected that the sections require that the victim must be served with notice of the bail application and must be provided an opportunity to be heard and advance argument. The court further opined that when a statute specifically provides a right to the victim/ dependant to be heard at any proceedings in respect of bail, and if the court fails to provide such opportunity, then there lies an inherent failure of justice, and such procedure cannot be bypassed.
Subsequently it held that section 15 A (3) of the Amendment Act is mandatory and not directory and the non-compliance of the said provision would render the order null and void.