# Ajeet Chaudhary v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Crl. Misc. Bail Appl. No. 45784 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-chaudhary-v-state-of-u-p-anr-opp-parties-46777
- **Pages:** 17

## Headnote

A. Criminal Law - Indian Penal Code,
1860-Section 354 r/w Section 3(1)Da,
3(1)Dha
of
SC/ST
Act,
1989
&
Prevention
of
Children
from
sexual
offences(POCSO) Act, 2012-Section 7/8inordinate delay in FIR-FIR was a result
of
trivial
altercation
between
the
parties-intention
was
to
falsely
implicate the applicant as the FIR
lodged six days after much deliberationmaterial contradictions in the statement
of victim u/s 161 and 164 Cr.P.C.-no
independent witness of the alleged
incident -school certificate relied to
establish
the
age
of
victim
is
a
fabricated document-co-accused already
granted bail-no criminal history of the
applicant. (Para 1 to 80)
The bail application is allowed. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,962 of 53,388. This is a partial read: ask again with offset=39962 for what follows._

506 INDIAN LAW REPORTS ALLAHABAD SERIES
conditions, the court below shall be at
liberty to proceed for the cancellation of
applicant's bail.

11. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2021)01ILR A506
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Appl. No. 45784 of 2020

Ajeet Chaudhary ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ajeet Srivastava, Sri Raghuvansh Misra

Counsel for the Opp. Parties:
A.G.A.

A. Criminal Law - Indian Penal Code,
1860-Section 354 r/w Section 3(1)Da,
3(1)Dha
of
SC/ST
Act,
1989
&
Prevention
of
Children
from
sexual
offences(POCSO) Act, 2012-Section 7/8inordinate delay in FIR-FIR was a result
of
trivial
altercation
between
the
parties-intention
was
to
falsely
implicate the applicant as the FIR
lodged six days after much deliberationmaterial contradictions in the statement
of victim u/s 161 and 164 Cr.P.C.-no
independent witness of the alleged
incident -school certificate relied to
establish
the
age
of
victim
is
a
fabricated document-co-accused already
granted bail-no criminal history of the
applicant. (Para 1 to 80)
The bail application is allowed. (E-5)

List of Cases Cited:

1. Hussain & anr. Vs U.O.I. (2020) 5 SCC 702

2. Arnab Manoranjan Goswami Vs St. of Mah.
& ors.(2020) SCC OnLine 964

3. Pramod Kumar Ray & ors. Vs St. of Ori.
(2017) SCC OnLine Ori 349

4. Dilip Kumar Sharma & ors. Vs St. of M.P.
(1976) 1 SCC 560

5. Gudikanti Narasimhulu & ors. Vs Public
Prosecutor,HC of A.P.(1978) 1 SCC 240

6. Hussain & anr. Vs U.O.I. (2017) 5 SCC 702

7. Emperor Vs H.L. Hutchinson & anr. (1931) AIR All 356

8. Ranjitsing Brahmjeetsing Sharma Vs St. of
Mah. (2005) 5 SCC 294

9. Nikesh Tarachand Shah Vs U.O.I. & anr.
(2018) 11 SCC 1

10. Maneka Gandhi Vs U.O.I. (1978) 4 SCC 494

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The narrative is being structured in the
following framework to facilitate the discussion:

I.
Defining the controversy and its
origins
II.
Submissions of learned counsels
III.
Right of bail
IV.
SC & ST Act- Relevant provisions:
Discussion
V.
Final Directions
VI.
Review
of
Compliance
of
Directions
VII. Consideration of Bail Application
on merits

I. Defining the controversy and its
origins
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
507

2. The amendments to the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 19891 made in the year
2016, brought in their wake an alteration in
the practice and procedure for hearing of
bail applications.

3. Learned counsels for the applicants
in all connected bail applications pointed
out certain anomalies in the practices of
hearing of bail applications/bail appeals
under
the
Act.
This
has
created
inconsistencies in the procedure for hearing
of
bail
applications/bail
appeals,
uncertainty in the period of maturation of
bail
applications/bail
appeals,
and
deferment
of
hearing
of
bail
applications/bail appeals under the Act for
undefined periods.

4. This issue is common to all bail
applications
before
this
Court.
The
individual bail applications will be decided
on the respective facts of each case by
separate orders.

5. Considering the importance of the
issue raised by the learned counsel for the
applicants in all the bail applications, the
Court had requested the learned members
of the Bar to assist the Court in defining
and resolving the controversy.

6. Shri Manish Goyal, learned
Additional Advocate General was also
requested to take appropriate instructions
from the State Government and make
submissions before the Court.

7. Simply put the questions of law
which arise for determination are these:

I. What is the agency and mode for
service of notice of bail applications/bail
appeal upon the victim under the Act (as
amended from time to time)?

II. 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?

II. Submissions of the learned
counsels for the Parties:

8. Apart from the counsels for the
applicants, Shri Nazrul Islam Jafri, learned
Senior Counsel assisted by Shri Mohd.
Zubair Khan, Shri Vinay Saran, learned
Senior Counsel assisted by Shri Pradeep
Kumar Mishra, learned counsel, Shri R.P.S.
Chauhan, learned counsel, Shri Santosh
Kumar Tiwari, learned counsel and Shri
Raghuvansh Mishra, learned counsel kindly
volunteered to assist the Court. On behalf
of the State Shri Manish Goyal, learned
Additional Advocate General assisted by
Shri Gambhir Singh, learned counsel and
Shri Ankit Srivastava, learned counsel for
the State have made their submissions.

9. Learned counsel for the applicants
in various bail applications, Shri Ajeet
Srivastava, Shri Rajesh Chandra Gupta, and
Shri Devendra Saini submit that the usual
procedure adopted by the Court to effect
the service of the notice of bail applications
upon the victim under the Act, is to issue
notice to the victim by regular mode or
through the Chief Judicial Magistrate of the
district concerned. The procedure is not
contemplated in the Act, and delays hearing
of bail applications/bail appeals for varying
periods.

10. Shri Nazrul Islam Jafri, learned
Senior Counsel assisted by Shri Mohd.
508 INDIAN LAW REPORTS ALLAHABAD SERIES
Zubair Khan, learned counsel made the
following contentions:

I. The disarray caused in the procedure
for hearing of bails is primarily because of
service of notice upon the victim by the
process of Court, instead of direct service
by the State as contemplated in the Act.
Hearing of bail application is delayed for
uncertain periods resulting in violation of
Article 21 of the Constitution of India. The
procedure and practice for bail hearing has
to be rationalized urgently.

II. The right of the victim under the
Act has to be balanced with the right of an
accused to have his bail application heard
within a reasonable period of time.

III. Learned Senior Counsel largely
agrees with the timeline for maturation of
bails suggested by the State Government.
But efforts should always be made to
reduce the time for maturation of bail
applications.

IV. Learned Senior Counsel gave an
account of real case studies of delays
caused by the extant practice of service by
Court process. In one case notice sent by
the Court was not served for more than one
and a half year and the bail application
matured for hearing after that period.

11. Shri Vinay Saran, learned Senior
Counsel assisted by Shri Pradeep Kumar
Mishra, agrees with the arguments of Shri
Nazrul Islam Jafri, learned Senior Counsel
and further submits:

I. The bail processual framework has
to be consistent with the requirements of
Articles 14 and 21 of the Constitution of
India.

II. The time period and procedure for
maturation of the bail application has to be
controlled by the fundamental rights of the
accused under the Constitution, the rights
of the victim under the Act, and the High
Court Rules.

III. Practice of issuance of notice of
bail by the Court to the victim by the court,
has led to large variations in the time
period
for
maturation
of
the
bail
applications for hearing. The process is not
efficient and causes delays. Further such
mode of service is not provided in the Act.

IV. The bail processual system needs
to be rationalized urgently. Notice upon the
victim has to be served directly by State, as
specifically provided in the Act.

V. The time period of maturation of
the bail applications as suggested on behalf
of the State, is reasonable. Though he
contends that efforts should always be
made to improve the system.

12. Both learned Senior Counsels
have called attention to various provisions
of the Act.

13. Shri R.P.S. Chauhan, learned
counsel assisted by Shri Santosh Kumar
Tiwari, learned counsel made the following
contentions:

I. The right of an accused seeking
bail applications is conferred by statute
but also effects his fundamental liberties
under Article 21 of the Constitution of
India.

II. All the Courts do not prescribe a
uniform period for service of notice.
Period and modes for service of notice
varies in different Courts. This leads to
inconsistency in time for maturation of
bails for hearing.

III. The period of maturation of an a
bail application cannot be unduly large,
nor can it be vary from case to case.

14. Learned counsel has cited on the
following authorities:
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
509

1. Hussain and another Vs. Union of
India2

2. Arnab Manoranjan Goswami Vs.
State of Maharashtra and Others3

15. Shri Raghuvansh Mishra, learned
counsel adopted the arguments of learned
Senior Counsels and then advanced the
following additional submissions:

I. The State Government/ Special
Public Prosecutor is nominated as the sole
agency under the Act to effect service of
the bail application upon the victim.

II. The creation of any additional
agency or mode of service apart from the
one prescribed under the Act would be
contrary to law.

III. The Act is a criminal statute and
has to be interpreted strictly.

IV. Section 15 (3) and Section 15(5)
of the Act do not overlap and operate
independently.
Notice
of
bail
application/bail appeal is served under
Section 15(3), while Section 15(5) is
invoked when the victim claims his/her
right of hearing.

V. Failure of the State authorities to
serve the notice upon the victim cannot
deny the accused right to have his bail
application/bail appeal heard within a
stipulated period of time.

16. Learned counsel has placed reliance
on the following cases in point:

I. Pramod Kumar Ray and Others Vs
State of Odisha4

II. Dilip Kumar Sharma and Others
Vs. State of Madhya Pradesh5

17. Shri Manish Goyal, learned
Additional Advocate General assisted by Shri
Gambhir Singh, learned counsel and Shri
Ankit Srivastava, learned counsel for the
State submitted as under:

I. Under the Act, the State is the sole
agency vested with the duty to serve notice of
bail applications/bail appeals upon the victim.

II. The State authorities need reasonable
time to serve notice upon the victim.

III. The victim is also required to be
afforded adequate time after service of notice
to effectively tender his defence before the
Court.

IV. The State machinery shall be geared
up to implement the provisions of the Act in
letter and spirit.

V. Upon the instructions received from
the State Government, the following timeline
is proposed on behalf of the State:

A. Time for service of notice upon the
victim by the State agency should not be less
than 96 hours.

B. Time required by the victim between
the service of notice and hearing of the bail
application should not be less than 72 hours.

III. Right of Bail

18. The right to bail has statutory
origins but cannot be isolated from
constitutional oversight.

19.

Good
authority
has
long
entrenched the right of an accused to seek
bail in the charter of fundamental rights
assured by the Constitution of India. These
authorities pivot the discussion.

20. Bail jurisprudence was firmly
embedded in the constitutional regime of
fundamental
rights
in
Gudikanti
Narasimhulu and Others Vs. Public
Prosecutor,
High
Court
of
Andhra
Pradesh6. Casting an enduring proposition
510 INDIAN LAW REPORTS ALLAHABAD SERIES
of law in eloquent speech, Justice V.R.
Krishna Iyer held:

"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. As
Chamber Judge in this summit court I have
to deal with this uncanalised case-flow, ad
hoc response to the docket being the
flickering candle light. So it is desirable
that the subject is disposed of on basic
principle, not improvised brevity draped as
discretion. Personal liberty, deprived when
bail is refused, is too precious a value of
our constitutional system recognised under
Article 21 that the curial power to negate it
is a great trust exercisable, not casually but
judicially, with lively concern for the cost
to the individual and the community. To
glamorize
impressionistic
orders
as
discretionary may, on occasions, make a
litigative gamble decisive of a fundamental
right. After all, personal liberty of an
accused
or
convict
is
fundamental,
suffering lawful eclipse only in terms of
"procedure established by law". The last
four words of Article 21 are the life of that
human right."

21. Engagement of fundamental rights
in bail jurisprudence is a constant in
constitutional law.

22. The nexus of fundamental
liberties of the citizens and the right of bail
came to the fore in Hussain and another
Vs. Union of India7, when the Supreme
Court was alerted to the issue of delay in
consideration of grant of bail applications
in the courts. In Hussain (supra), it was
enjoined:

"Timeline
for
disposal
of
bail
applications ought to be fixed by the High
Court."

"29.1.1. Bail applications be disposed
of normally within one week;"

23. Nearer home the Allahabad High
Court in Emperor Vs. H.L. Hutchinson
and another8 stated that grant of bail is the
rule and refusal is the exception on the foot
of the following reasons:

"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. One of the complaints made by
the applicants in this case is that their
letters sent from the custody have been
opened and inspected and censored, and,
therefore, they were not in a position to
conduct their defence with the aid of such
friends as may he outside the prison. As I
have said, it is obvious that a presumably
innocent person should have his freedom to
enable him to establish his innocence."

24. The Supreme Court set its face
against restrictions on the power of the
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
511
courts
to
grant
bail
in
Ranjitsing
Brahmajeetsing
Sharma v. State
of
Maharashtra9.

25. Constitutionality of onerous
conditions for grant of bail imposed by
Section 45 of the Money Laundering Act,
2002 was in issue in Nikesh Tarachand
Shah Vs. Union of India and another10.
This narrative will profit from a detailed
consideration of the judgment.

26. The Supreme Court in Nikesh
Tarachand (supra) predicated its holding
by delving into the origin of the quest for
liberty in English jurisprudence:

"18. What is important to learn from
this history is that Clause 39 of the Magna
Carta was subsequently extended to pretrial imprisonment, so that persons could be
enlarged on bail to secure their attendance
for the ensuing trial. It may only be added
that one century after the Bill of Rights, the
US Constitution borrowed the language of
the Bill of Rights when the principle of
habeas corpus found its way into Article 1
Section 9 of the US Constitution, followed
by
the
Eighth
Amendment
to
the
Constitution which expressly states that,
"excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted". We may
only add that the Eighth Amendment has
been read into Article 21 by a Division
Bench
of
this
Court
in Rajesh
Kumar v. State [Rajesh
Kumar v. State,
(2011) 13 SCC 706 : (2012) 2 SCC (Cri)
836] at paras 60 and 61."

27. The enquiry into the constitutional
correctness of the assailed provisions began
with the tests for violation of Article 14
"both in its discriminatory aspect and its
manifestly arbitrary aspect".

28. The discussion then proceeded to
understand the scope and effect of Article
21 of the Constitution of India on the
offending provisions for grant of bail. This
enquiry was overlaid with a consideration
of authorities "on the concept of due
process in our constitutional jurisprudence
whenever the court has to deal with a
question affecting life and liberty of
citizens".

29. Finally in Nikesh Tarachand
(supra), onerous conditions for grant of
bail in Section 45 (1) of the Prevention of
Money
Laundering
Act,
2002,
were
declared unconstitutional being violative of
Articles 14 and 21 of the Constitution of
India:

"46. We must not forget that
Section 45 is a drastic provision which
turns on its head the presumption of
innocence which is fundamental to a
person accused of any offence. Before
application of a section which makes
drastic inroads into the fundamental
right of personal liberty guaranteed by
Article 21 of the Constitution of India,
we must be doubly sure that such
provision furthers a compelling State
interest for tackling serious crime.
Absent
any
such
compelling
State
interest, the indiscriminate application of
the provisions of Section 45 will
certainly violate Article 21 of the
Constitution. Provisions akin to Section
45 have only been upheld on the ground
that there is a compelling State interest
in tackling crimes of an extremely
heinous nature."

30. The following statement of law in
the epoch making decision of Maneka
Gandhi vs. Union of India11 will fortify
this narrative:
512 INDIAN LAW REPORTS ALLAHABAD SERIES

"81... Procedure established by law",
with its lethal potentiality, will reduce life
and liberty to a precarious plaything if we
do not ex necessitate import into those
weighty words an adjectival rule of law,
civilised in its soul, fair in its heart and
fixing those imperatives of procedural
protection absent which the processual tail
will wag the substantive head. Can the
sacred essence of the human right to secure
which the struggle for liberation, with "do
or die" patriotism, was launched be sapped
by formalistic and pharisaic prescriptions,
regardless of essential standards? An
enacted apparition is a constitutional
illusion. Processual justice is writ patently
on Article 21. It is too grave to be
circumvented by a black letter ritual
processed through the legislature."

31.

More
recently
in
Arnab
Manoranjan
Goswami
Vs.
State
of
Maharashtra and Others12. The status of
liberty in our constitutional value system,
realities of the criminal justice process, and
nature of the right of bail came up squarely
for consideration.

32. The Supreme Court in Arnab
Goswami (supra) was cognizant of the
tendency to misuse criminal law and held
unequivocally that the courts have to
ensure that criminal law does not become
"weapon for the selective harassment of the
citizens".

33. The self imposed fetters on grant
of
bail
under
Article
226
of
the
Constitution of India were removed. The
first principles of writ jurisdiction for
upholding the fundamental liberties of the
citizens were reiterated:

"..However, the High Court should not
foreclose itself from the exercise of the
power when a citizen has been arbitrarily
deprived of their personal liberty in an
excess of state power.

71. While considering an application
for the grant of bail under Article 226 in a
suitable case, the High Court must consider
the settled factors which emerge from the
precedents of this Court."

34. Reinforcing the connection
between the concept of liberty and the
process of criminal law, the Supreme Court
in Arnab Goswami (supra), determined the
characteristics of liberty and delineated the
duties of courts across the spectrum:

"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.
Liberty across human eras is as tenuous as
tenuous can be. Liberty survives by the
vigilance of her citizens, on the cacophony
of the media and in the dusty corridors of
courts alive to the rule of (and not by) law.
Yet, much too often, liberty is a casualty
when one of these components is found
wanting."

74. Human liberty is a precious
constitutional value, which is undoubtedly
subject to regulation by validly enacted
legislation.

"...Our courts must ensure that they
continue to remain the first line of defense
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
513
against the deprivation of the liberty of
citizens. Deprivation of liberty even for a
single day is one day too many. We must
always be mindful of the deeper systemic
implications of our decisions."

35. Constitutional courts have to
constantly be at the vanguard of the
defence of liberties of citizens.

Provisions for bail in High Court
Rules:

36. The process of maturation of a
bail application before it is placed before
the Court, is contained in Rule 18 of
Chapter 18 of the Allahabad High Court
Rules. The relevant part of Rule-18 (as
amended on 19.09.2018) is reproduced
below:

"[(3)
Save
in
exceptional
circumstances-

(a) No bail application shall be
placed before the Court unless notice
thereof has been given to the Government
Advocate and a period of two days has
elapsed from the date of such notice.

(b) If the application for bail has not
been moved within seven days after the
expiry of the aforesaid period of two days
the applicant or his counsel shall give two
days previous notice to the Government
Advocate as to the exact date on which
such application is intended to be moved.

(c) Where the prayer for bail is
contained in a petition of appeal or
application for revision, notice thereof
may be given to the Government Advocate
the same day prior to the hearing of such
petition or application and the fact of such
previous notice having been given, shall
be
endorsed
on
such
petition
or
application. Alongwith such notice a
certified copy or one attested to be true by
the counsel, of the Judgment appealed
from or sought to be revised shall also be
given to the Government Advocate.]

(emphasis supplied)"

37. Thus under the Allahabad High
Court Rules, the time to run various
procedural formalities before a bail is
placed before the court is two days.

38. The provision has an interesting
history. The time period for maturation of
the bail application under unamended Rule
18 of the Allahabad High Court Rules was
ten days.

39. 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:

A. Provisions with an unreasonably
large time for maturation of a bail
application;

B. Procedures where the time period
for hearing of a bail application is
undefined;

C.
Practices
causing
indefinite
deferment of hearing of a bail application.

D. Failure of police authorities to
provide
timely
instructions
to
the
Government Advocate before the hearing
of bail application.

40. Such provisions and practices are
vulnerable to a constitutional challenge.

41. Attributes of the processual
framework of bails which are in accord
with Articles 14 and 21 of the Constitution
of India are these. Bail applications have to
be processed expeditiously and placed
before the court for hearing in a reasonable
and definite time frame. The procedure for
514 INDIAN LAW REPORTS ALLAHABAD SERIES
processing the bail application needs to be
consistent, and the time period for hearing
of the bail application has to be certain.

42. The proposition that a bail
application cannot be under procedural
incubation for an unreasonable time, is the
sequitor
of
the
preceding
tenets
of
constitutional law. These were at the heart
of the efforts made by Shri Haider Rizvi, a
public spirited lawyer to reform the bail
procedures in this Court, and make them
consistent with Articles 14 and 21 of the
Constitution of India. Efforts of Sri Haider
Rizvi, learned counsel bore fruit when the
necessary amendments were made to Rule
18 of the Allahabad High Court Rules,
reducing the period of notice of bail from
ten days to two days.

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

43. 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.

44. The controversy in hand requires
a determination of statutory mandate of
relevant provisions of the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (as amended from
time to time). Determination of statutory
mandate is an exercise in interpretation of
the statute. The statutory mandate can be
distilled by understanding the legislative
intent, surveying the relevant provisions of
the enactment, examining the words
employed by the legislature, and being
guided by settled canons of statutory
interpretation.

45. The relevant extract of statements
of objects and reasons of the Act is
reproduced below:

"Statement of Objects and Reasons-
The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
was enacted with a view to prevent the
commission of offences of atrocities against
the members of the Scheduled Castes and
Scheduled Tribes and to establish Special
Courts for the trial of such offences and for
providing relief and rehabilitation of the
victims of such offences.

2. Despite the deterrent provisions
made in the Act, atrocities against the
members of the Scheduled Castes and
Scheduled Tribes continue at a disturbing
level.
Adequate
justice
also
remains
difficult for a majority of the victims and
the witnesses, as they face hurdles virtually
at every stage of the legal process. The
implementation of the Act suffers due to (a)
procedural
hurdles
such
as
nonregistration of cases ;(b) procedural delays
in investigation, arrest and filing of chargesheets; and (c) delays in trial and low
conviction rate"

46. The provisions of the Act
(material to the controversy) shall now be
considered.

47. Section 2 (bd) defines the
"Exclusive Special Court", Section 2(d)
defines the "Special Courts", while Section
2 (ec) defines "victim":
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
515

"(bd) "Exclusive Special Court" means
the Exclusive Special Court established
under sub-section (1) of section 14
exclusively to try the offences under this
Act;"

"(d) Special Court means a Court of
Session specified as a Special Court in
section 14;"

"(ec) "victim" means any individual
who falls within the definition of the
"Scheduled Castes and Scheduled Tribes"
under clause (c) of sub-section (1) of
section 2, and who has suffered or
experienced
physical,
mental,
psychological, emotional or monetary harm
or harm to his property as a result of the
commission of any offence under this Act
and includes his relatives, legal guardian
and legal heirs;"

48. Appeal against an order granting
or refusing bail under the Act is regulated
by Section 14 (A) of the Act, which is
extracted hereinunder:

"[14A.
Appeals. -
(1)
Notwithstanding anything contained in
the Code of Criminal Procedure,1973, an
appeal shall lie, from any judgment,
sentence
or
order,
not
being
an
interlocutory order, of a Special Court or
an Exclusive Special Court, to the High
Court both on facts and on law.

(2)
Notwithstanding
anything
contained in sub-section (3) of section
378 of the Code of Criminal Procedure,
1973, an appeal shall lie to the High
Court against an order of the Special
Court or the Exclusive Special Court
granting or refusing bail.

(3)
Notwithstanding
anything
contained in any other law for the time
being in force, every appeal under this
section shall be preferred within a period
of ninety days from the date of the
judgment, sentence or order appealed
from:

Provided that the High Court may
entertain an appeal after the expiry of the
said period of ninety days if it is satisfied
that the appellant had sufficient cause for
not preferring the appeal within the
period of ninety days:

Provided further that no appeal shall
be entertained after the expiry of the
period of one hundred and eighty days.

(4) Every appeal preferred under
sub-section (1) shall, as far as possible,
be disposed of within a period of three
months from the date of admission of the
appeal.]"

49. Rights of victim and witnesses
and provisions for grant of bail have
merited
special
attention
from
the
legislature in Section 15 of the Act.
Section 15 (A) (3) and (5) being central
to
the
controversy
are
reproduced
hereunder:

"(3) 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."

"(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."

50. Section 15 A (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
516 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

51. The legislature has employed the
word "shall'.

52. The word "shall" mostly denotes
the mandatory intent of the legislature (see
State of Haryana Vs. Raghuvir Dayal13)
Considering the context of the statute and
the preceding discussion the provisions are
mandatory.

53. The Orissa High Court in Pramod
Kumar Ray and Others Vs State of
Odisha14, has held the provisions to be
mandatory.

54.

The
first
principle
of
interpretation of criminal statutes of strict
construction of language of the enactment,
was relied upon by the Supreme Court in
Dilip Kumar Sharma Vs State of M.P.15 :

"23. 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. (M.V. Joshi V. M.U. Shimpi) 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 ti 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."

55. 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.

56. Direct responsibility for service of
bail notice upon the victim under the Act is
upon the State. The Act does not
contemplate sending of bail notice to the
victim by the Court. At least not till the
State fails in its duty to serve notice.
Further, issuance of notice by the Court
does not have added efficacy in these cases,
since ultimately service upon victim is
effected only by the State agencies.

57. The discussion shall now move to
the second most critical aspect of the
controversy. The time line during which the
bail application matures, for being placed
before the court for hearing. And the time
period which will give "reasonable accurate
and timely notice" to the victim.

58. While determining the aforesaid
time line, the Court has to correlate and
balance the mandate of statutory rights of
the
victim,
with
the
imperative
of
constitutional liberties of the accused.

59. In the opinion of this Court, the
time line suggested by the Sri Manish
Goyal,
learned
Additional
Advocate
General upon specific instructions from the
State Government seems to be reasonable
and just. This time line implements the
1 All. Ajeet Chaudhary Vs. State of U.P. & Anr.
517
mandate of the statute and upholds the
demands of constitutional liberties. Though
efforts can always be made to streamline
functioning, improve the efficiency of the
system.

60. Before finalizing the time line,
another issue which was raised at the bar
has to be adverted to.

61. In case State fails to serve notice
upon the victim for various reasons, what
would be the fate of the stipulated time
line. The definition of victim under the Act
is inclusive. The State is in possession of
material details of the victim for service.
Further State has the resources and the
responsibility to serve notice. It is always
open to the State to adopt different modes
of service including publication in the
newspapers.

62. Failure to serve notice of bail
upon the victim, is failure of the State to
perform its statutory function. The accused
cannot be visited with penal consequences
for the default of the State. The erring
officials have to be proceeded against as
per
law.
Placement
of
the
bail
application/bail appeal before the court
cannot be deferred for non service of notice
after the expiry of the time line stipulated
below.

63. There is another aspect of the
matter. A person may simply evade service in
the certain knowledge that failure to serve
shall defer the hearing of the bail application
and extend the period of detention. This
would be an abuse of the process of law and
breach the fundamental right of liberty of the
accused under Article 21 of the Constitution
of India.

64. It was also urged on the foot of
Section 15(5) of the Act, that in case the State
cannot serve the notice within the stipulated
period of time, it may move an application
for enlargement of the time. For the reasons
in the preceding part of the narrative this
contention is being noticed only to be
rejected.

65. Section 15(5) of the Act cannot be
put in service for extension of the notice
period. The said provision comes into play
only where the victim exercises his right to be
heard, when the bail is placed before the
Court after its period of maturation. Section
15(5) of the Act is a stage subsequent to
Section 15 (3) of the Act.

66. While the rights of the victim as
contemplated under the statute have to be
upheld at all times, service of notice of bail
application/appeal cannot be unduly delayed
by the State, nor can the victim cause
indefinite deferment of the hearing of the bail
application.

67. The discussion now turns to the
interpretation of phrase "reasonable, accurate
and timely notice to the victim" under Section
15(3) of the Act. The phraseology employed
by the Legislature is comprehensive and the
intent is unmistakable. The victim has to be
given adequate time to prepare his defence,
prior to placing of the matter before the
Court. The time period of 72 hours between
the receipt of notice by the victim and hearing
of the bail application fully satisfies the
statutory requirement.

V. Final Directions

68. In light of the preceding narrative,
the following directions are issued.
518 INDIAN LAW REPORTS ALLAHABAD SERIES

69. The bail application/bail appeal
under the Act shall be placed before the
Court in strict adherence to the following
time line and procedure:

(I) The notice of the bail application/
bail appeal under the Act shall be served
upon the Government Advocate before
12:00 PM of any working day.

(II) The State Government shall ensure
that
service
of
notice
of
the
bail
application/ bail appeal is effected upon the
victim not later than 96 hours after the
receipt of the said notice.

(III) The victim will be entitled to 72
hours after the receipt of notice of bail.

(IV)
Save
in
exceptional
circumstances which are accepted by the
Court, the bail application/ bail appeal
under the Act shall be placed before the
Court immediately after the expiry of 168
hours/7 days from the time of service of
notice of bail application/bail appeal upon
the Government Advocate as aforesaid.

(V) The report of the service of notice
of bail application/ 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.

(VI) In case the counsel for the
applicant
does
not
move
the
bail
application/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/ 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".

(VII) 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/bail appeal.

(VIII) The S.S.P/ D.C.P/S.P. (in
districts where there is no post of S.S.P) 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 S.S.P./ D.C.P/ S.P. of
the concerned district shall take immediate
action in accordance with law against such
erring official.

(IX) 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.