# Subhash Chandra Srivastava (In person) v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Appeal No. 189 of 2022
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-srivastava-in-person-v-state-of-u-p-anr-51885
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code-1860Sections-323, 504, 352 & 427-The
Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989Section 3(1)(r) 14-A (2) 15A (3), (5)-
Criminal appeal with the prayer to cancel /
quash the bail granted to the respondentSection 15A (3), (5) of the S.C./S.T. (P.A.)
Act mandates that prior to the hearing of the
bail application under the provisions of
S.C./S.T. (P.A.) Act, notice must be sent to
the informant of the case-prior to the
hearing of the bail application, the initial
step after the filing of the application for bail
to be taken by the Court was to pass an
effective order to issue notice to the
informant / victim or his dependent. Only
after due notice, an order on such bail
application in either way should had been
passed, but the learned Special Judge did not
bother to comply with the mandatory
provisions under the S.C./S.T. (P.A.) ActResult-Impugned
order
allowing
bail
application of the respondent set aside.

Appeal allowed. (E-15)

List of Cases referred-;

## Text

5 All. Subhash Chandra Srivastava (In person) Vs. State of U.P. & Anr.
179
(2024) 5 ILRA 179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 189 of 2022

Subhash Chandra Srivastava (In person)
 ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Subhash Chandra Srivsastava

Counsel for the Respondents:
G.A., Jai Prakash Prasad, Rakesh Yadav,
Sanjay Kumar Mishra

Criminal Law-Indian Penal Code-1860Sections-323, 504, 352 & 427-The
Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989Section 3(1)(r) 14-A (2) 15A (3), (5)-
Criminal appeal with the prayer to cancel /
quash the bail granted to the respondentSection 15A (3), (5) of the S.C./S.T. (P.A.)
Act mandates that prior to the hearing of the
bail application under the provisions of
S.C./S.T. (P.A.) Act, notice must be sent to
the informant of the case-prior to the
hearing of the bail application, the initial
step after the filing of the application for bail
to be taken by the Court was to pass an
effective order to issue notice to the
informant / victim or his dependent. Only
after due notice, an order on such bail
application in either way should had been
passed, but the learned Special Judge did not
bother to comply with the mandatory
provisions under the S.C./S.T. (P.A.) ActResult-Impugned
order
allowing
bail
application of the respondent set aside.

Appeal allowed. (E-15)

List of Cases referred-;
1. Jagjeet Singh & ors. Vs Ashish Mishra @
Monu, (2022) 9 SCC 321

2. Criminal Appeal No.293 of 2023 (Raees Hanif
Sayyed Vs The St. of Mah. & anr. dated
10.4.2023

3. Criminal Appeal No.1278 of 2021 (Hariram
Bhambhi Vs Satyanarayan & anr. decided on
29.10.2021

4. Sunita Gandharva Vs St. of M.P. & anr., 2020
SCC OnLine MP 2193

5. Criminal Petition No.200315 / 2020 C/W
Criminal Petition No.200318 / 2020 (Marenna @
Mareppa Vs The St.)

6. (Sahebreddy @ Sabreddy Vs The St. of Karn.)
dated 21.7.2020

7. n R/Special Civil Application No. 6369 of 2020
(Hemal Ashwin Jain (Sheth) Vs U.O.I.) dated
6.8.2020

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard the appellant in person,
learned A.G.A. for the State as well as
learned counsel for the respondent no.2 and
perused the material available on record.

2. This criminal appeal under Section
14-A (2) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act has
been preferred by the appellant - Subash
Chandra Srivastava (In person) with the
prayer to cancel / quash the bail granted to
the respondent no.2 vide order dated
1.1.2020 passed by the Special Judge,
S.C./S.T. (P.A.) Act, Padrauna, Kushinagar
in Special Trial No.492 of 2019 (State Vs.
Raju @ Sunil Kumar Srivastava) arising out
of case crime no.436 of 2019 under sections
323, 504, 352, 427 IPC and 3 (1) (r)
S.C./S.T. (P.A.) Act, Police Station Kotwali
Padrauna, District Kushinagar.
180 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The factual aspect of the matter, as
revealed from the perusal of the F.I.R. of this
case, is that 3 named accused persons along
with 3 - 4 other unknown associates were
present on the place of occurrence and coaccused Sunil @ Raju was making a
puncture in the vehicle of the informant.
When it was protested by the informant and
his friend Ram Narain Mushar, they were
threatened and abused by all the aforesaid
accused persons and Ram Narain Mushar
was also abused by his caste name on a
public place in the public view. The incident
occurred due to a land dispute between the
parties whereupon the accused persons had
already made an assault upon the house of
the informant on 25.5.2019. The incident
happened on 30.8.2019 at about 11:00 A.M.
and the F.I.R. was lodged on the same day at
22:15 hours. Subsequently, after submission
of the charge-sheet, cognizance was taken
on 7.12.2019 and at this stage a bail
application was moved by respondent no.2
Raju @ Sunil Kumar Srivastava and he was
granted interim bail by the Special Judge,
S.C./S.T. (P.A.) Act, Kushinagar till
1.1.2020 and an order was also passed to
issue notice to the informant of this case.
Thereafter, on 1.1.2020, the impugned bail
order was passed whereby the accused /
respondent no.2 was granted regular bail by
the trial court.

4. Albeit several instances have been
mentioned in the present appeal relating to
misuse of bail on the part of respondent
no.2, which was granted to him by the
impugned order dated 1.1.2020 but at the
time of argument the learned counsel for the
appellant concised his argument on the sole
issue that Section 15A (3), (5) of the
S.C./S.T. (P.A.) Act mandates that prior to
the hearing of the bail application under the
provisions of S.C./S.T. (P.A.) Act, notice
must be sent to the informant of the case. In
the present matter, no notice was served
upon the informant and without notice, the
bail application of the accused respondent
no.2 was heard and allowed and the
informant was provided no opportunity of
hearing on bail application before the
Special
Judge,
S.C./S.T.
(P.A.)
Act,
Kushinagar
at
Padrauna.
Since
the
mandatory provisions of the S.C./S.T. (P.A.)
Act have not been complied with by the
learned Special Court, the bail granted to the
accused respondent no.2 vide order dated
1.1.2020 is liable to be cancelled.

5. Per contra, learned counsel for the
respondent no.2 opposed the present appeal
and it has been vehemently argued that due
notice was given to the informant of this case
prior to the disposal of the bail application
no.2119 of 2019 by the Special Court under
S.C./S.T. (P.A.) Act, Kushinagar at Padrauna.
It is further argued that the factum of notice to
the informant finds place in paragraph 5 of the
impugned order dated 1.1.2020 itself which
says that a notice has been issued to the
informant, but neither the informant nor any
counsel on his behalf was present before the
Court which led the Court to hear the
prosecution and the accused on bail
application and bail was granted by the learned
Special Court to the present respondent no.2
after hearing. It is further submitted that
present is not a case of misuse of bail granted
to the accused respondent no.2 by the learned
Special Court and prayer has been made to
dismiss the present appeal.

6. I have considered the rival
submissions made by the learned counsel for
the parties and gone through the entire
record including the impugned order
carefully.

7. Before dealing with the rival
submissions of the learned counsel for the
5 All. Subhash Chandra Srivastava (In person) Vs. State of U.P. & Anr.
181
parties and the learned State Counsel, I
deem it proper to have a glance over the
relevant provisions embodied in Section
14A, Sub-sections (1) and (2) and Section
15A, Sub-sections (1), (2), (3), (4), (5) of the
S.C./S.T. (P.A.) Act, which are extracted
below -

"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 (2
of 1974), an appeal shall lie to the High
Court against an order of the Special Court
or the Exclusive Special Court granting or
refusing bail."

"15A. Rights of victims and
witnesses.--(1) It shall be the duty and
responsibility of the State to make
arrangements for the protection of victims,
their dependents, and witnesses against any
kind of intimidation or coercion or
inducement or violence or threats of
violence.

(2) A victim shall be treated with
fairness, respect and dignity and with due
regard to any special need that arises
because of the victims age or gender or
educational disadvantage or poverty. .

(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.

(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."

8. It appears from the perusal of the
record that a report was called for from the
concerned Special Court as to whether any
notice was given to the informant of this
case prior to the disposal of the bail
application or not. A report dated 14th
May, 2024 sent by Sri Gagan Kumar
Bharti, Addl. District & Session Judge /
Special Judge, S.C./S.T. (Prevention of
Atrocities) Act, Sant Kabir Nagar is
available on record. The learned Special
Judge has submitted his report quoting the
report of the Session Clerk which reads
like this -

"उक्त वाि में माननीय उच्च न्यायालय में आिेश
दिनािंक 01.05.2024 दिदमनल अपील निंo - 189 / 2022
के अनुपालन में अवगत करना है दक पिावली के अवलोकन े
स्पष्ट है दक जमानत प्राथवना पि प्रस्तुत करने व जमानत आिेश के
िौरान वािी ुभाि चिंद्र श्रीवास्तव को न तो जमानत नोदट प्राथवना
पि की ुनवाई हेतु नोदट दनगवत करने का ाक्ष्य उपलब्ध है और
न ही मबिंदधत थाने े जमानत प्राथवना पि के बावत कोई ररपोटव
ही प्रस्तुत करने का अदभलेखीय ाक्ष्य ही पिावली पर मौजूि नहीं
है" (प्रदत िंलग्न)

9. The said report reveals this fact that
no notice was sent to the informant of this
case and it also reveals that no police report
was available on record to show that any
notice was served upon the informant. So far
as the averment made in the impugned order
dated 1.1.2020 is concerned, it has been
mentioned in paragraph 5 of the said order
182 INDIAN LAW REPORTS ALLAHABAD SERIES
that "वािी मुकिमा को पक्ष रखने हेतु नोदट दनगवत की गयी है,
परन्तु न तो वािी मुकिमा उपदस्थत आया, न ही उ की तरफ े
अदधवक्ता ही न्यायलय उपदस्थत आये".

10. It is explicitly clear from the
perusal of the impugned order that although
a notice was sent to the informant as per the
impugned
order,
but
it
is
nowhere
mentioned in the said order that the said
notice was ever served upon the informant.
It is also not mentioned in the impugned
order that the notice was returned back to the
Court by the police at any stage prior to the
disposal of the bail application of the
accused after service. Contrary to that the
report sent by Sri Gagan Kumar Bharti,
Additional District & Session Judge /
Special Judge, SC/ST (Prevention of
Atrocities) Act, Sant Kabir Nagar reveals
that no such notice as required by law was
ever sent to the informant. Hence, this Court
is of the opinion that no notice was served
upon the informant and, therefore, it is a
case
wherein
without
affording
the
opportunity
of
hearing
on
the
bail
application to the informant the said
application was heard and bail was granted
to the accused / respondent no.2.

11. At this stage, this Court takes
notice of the fact that the appellant before
this Court does not belong to S.C./S.T.
community.
Undoubtedly,
he
is
the
informant of this case, but the notice which
is required to be given essentially is a notice
sent to the victim or his dependent as
mentioned in Sub-section (3) and (5) to
Section 15A of the S.C./S.T. (P.A.) Act. It is
noteworthy
that
nowhere
the
word
'informant' has been used in the aforesaid
provision. Apart from this, the affidavit in
the appeal in hand has also been filed by the
informant / appellant Subash Chandra
Srivastava, who is not a member of
S.C./S.T. community admittedly.

12. Now two issues emerge out from
the peculiar facts and circumstances of the
case in hand. Firstly, whether apart from
victim or dependent, the informant is the
person who is also required to be served
notice prior to the disposal of a bail
application under the S.C./S.T. (P.A.) Act
and secondly, in the present appeal, whether
affidavit along with the memo of appeal
could be filed by the informant himself who
is not a member of S.C./S.T. community.

13. The F.I.R. discloses the fact that
the appellant / informant is the eyewitness of
the case and he was also abused and
threatened along with his associate Ram
Narain Mushar, who happened to be a
member of S.C./S.T. community and the
whole occurrence happened before him. The
said Ram Narain Mushar belonged to the
marginal section of the society and was a
member of the S.C./S.T. community and he
was abused and threatened by his caste name
at a public place in the public view as well.
The bail by the impugned order was granted
to the respondent no.2 / accused by the
Special Court, S.C./S.T. (P.A.) Act. Hence,
an appeal under Section 14-A of the
S.C./S.T. (P.A.) Act was maintainable. The
conclusion which can easily be arrived at on
basis of the aforesaid provisions is that if
any final judgment and order or sentence is
passed by a Special Court or an Exclusive
Special Court, the appeal shall lie to the
High Court both on facts and on law. In
other words, it is promulgated in the
aforesaid provisions that if the order
appealed against is passed by a Special
Court or an Exclusive Special Court
granting or refusing bail, the appeal shall lie
to the High Court against such order. Since
the impugned order in this matter was
passed by the Special Court, S.C./S.T. (P.A.)
Act, the appeal in all circumstances was
maintainable before the High Court under
5 All. Subhash Chandra Srivastava (In person) Vs. State of U.P. & Anr.
183
Section 14-A of the said S.C./S.T. (P.A.)
Act. It is notable that nowhere it is
mentioned under Sub-section (1) and (2) of
Section 14-A of the S.C./S.T. (P.A.) Act as
to who may file the appeal. Since on the
competency of the appellant to file the
appeal the provisions are silent, a natural
and logical inference may be inferred that
this is the victim or his dependent who, in
any circumstances, is competent to file an
appeal against the order granting bail to the
accused under the S.C./S.T. (P.A.) Act for
the simple reason of his entitlement of a
reasonable, accurate and timely notice to
any Court proceeding including any bail
proceeding. Undoubtedly, he is not the sole
competent person to prefer the appeal but
the informant may also file such appeal
under Section 14-A of the S.C./S.T. (P.A.)
Act.

14. Since the appellant in this case,
being the informant, is a person competent
to file the present appeal, it is connotative
that he may file the memo of appeal
supported with his own affidavit. At the cost
of the repeatation, it should be reminded that
in the matter in hand the present appellant is
not the mere informant but also an aggrieved
person. Hence his competency to depose by
way of affidavit cannot be questioned in the
appeal in hand.

15. The aforesaid proposition of law
finds its root in the law promulgated by the
Hon'ble Apex Court. A three Judge Bench
of the Hon'ble Supreme Court in Jagjeet
Singh and others vs. Ashish Mishra Alias
Monu, (2022) 9 SCC 321 got an occasion to
deal with the subject as to whether notice to
be sent to the informant prior to the disposal
of the bail application under S.C./S.T. (P.A.)
Act is required or not, which can certainly
be taken note of. The said decision of the
Hon'ble Supreme Court was quoted and
followed by the Division Bench of High
Court of Judicature at Bombay (Bench at
Aurangabad) in Criminal Appeal No.293
of 2023 (Raees Hanif Sayyed Versus The
State of Maharashtra and another) dated
10.4.2023 and their Lordships while
referring to the Hon'ble Supreme Court held
that -

"In fact in this case there was no
question of offences under the Atrocities Act,
yet, the Hon'ble Supreme Court has upheld
the rights of the victim to be heard and to
participate in the proceedings before the
Courts. Note has been taken in respect of the
provisions under the Atrocities Act which
make the legal obligation to hear the victim
and then it has been reiterated that the
rights of the victim are totally independent,
incomparable, and not accessory
or
auxiliary to those of the State under the
Code of Criminal Procedure and therefore,
the presence of 'State' in the proceedings,
would not tantamount to according a
hearing to a victim of the crime. Under such
circumstance, when such wide rights are
given to the informant / victim and those are
acknowledged, it is mandatory on the part of
the Special Judges to issue notice to the
victims / informants, as the case may be in
view of Section 15-A(3) of the Atrocities Act
and then to proceed to hear them under
Section 15-A(5) of the Atrocities Act."

16. This Court feels that in a matter
like the present one to insist upon the
phenomenon that notice to the informant
was not required on the ground that nowhere
the word 'informant' has been used in Subsection (3) and (5) of Section 15-A of the
S.C./S.T. (P.A.) Act particularly in the
peculiar circumstances of this case where
the impugned order dated 1.1.2020 nowhere
shows and not even a whisper may be found
in the said order on the point that any notice
184 INDIAN LAW REPORTS ALLAHABAD SERIES
was ever sent to the victim or his dependent
and since in fact no notice was sent to the
victim or his dependent, all the proceedings
relating to the grant of bail to the accused /
respondent no.2 were bad in law and vitiated
as well. The Special Court even did not
bother to ascertain whether any notice was
actually sent to the informant / victim or his
dependent of the case and if such notice was
sent, whether it was served upon him or not
is another loophole in the impugned order. It
is found on its face that the impugned order
does not speak even a single word whether
the notice sent to the informant / victim or
his dependent was served upon him or not
while
making
hearing
on
the
bail
application. With a vigilant eye it may be
seen in paragraph 5 of the impugned bail
order that the learned Special Judge writes
upon issuance of notice to the informant and
also of the absence of the informant and his
counsel but nowhere he mentions anything
regarding the service of notice upon the
informant and this omission denies the
opportunity of hearing which is a valuable
legal right of any victim / informant in the
matter of hearing of bail application under
the provisions of S.C./S.T. (P.A.) Act, which
is also associated with the constitutional
belief of a fair trial.

17. The Hon'ble Supreme Court in
Criminal
Appeal
No.1278
of
2021
(Hariram Bhambhi Versus Satyanarayan
& Anr.) decided on 29.10.2021 made
significant observations particularly in the
context of Section 15-A of the S.C./S.T.
(P.A.) Act and it has been recognized that
Sub-sections (3) and (5) of Section 15-A of
the S.C./S.T. (P.A.) Act specifically make
the victim or his dependent an active
stakeholder in the criminal proceedings.
These provisions enable a member of the
marginalized caste to effectively pursue a
case and counteract the effects of defective
investigation. It was also highlighted that the
purpose of Section 15-A of the S.C./S.T.
(P.A.) Act was to protect the rights of
victims and witnesses whose rights as equal
beneficiaries of the criminal justice system
are often overlooked due to their weak social
position. The Hon'ble Supreme Court in the
aforesaid judgment and order referred to a
decision of the Madhya Pradesh High Court
in Sunita Gandharva Versus State of MP
& Anr., 2020 SCC OnLine MP 2193 and
while highlighting the purpose of the
amendment inserting Section 15A observed
that :

"21. With the years of experience,
it was found that due to some vagueness in
the definitions and some procedural inertia,
the purpose of Act lacked fulfilment,
therefore, to make it more victim oriented,
the Amendment Act was introduced.

22. With the legislative intent
reiterated in the letter, no iota of doubt
exists that intention of the Amendment Act
was for Speedy Trial and Protection of
Victims' Rights. By way of Section 2 (ec)
Victim has been defined and beside Section
14-A, Section 15-A, "Rights of victim and
witnesses" was introduced to take care of
them for the first time. Definition of Victim
includes-relatives, legal guardian and legal
heirs and this definition is much wider than
the definition of Victim provided in Section
2 (wa) of Cr.P.C. which includes guardian
or legal heir, not the relatives. Similarly,
Section 15A of Atrocities Act provides an
extensive mechanism for protection of
Victims/Witnesses. Even the victim has been
given a chance to appear before the Court
at the time of hearing of bail application.
Right of the Court to cancel or revoke the
bail is one of the measures by which
protection of Victims/Witnesses can be
ensured..."
5 All. Rajesh & Ors. Vs. State
185

18. The same dictum of law echoes in
various decisions given by different High
Courts such as High Court of Judicature at
Bombay (Bench at Aurangabad) in Criminal
Appeal No.293 of 2023 (Raees Hanif
Sayyed Versus The State of Maharashtra
and another) dated 10.4.2023, High Court of
Karnataka (Kalaburagi Bench) in Criminal
Petition No.200315 / 2020 C/W Criminal
Petition No.200318 / 2020 (Marenna @
Mareppa
Versus
The
State)
and
(Sahebreddy @ Sabreddy Versus The
State of Karnataka) dated 21.7.2020 and
High Court of Gujarat at Ahmedabad in
R/Special Civil Application No. 6369 of
2020 (Hemal Ashwin Jain (Sheth) Versus
Union of Indian) dated 6.8.2020 wherein
the right of the informant to be heard prior
to the hearing of the bail application moved
under the provisions of S.C./S.T. (P.A.) Act
and a proper service of notice to him has
been expounded and a cumulative reading of
the aforesaid decisions draws a definite
conclusion that the first informant /
complainant / victim or dependent shall be
made as a party in the Court proceedings and
it is the duty of the Court to issue necessary
notice to the first informant or complainant
or victim / his dependent to hear them in any
proceedings as envisaged under Sub-section
(5) of the Section 15A of the S.C./S.T.
(P.A.) Act.

19. It is also important to note here that
the plea that since the accused has made out
a case for bail in his favour, to issue notice
to the informant / victim or his dependent of
the case was not necessary at all, may be
termed as a bogus plea which is a complete
denial of the legal principle of opportunity
of hearing. Suffice it to say that prior to the
hearing of the bail application, the initial
step after the filing of the application for bail
in the matter in hand to be taken by the Court
was to pass an effective order to issue notice
to the informant / victim or his dependent.
Only after due notice, an order on such bail
application in either way should had been
passed, but as a matter of regret, in the case
in hand, the learned Special Judge did not
bother to comply with the mandatory
provisions under the S.C./S.T. (P.A.) Act as
mentioned and discussed here-in-above.

20. Having regard to the facts and
circumstances of the case and the case
laws cited above, the Court is of the
opinion that the court concerned erred in
granting bail to the accused respondent
no.2
without
complying
with
the
mandatory provisions of Section 15A of
the S.C./S.T. (P.A.) Act. The impugned
order was passed by the court concerned
without issuing notice to the informant /
victim or his dependent and without
affording a reasonable and sufficient
opportunity of hearing to him which is
patently
illegal
and
suffers
from
infirmity and illegality and the same is
liable to be set-aside and the appeal is
liable to be allowed.

21. Accordingly, the appeal is allowed
and the impugned order dated 1.1.2020
allowing the bail application of the accused
respondent no.2 is hereby set-aside.
----------
(2024) 5 ILRA 185
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 1620 of 1982

Rajesh & Ors. ...Appellants
Versus
State ...Respondent