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Judgment
CHAITALI CHATTERJEE DAS, J.:-
The revisional application has been filed assailing an order dated 1.8.2024 passed by the learned Additional District Judge Asansol,Paschim Bardhaman, and order dated 6/3/2025 passed by the said Court. The Contention of the learned advocate representing the petitioner that the case has been initiated under Section 323/341/506/34 of IPC and section 3(i)(r) & (s) of S/C & S/T(POA) Act but no notice has been given to the victim. It is further submitted that an application under Section 231(2) Cr.P.C was entertained by the learned Court deferring the cross examination of C. S. W.-4 and C.S.W.-5 are recorded. A written objection was filed by the petitioner subsequently, but that was not allowed on the ground that once the order has been passed by the criminal Court, that order cannot be altered or reviewed.
The learned advocate representing the petitioner submits that the guidelines mandated by the Hon’ble Supreme Court in State of Kerala versus Rasheed1 has been violated by the learned Court. In addition the learned Court completely ignored the mandate of section 51 of Schedule Caste and Schedule Tribes (prevention of atrocities) Act which prescribed that victim or the defendant shall have the right of reasonable, accurate and timely notice of any proceedings, including any bail proceeding, and a public prosecutor of the State Government shall inform the victim about any proceeding under this Act which has never been sent to the present petitioner and the charges have been framed in absence of the petitioner on 5.3.2024.
On behalf of the opposite party no.2 the Learned Advocate submits that the instant application has been filed challenging two different orders at an interval of more than six months and the application has been filed under section 482 of Cr.P.C when the prayer has been made for setting aside such order. It is further submitted that this revisional application is not maintainable in its present form and the order cannot be challenged after six months when the period of limitation has been elapsed without giving any cogent reason. The application under Section 231(2) Cr.P.C was allowed in presence of the public prosecutor who was defending the defacto complainant and therefore it cannot be said that the petitioner had no knowledge about the preceding.
Upon hearing the rival contentions of the learned Counsels and going through the materials on record it transpires that though the revisional application has been filed for setting aside the orders passed by the learned Court whereby the application for deferring the cross examination was allowed in respect of certain prosecution witnesses, the learned Advocate has assailed the gross violation of the mandate of the Hon’ble Supreme Court while allowing such application as no notice was served upon the victim even when the charge was framed.
In order to ascertain regarding serving of notice a report was called for from the prosecution. The report submitted by the officer in-charge, Asansol North Police Station, ADPC, informed that no notice was served to the victim prior to the petition filed on 5.3.2024, which was fixed for hearing on 10.5.2024. It is further intimated that since the written objection was filed against the petition for hearing, notice was served for taking evidence after the charge was framed vide order no. 5 dated 23.9.2024. After that on 16.12.2024, the victim prayed for time to file written objection and subsequently filed the same.
In the decision relied upon by the petitioner in Hariram Bhambhi versus Satyanarayan and another in criminal appeal number 1278 of 2021 in connection with an offence punishable under section 302 and 201 of Indian Penal Code ,the deceased belonged to a member of Schedule caste. Subsequently offences punishable under section Schedule caste and Schedule Tribe (Prevention of Atrocities Act) 1989, were incorporated. The application of bail of the said accused was rejected and the Special Judge recorded the evidence of five prosecution witnesses. The second bail application was also rejected and it was challenged before the High Court and no notice was issued to the Appellant and under the provision of section 15A of the SC /ST Act.
The submission advanced that there is a fundamental infraction of the provisions of section 15A of SC/ST Act by the High Court in not issuing notice to the applicant who was entitled to be heard in any proceeding under the Act inter alia in respect of bail . In paragraph 13, it was observed that-
“Section 15A of the SC/ST Act contains important provision that safeguard the rights of the victim of caste based atrocities and witnesses. Sub-section (3) and (5) of section15A specifically make the victim or their dependent an active stakeholder in the criminal proceedings. These provisions enable a member of a marginalised caste to effectively pursue a case and counteract the effect of defective investigations.” On this issue, Hon’ble Supreme Court took note of number of decisions and held that requirement of issuing notice of a court proceeding to a victim or a dependent under section 15A (3) of the Act in order to provide them an opportunity of being heard, is mandatory and further held that in the said case said right to notice were violated.
With regard to the point of maintainability of this revisional application filed under Section 482 Cr.P.C in place of 397 Cr.P.C the decision relied upon by the learned advocate of the petitioner in Akanksha Arora vs Tanay Maben2 where it was held that in catena of decisions, it has been settled that nomenclature of a petition is immaterial and for doing substantive justice, the High Court can always convert a petition under Section 482 CrPC to revision under section 397 Cr.P.C and vice versa. It was further held that availability of alternative remedy of criminal revision under Section 397 Cr.P.C, by itself cannot be a good ground to dismiss an application under section 482 Cr.P.C.
It appears from the record that on 1.8.2024, the date was fixed for hearing of a petition filed by the accused persons on 5.3.2024, and the same was taken up for hearing. The prayer was made for fixation of schedule for examination in chief of some prosecution witnesses and for deferring the cross-examination of C.SW 1 & 2 until the chief of C.S.W 5 is recorded. For that prayer was made for fixation of another schedule for completion of cross examination of C.S.W.1,4 &5 .In this case C.S.W.1 is the defacto complainant and the learned court considered and allowed the prayer made by the learned defence counsel. The schedule was fixed for examination in chief of the prosecution witness no. 1,4 and 5 to be taken on 23.9.2024, 24.9.2024, 25.9.2024 . It is admitted fact that the Learned Public prosecutor was present, and only after hearing the prosecution the order was passed. The order dated 5.3.2024 demonstrate that the date was fixed for framing of charge and the 5 accused persons were present and considering the materials on record and submissions of both sides, the charge was framed against accused persons. After that the petition was filed for fixing the schedule which was passed on 1.8.2024. According to the petitioner, he was not apprised of the above dates since he did not receive any prior notice.
In view of the settled provisions of law and the report submitted before the Court by the prosecution, it is clear that in accordance with the provision of section 15A of the SC/ST (POA) Act no notice was served even before the framing of charge which amounts to violation of the said provision as well as the mandate of the Hon’ble Court as discussed above.
Accordingly, this Court is of the view that since the petitioner is now before this Court and is completely aware about the facts and circumstances, the direction be given to the learned Special Court to fix the schedule in presence of the present petitioner in accordance with law and since the schedule was fixed in absence of the defacto complainant and the petition was heard in her absence the said order is liable to be set aside.
Hence this revisional application stands allowed. The order passed by the Learned Special Judge on 6.3.2025 is hereby set aside. The Learned Special Court is directed to hear the petition of objection filed by the petitioner afresh and to pass a reasoned order and to fix the schedule of the trial in accordance with law.
All other connected applications, if any, hereby stand disposed of.
Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.