Important provisions providing Powers and duties of Special Judge under SC& ST Act 1989 are as follows:
S.14. Special Court and Exclusive Special Court.—(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:
Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act. In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:
Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.]
15-A. Rights of victims and witnesses.
(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.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses—
(a) the complete protection to secure the ends of justice;
(b) the travelling and maintenance expenses during investigation, inquiry and trial; and
(c) the social-economic rehabilitation during investigation, inquiry and trial;
(d) relocation.
(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such court shall periodically review the protection being offered and pass appropriate orders.
(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including—
(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;
(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;
(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection:
Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such court and concluded within a period of two months from the date of receipt of the complaint:
Provided further that where the complaint under clause (c) is against any public servant, the court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the court.
(10) All proceedings relating to offences under this Act shall be video recorded.
18. Section 438 of the Code not to apply to persons committing an offence under the Act.—Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
[18-A. No enquiry or approval required.
(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.]
Ins. by Act 27 of 2018, S. 2 (w.e.f. 20-8-2018).
19. Section 360 of the Code or the Provisions of the Probation of Offenders Act not to apply to persons guilty of an offence under the Act.—The provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act, 1958 (20 of 1958) shall not apply to any person above the age of eighteen years who is found guilty of having committed an offence under this Act.
Important Caselaws on the Topic
1) Whether court must issue notice to victim in an offence under SC and ST Atrocities Act?
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 non-compliance of the provision of Section 15A(3) of the Amendment Act 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” (emphasis supplied).
Supreme Court
JUSTICE Dr Dhananjaya Y Chandrachud JUSTICE BV Nagarathna
Hariram Bhambhi Vs. Satyanarayan & Anr.
Criminal Appeal No. 1278 of 2021
29th October 2021
Author: Dr Dhananjaya Y Chandrachud, J.
Citation: 2021 ALL SCR (ONLINE) 621
https://www.lawweb.in/2021/11/whether-court-must-issue-notice-to.html
2) Whether court can release accused prosecuted for an offence under SC & ST (Atrocities) Act on Anticipatory bail if prima facie offence is not made out against him?
However, it is to be noted that in case of Prathvi Raj Chauhan (supra), it has also been held that, where no prima facie offence is made out as shown in the FIR, in order to prevent miscarriage of justice the statutory bar would not apply.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 303 OF 2021
Sunil Janrao Padol Vs The State of Maharashtra,
CORAM : VINAY JOSHI . J .
DATE : 16/09/2021
https://www.lawweb.in/2021/09/whether-court-can-release-accused.html
3) Chhattisgarh HC: Special Court Under SC-ST (Prevention Of Atrocities) Act Has Power To Direct Registration Of FIR U/s 156(3) CrPC.
The Special Courts constituted under the Act of
1989 will also have
power and jurisdiction to invoke Section 156(3) of
the Code to direct investigation in exercise of power
conferred, to the Station House Officer subject to
fulfillment of making two prior applications under
Section 154(1) and thereafter under Section 154(3) of
the Code by the complainant.
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Misc Petition No.173 of 2018
Order delivered on:27-10-2020
Jaisingh Agrawal, Vs State of Chhattisgarh,
Coram: Hon'ble Shri Justice Sanjay K. Agrawal
4) Whether the court must hear victim while deciding bail application of accused in bailable offences under the SC & ST Atrocities 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
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 thoroughly verify and
ascertain that the allegations against the accused disclose
commission of only bailable offence or offences under the
Act, by him.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6369 of 2020
THE CHIEF JUSTICE MR. VIKRAM NATH and
MR. JUSTICE J.B.PARDIWALA
HEMAL ASHWIN JAIN (SHETH) Vs UNION OF INDIA
CORAM: THE CHIEF JUSTICE MR. VIKRAM NATH
and MR. JUSTICE J.B.PARDIWALA
Date : 06/08/2020
5) Bombay HC: POCSO Act overrides S. 14-A of SC/ST Act while granting bail to accused
Protection of Children from Sexual Ofences Act, 2012
being a special enactment which deal with the ofences of
child abuse, was brought into force w.e.f. 14/11/2012. It is a
comprehensive legislation which provides for protection of
children from ofences of sexual assault, sexual harassment
and pornography, by safeguarding the interest of the child at
every stage of judicial process by incorporating child friendly
mechanism for reporting, recording of evidence, investigation
and conduct of speedy trial of ofences through designated
courts. It ensures child friendly judicial process and involves
multidimensional approach keeping in view the child’s right.
In a case where the child subjected to abuse happened to be
belonging to Scheduled Caste and Scheduled Tribe, the
procedure carved out in the Act of 2012 would not take away
the powers of the Special Court to try the ofences under the
said Act coupled with a provision contained in Section 42(A)
which was introduced by Act No. XIII of 2013 which introduced
a provision that the Act and its provisions shall be in addition
to and not in derogation of provisions of any other law for the
time being in force and in case of any inconsistency, the
provisions of this Act shall have overriding efect on the
provisions of any such law to the extent of inconsistency.
Insertion of provision of Section 42A in the POCSO Act, make
the position of law amply clear and the objection raised by
the learned APP therefore do not warrant any merit. Going a
step further, in accordance with Section 31 of the POCSO Act
which make provisions of Code of Criminal Procedure,
(Hereinafter referred to as ‘Cr.P.C.’ for the sake of brevity)
applicable to the proceedings before the Special Court trying
ofences under the said Act, provisions of Appeal contained in
the Cr.P.C. would be equally made applicable to the
proceedings to the ofences under the POCSO Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 817 OF 2020
Suraj S. Paithankar V/s. The State of Maharashtra
CORAM : BHARATI DANGRE, J.
DATE : 3rd JULY 2020.
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