It is to be noted that in this regard that, as per Section
15A(3) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, a victim or his dependent
shall have the right to reasonable, accurate and timely notice of
any court proceedings including any bail proceedings and the
said Public Prosecutor or the State Government shall inform the
victim about the proceedings under the Act. In this case, as one
of the offences were under the provisions of the Schedules
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
a notice was mandatory as contemplated under the above
provision. Therefore, issuance of an order without complying with such statutory mandate makes the order nullity. The Hon'ble Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar [2011 (14) SCC 770], it was observed as follows:
“If a judgment has been pronounced without
jurisdiction or in violation of principles of natural justice
or where the order has been pronounced without giving
an opportunity of being heard to a party affected by it or
where an order was obtained by abuse of the process of
Court which would really amount to its being without
jurisdiction, inherent powers can be exercised to recall
such order for the reason that in such an eventuality the
order becomes a nullity and the provisions of Section
362 Cr.P.C. would not operate. In such eventuality, the
judgment is manifestly contrary to the audi alteram
partem rule of natural justice. The power of recall is
different from the power of altering/reviewing the
judgment. However, the party seeking recall/alteration
has to establish that it was not at fault..............” {Para 6}
7. After referring to the observations made by the
Hon'ble Supreme Court in the said decision, this Court in
Pushpangathan's case as well as Babu @ Achayan's case held
that, when the order passed by this Court in a criminal proceeding was without jurisdiction and without notice to the affected parties and thereby in violation of the principles of natural justice, the same can be recalled. In this case, despite the fact that there was a mandate as contemplated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the order is seen passed without giving a proper notice to the victim. Therefore, it is an order issued not only in violation of the statutory provisions and also in violation of principles of natural justice. This Court passed the order without taking note of the fact that, no such notice was served upon the affected parties. In such circumstances, I am of the view that, the order passed by this Court is liable to be recalled in the light of the principles laid down by the Hon'ble Supreme Court in Davinder Pal Singh Bhullar's case cited supra.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.M.APPL.NO.4/2022 IN BAIL APPL. NO. 330 OF 2022
BABU T., S/O CHACKO THOMAS, Vs BYJU SEBASTIAN
PRESENT
MR.JUSTICE ZIYAD RAHMAN A.A.
Monday, the 23rd day of January 2023
This is an application submitted by the defacto complainant,
who is impleaded as additional 3rd respondent in this bail
application. The aforesaid bail application was disposed of by this
Court as per order dated 29.04.2022. The bail application was
submitted by the petitioners, who are the accused in crime
No.1308/2021 of Ranni Police Station, which was registered for the
offences punishable under Section 506 read with Section 34 of the
Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
2. In this case, even though initially, the bail application
was filed without impleading the defacto complainant, subsequently,
an application was filed to that effect and the same was allowed and
accordingly, he was impleaded as the 3rd respondent. On
19.04.2022, when the matter came up for consideration, this Court
passed an order directing the Station House Officer, Ranni Police
Station to serve notice on the additional 3rd respondent and the
matter was directed to be posted after service of notice. Even
though, no subsequent posting date is seen recorded in the
proceeding sheet of this case, but in the history of the case
hearing as uploaded in the official website of this Court, the next
posting date is shown as 20.05.2022. It is evident from the
endorsement made the proceeding sheet of the bail application
that, the order dated 19.04.2022 was communicated to the Public
Prosecutor on 21.04.2022. It is seen that, the case was again
came up on 26.04.2022, and from that date the matter was
posted to 29.04.2022. On 29.04.2022, the bail application was
disposed of. The specific case of the 3rd respondent is that, the
application was disposed of without notice to them and therefore
the same is a nullity.
3. The application to recall the said order was submitted
in such circumstances. The learned counsel for the petitioner
places reliance upon the decision rendered by this Court in
Pushpangathan v. State of Kerala [2015 (3) KLT 105] and Babu
@ Achayan v. Thankachan [2022 (2) KLT 394] to support the
contention that, this Court is well within its powers to recall the
order passed by invoking the power under Section 482 Cr.P.C.
when it is found that, the order was passed without giving an
opportunity of being heard to a party affected and thus an order
passed in violation of principles of natural justice.
4. On the other hand, the learned counsel for the
petitioner in the bail application would oppose the said
contentions and prayers.
5. After considering all the relevant aspects, I am of the
view that, there is some force in the contention put forward by the
learned counsel for the 3rd respondent. As rightly pointed out by
the learned counsel, even though a notice was directed to be
served to the 3rd respondent through the Station House Officer,
apparently the same is not served upon him. It is evident that,
the said order was pronounced on 19.04.2022 and the same was
communicated to the Public Prosecutor on 21.04.2022 and
immediately on 26.04.2022 the matter was again taken up despite
the fact that next posting date was shown as 20.05.2022. Later,
the matter is seen disposed of on 29.04.2022. Therefore, it is
evident that the disposal of the bail application was without notice
to the 3rd respondent.
6. It is to be noted that in this regard that, as per Section
15A(3) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, a victim or his dependent
shall have the right to reasonable, accurate and timely notice of
any court proceedings including any bail proceedings and the
said Public Prosecutor or the State Government shall inform the
victim about the proceedings under the Act. In this case, as one
of the offences were under the provisions of the Schedules
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
a notice was mandatory as contemplated under the above
provision. Therefore, issuance of an order without complying with
such statutory mandate makes the order nullity. The Hon'ble
Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar
[2011 (14) SCC 770], it was observed as follows:
“If a judgment has been pronounced without
jurisdiction or in violation of principles of natural justice
or where the order has been pronounced without giving
an opportunity of being heard to a party affected by it or
where an order was obtained by abuse of the process of
Court which would really amount to its being without
jurisdiction, inherent powers can be exercised to recall
such order for the reason that in such an eventuality the
order becomes a nullity and the provisions of Section
362 Cr.P.C. would not operate. In such eventuality, the
judgment is manifestly contrary to the audi alteram
partem rule of natural justice. The power of recall is
different from the power of altering/reviewing the
judgment. However, the party seeking recall/alteration
has to establish that it was not at fault..............”
7. After referring to the observations made by the
Hon'ble Supreme Court in the said decision, this Court in
Pushpangathan's case as well as Babu @ Achayan's case held
that, when the order passed by this Court in a criminal proceeding
was without jurisdiction and without notice to the affected parties
and thereby in violation of the principles of natural justice, the
same can be recalled. In this case, despite the fact that there
was a mandate as contemplated under Section 15A(3) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, the order is seen passed without giving a proper
notice to the victim. Therefore, it is an order issued not only in
violation of the statutory provisions and also in violation of
principles of natural justice. This Court passed the order without
taking note of the fact that, no such notice was served upon the
affected parties. In such circumstances, I am of the view that, the
order passed by this Court is liable to be recalled in the light of
the principles laid down by the Hon'ble Supreme Court in
Davinder Pal Singh Bhullar's case cited supra.
In the result, this Crl.M.A. is allowed and the bail application
is restored into the file. Post for hearing.
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