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Synopsis

A division bench of the Bombay High Court at Aurangabad, consisting of Justice Vibha Kankanwadi and Justice Abhay Waghase, recently expressed strong disapproval towards the Special judges under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, for their failure to adhere to the mandatory provision under Section 15A.

The high court emphasized that it is high time to tell all judges about the factors they should consider while dealing with bail applications.

“The learned Special Judge has written a very cryptic order, that too, without following the mandatory provisions. It is in fact high time to tell all the Special Judges under the Atrocities Act, as to what they should consider while dealing with the bail applications. This has been told again and again but still we do not find any improvement in the same,” the court said.

The high court was considering a plea filed by a man against the order of the Special Judge rejecting his bail application.

An FIR was registered against the man by the father of the victim after her 15-year-old daughter was found dead in a field. The present appellant was arrested on the grounds that he had expressed love for the girl and the girl was not ready to go with him.

Advocate NL Chaudhari, representing the appellant, argued that the prosecution's case relied on an alleged extra-judicial confession given to a person named Vijay Padvi over the phone. However, Chaudhari raised concerns about the call details not being collected and attached to the evidence.

Additional Public Prosecutor AM Phule, representing the state, argued that the Special Judge exercised proper discretion in rejecting the bail application. Phule further presented the statement of Vijay Padvi, who is a friend of the accused, wherein Padvi mentioned that the accused had expressed his love for the girl and was persuading her to come with him. Allegedly, the accused also told Padvi that if the girl refused then the accused would kill her.

In its order, the division bench stated that it cannot be said that as the case is not made out for releasing an accused involved in the offence under the atrocities act it is not necessary to issue notice to the informant.

“It is the first step that is required to be taken after the presentation of the application for bail. When right has been given to the informant or the victim, then notice should be issued and he or she should be heard and then only either order can be passed, allowing or rejecting the application,” the bench noted.

The high court further stressed that the restoration of liberty should be the prime consideration. Merely framing charges and summoning witnesses cannot be the sole ground for rejecting bail applications. The court also expressed disapproval of writing cryptic orders in such cases.

While allowing the appeal and granting bail to the man the division bench noted that extra-judicial confession is a very weak kind of evidence.

“The prosecution appears to be more relying on the extra judicial confession alleged to have been given by the accused to witness Vijay Padvi. In fact extra judicial confession is a very weak kind of evidence. It is stated that extra judicial confession is given on the mobile phone. The mobile numbers are not reflected in the statement under Section 161 and 164 of the Code of Criminal Procedure. CDR has not been collected,” the bench noted.

Case title: Kishor Shivdas Shinde vs State of Maharashtra