Gujarat High Court
Anilaben W/O Vineshbhai Asari D/O ... vs State Of Gujarat on 28 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/6219/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6219 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
CIRCULATE AMONGST THE SUBORDINATE JUDICIARY
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ANILABEN W/O VINESHBHAI ASARI D/O JIVABHAI KHARADI
Versus
STATE OF GUJARAT
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Appearance:
MR DA SANKHESARA(5955) for the PETITIONER(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the RESPONDENT No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/03/2018
ORAL JUDGMENT
This is an application at the instance of the original accused no.2 for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, in connection with the First Information Report registered with the A-Division Himmatnagar Police Station, being I-CR No.39 of 2018 for the offences Page 1 of 35 R/CR.MA/6219/2018 JUDGMENT punishable under Sections 395, 504, 506(2) of the Indian Penal Code and under Sections 3(a)(r)(s) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989').
It appears from the materials on record that the applicant herein filed the Criminal Misc. Application No.154 of 2018 in the court of the learned Special Judge (Atrocity) at Himmatnagar for anticipatory bail. The learned Special Judge (Atrocity) and 2nd Additional Sessions Judge, Sabarkantha at Himmatnagar, vide his order dated 12th March 2018, rejected the application seeking anticipatory bail.
Being dissatisfied, the applicant is here before this Courty, praying for anticipatory bail.
Mr.Mitesh Amin, the learned Public Prosecutor, has raised a preliminary objection as regards the maintainability of this application. Mr.Amin submitted that as the court below rejected the anticipatory bail application and as the applicant has been charged with the offences under the Act, 1989, an appeal would lie before this Court under Section 14A of the Amendment Act, 2015. In such circumstances, according to Mr.Amin, the present application under Section 438 of the Code of Criminal Procedure would not be maintainable.
Mr.D.A.Sankhesara, the learned counsel appearing for the applicant, submitted that there is no merit in the preliminary objection raised by the learned Public Prosecutor as regards the maintainability of this application. Mr.Sankhesara would submit that Section 14A(2) talks about the Special Court granting or Page 2 of 35 R/CR.MA/6219/2018 JUDGMENT refusing baiL. The term 'bail' in Section 14A(2) of the Act, 1989, would not include anticipatory bail, but would only mean the regular bail. According to Mr.Sankhesara, the learned counsel appearing for the applicant, there is no reason to read anticipatory bail in Section 14A(2) of the Amendment Act, 2015, because the Act, 1989, by virtue of Section 18, has made it very clear that nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person or an accusation of having committed an offence under the Act, 1989. Thus, according to the learned counsel appearing for the applicant, when the Act itself has specifically barred or excluded the provision of Section 438 of the Code, then there is no good reason to read or construe the word 'bail' in Section 14A of the Act, 1989, as both, regular as well as anticipatory bail. The word 'bail' means, regular bail and not anticipatory bail.
Mr.Sankhesara, in support of his submissions, has placed reliance on one decision of the Patna High Court in the case of Munna Shaw @ Munna Saw, Son of Kishori Saw v. The State of Bihar (Criminal Miscellaneous Application No.24836 of 2016, decided on 27th June 2016).
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether this application seeking anticipatory bail is maintainable or not.
Section 14A of the Amendment Act, 2015, is extracted hereunder :
"14A.Appeals.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal Page 3 of 35 R/CR.MA/6219/2018 JUDGMENT 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.
(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 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 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."
In Munna Shaw (supra), a learned Single Judge of the Patna High Court took the view that if an anticipatory bail application in connection with an offence under the Act, 1989 has been rejected by the Special Court, then it is open for the accused to file an application before the High Court under Section 438 of the Code and it is not necessary that an appeal should be filed before the High Court under Section 14A of the Act, 1989. A learned Single Judge of the Patna High Court took the view that as Section 18 of the Act, 1989 has barred the Page 4 of 35 R/CR.MA/6219/2018 JUDGMENT application of Section 438 of the Code, there is no good reason to construe the term 'bail in Section 14A of the Act, 1989, as anticipatory bail. The relevant observations made by the learned Single Judge in Munna Shaw (supra) are extracted hereunder :
"Section 18 of the Act prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in relation to any case involving arrest of any person on an accusation of having committed an offence under the Act.
There had been controversy as to whether the criminal cases which are registered leveling offence under various provisions of the Act, an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, can be entertained or not.
In the case of Sajjo v. The State of Bihar, reported in 2010 (2) PLJR 690, this Court had an occasion to deal with this aspect of the matter and after elaborately referring to judicial pronouncements, this Court held, in paragraph 14, as follows:
"14. After having deliberated rival contentions of the parties, and after having considered the judgments of various High Courts, referred to above including are own High Court, this court comes to following conclusive conclusions:
(a) That an application under Section 438 Cr.P.C. with respect to offences under the provisions of SC & ST Act is not maintainable as of matter of right either before High Court or before the court of Session.
However, if in the circumstances set forth below, the court is of the opinion that offences alleged are inapplicable under the Provisions of SC & ST Act then certainly an application under section 438 Cr.P.C. is maintainable and relief can be granted.
(b) Merely mentioning the provisions either in the FIR or the complaint petition regarding commission of the offences under SC & ST Actwould not itself denude the court to exercise its power under section 438 Cr.P.C.
Page 5 of 35R/CR.MA/6219/2018 JUDGMENT
(c) The court is required to lift the veil in each case and is required to come to a finding as to whether an offence under the provisions of SC & ST Act is made out or not.
(d) For the purpose of coming to the conclusion about applicability of the provisions of SC & ST Act in a particular case, the court is not required to make an in- depth inquiry or to examine the materials on record meticulously. At this stage for the purpose of consideration of prayer for anticipatory bail, court is required to see only as to whether a prima-facie case is made out or not.
(e) For the purpose of coming to a conclusion as to whether offence under the provisions of SC & ST Act is made out or not, it would be suffice to scrutinize the FIR or the complaint petition, as the case may be. Calling for the case diary, charge sheet, statement of witnesses and other materials on record and considering the defence of accused at this stage would be contrary to the Legislative intent of section 18 of the SC & ST Act and as such for the purpose of consideration of application under section 438 Cr.P.C. same are to be avoided.
(f) In a case of barbaric nature of atrocities punishable under the Provisions of SC & ST Act or in a case of attack with casteist angle, bar u/s 18 of SC & ST Act shall be applicable, and petition under section 438 Cr.P.C. cannot be entertained.
(g) Merely calling some one by caste name does not ipso facto attract the Provisions of SC & ST Act."
This Court specifically ruled that merely mentioning of the provisions, either in the First Information Report or the complaint petition, of the section(s) under the Act would not itself denude the Court to exercise its power under Section 438 of the Code of Criminal Procedure, 1973, and the Court is required to lift the veil in each case in order to come to a finding as to whether an offence under the provisions of the Act is made out or not.
Page 6 of 35R/CR.MA/6219/2018 JUDGMENT The Supreme Court had also occasion to deal with this aspect in the case of Vilas Pandurang Pawar and another v. State of Maharashtra and others, reported in AIR 2012 SC 3316, wherein the Supreme Court held, in paragraph 8, as follows:
"8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence Under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail."
The Supreme Court clearly held that it is the Court's duty to verify the averments made in the complaint or in the First Information Report to find out as to whether an offence under the provisions of the Act has been prima facie made out or not. The Supreme Court held that if there was any such specific averment, the accused persons will not be entitled to benefit of Section 438 of the Code of Criminal Procedure, 1973.
Upon reading of this Court's decision in the case of Sajjo (supra) and the Supreme Court's decision in the case of Vilas Pandurang Pawar (supra), I have no hesitation to conclude and hold that by mere mentioning of the penal provisions under the Act in the First Information Report or in the complaint petition, bar under Section 18 of the Act cannot come into operation. Section 18 of the Act shall come into operation only if the allegations made in the First Information Report or a complaint petition make out an offence under the various provisions of the Act, against the person seeking pre- arrest bail under Section 438 of the Code of Criminal Procedure, 1973.
The question may arise, in a case where the allegations made in the First Information Report or a complaint petition though constitute an offence under the provisions of the Act, but no such offence is made out against the person seeking Page 7 of 35 R/CR.MA/6219/2018 JUDGMENT protection under Section 438 of the Code of Criminal Procedure, 1973; as to whether such person can maintain his application for anticipatory bail or not.
To say it differently, if the allegations, made in the First Information Report or a complaint petition, constitute commission of offence under the Act, against one person and not against the others, whether the person(s) against whom there is no allegation of commission of offence under the Act, can claim the benefit of Section 438 of the Code of Criminal Procedure, 1973 or not ? This would require a close and careful reading of Section 18 of the Act, which reads thus:
18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
Upon careful reading of Section 18 of the Act, it is easily evincible that it prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in relation to any case involving arrest of any person on an accusation of having committed an offence under this Act. Evidently, thus, Section 18 of the Act prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in a case where the arrest of any person is required because of an accusation against him is there of having committed an offence under the Act.
As a natural corollary, it cannot be said that if there is no accusation of having committed an offence under the Act against a person, the bar under Section 18 of the Act shall still apply, on a plea that a case under the provisions of the Act is made out against others.
In order to apply Section 18 of the Act, it must appear from the records that offence under the Act is constituted on the basis of allegation made in the First Information Report or the complaint petition and secondly, such offence is made out against the person who is seeking anticipatory bail. If there is no accusation of commission of offence under the Act against a person, he can very well maintain an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, though the First Information Report may constitute offence under the provisions of the Page 8 of 35 R/CR.MA/6219/2018 JUDGMENT Act.
This interpretation of Section 18 of the Act is based on mere reading of the language of the said provisions. In my view, it could not be the intent of the Legislature to debar a person against whom there is no accusation of having committed an offence under the Act from availing the benefits of the provision of Section 438 of the Code of Criminal Procedure, 1973.
Certain confusion has arisen consequent upon amendment introduced in the Act through The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No.1 of 2016), whereby, inter alia, a new provision, namely, Section 14A, making a provision for appeal against certain orders has been introduced. Section 14 A of the Act reads thus, "14A. (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.Page 9 of 35
R/CR.MA/6219/2018 JUDGMENT (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."
What would be the remedy against the order passed by the Sessions Judge in a proceeding under Section 438 of the Code of Criminal Procedure, 1973, granting or refusing an application for anticipatory bail, is a question, which has arisen in course of submissions advanced on behalf of the parties, consequent upon addition of Section 14A by way of amendment in the Act? Whether an appeal would lie against such order, under Section 14A of the Act ? The answers to these questions are straight and simple. The word 'bail', under Section 14A(2) of the Act cannot include pre- arrest/surrender bail for the simple reason that the Act does not allow the provision of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to operate with respect to the offences committed under the Act. The word 'bail', therefore, as occurring in Section 14A(2) of the Act connotes post- arrest/surrender bail and not pre-arrest bail. An application for anticipatory bail can be maintained only if the provisions of the Act do not apply against a person, who is sought to be arrested. A person, accused in a case registered for the offence punishable under the provisions of the Act, though, can maintain his anticipatory bail application only if he is in a position to demonstrate that the offence under the provisions of the Act are not made out at all.
In my view, therefore, there would be no question of maintaining an appeal under the provisions of Section 14A of the Act against an order passed by Sessions Judge, granting or refusing anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973."
It appears that in the case of Dinesh Kumar and others v. The State of Bihar (Criminal Misc. Application No.24733 of 2016), one another learned Single Judge of the Patna High Court took a contrary view. In Dinesh Kumar (supra), a learned Single Judge of the Patna High Court took the view that if the Special Page 10 of 35 R/CR.MA/6219/2018 JUDGMENT Court rejects an anticipatory bail application for any reason in connection with a First Information Report in which the offence is under the Atrocities Act, 1989, then an application under Section 438 of the Code would not be maintainable before the High Court, but an appropriate appeal in terms of Section 14A of the Amendment Act, 2015, would lie before the High Court.
In view of the conflicting views of the two learned Single Judges of the Patna High Court; one, in the case of Munna Shaw (supra), and another, in the case of Dinesh Kumar (supra), the issue ultimately came to be referred to a Division Bench. A Division Bench of the Patna High Court, in the case of Bisheshwar Mishra and others v. Hanuman Mishra and others (Criminal Misc. Application No.25276 of 2016 and allied matters, decided on 27th October 2016), took the view that against an order granting or refusing bail passed by the Special Court either under Section 438 or under Section 439 of the Code, in respect of the offences under the Atrocities Act, no application for pre- arrest bail or regular bail under the Code shall lie before the High Court, and only an appeal under Section 14A(2) of the Amendment Act, 2015, would be maintainable before the High Court. I may quote the relevant observations made by the Division Bench of the Patna High Court as under :
"48. ..........
14-A. Appeals.- (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), 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 Page 11 of 35 R/CR.MA/6219/2018 JUDGMENT 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. The legal proposition that a Special Act (the Act in the present case) shall override the provisions of the General Act (Code in the present case) could also be of some relevance for determination of the issues left to be answered.
50. In that view of the matter, it would be profitable to refer to Sections 4 and 5 of the Code, which read as under :
"Section 4. Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt Page 12 of 35 R/CR.MA/6219/2018 JUDGMENT with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Section 5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
51. A conjoint effect of Section 4(2) read with Section 5 of the Code is that all offences, whether under the IPC or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, in which case an enactment will prevail over those of Code. The jurisdiction, under Section 4 of the Code, is comprehensive and to the extent that till no valid machinery is set up under any Act for investigation or trial, the jurisdiction of the machinery, provided under the Code, cannot be said to have been excluded.
52. From a close reading of the newly inserted Section 14-A of the Act, it would be evident that sub-section (1) of Section 14-A of the Act provides that no appeal would lie against any interlocutory order passed by Special Court or Exclusive Special Court. It is well settled that an order granting or refusing bail is an interlocutory order inasmuch as it is not a judgment or final order, which terminates a criminal proceeding pending before the Court. However, an exception has been carved in clause (2) of Section 14-A, which provides an appeal against an interlocutory order passed by the Special Court or the Exclusive Special Court either granting or refusing bail under the Act. Thus, it can be said that sub-section (2) of Section 14-A is based on the doctrine of reasonable classification and it is to be read as an exception to the general principle.
53. Though other interlocutory orders passed by the Special Page 13 of 35 R/CR.MA/6219/2018 JUDGMENT Court or the Exclusive Special Court, as the case may be, are not appealable at all in view of the provisions prescribed under Section 14-A(1) of the Amendment Act, 2015, the order granting or refusing bail is an order against which an appeal is permitted under newly inserted Section 14-A(2) of the Act. This is so, because as provided under sub-section (3) of Section 14, every trial, under the Act, is to proceed on day-to- day basis and has to be conducted expeditiously. Therefore, no appeal is provided against any other interlocutory orders passed by the Special Court or the Exclusive Special Court.
54. The reasoning behind the exception carved out is because those orders are concerning the liberty of the accused, as would appear from the interpretation given to in pari materia provisions of Section 21(1) and (4) of the National Investigation Agency Act, 2008 (for short, "the NIA Act") by the Supreme Court in State of A.P. Vs. Mohd. Hussain alias Saleem, reported in (2014) 1 SCC 258.
55. Let us, now, take a glance at Section 21 of the NIA Act, which reads as under :
"21. Appeals. - 1. Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
2. Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
3. Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.
4. Notwithstanding anything contained in sub- section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.Page 14 of 35
R/CR.MA/6219/2018 JUDGMENT
5. Every appeal under this section shall be preferred within a period of thirty 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 thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
56. From a bare reading of Section 21 of the NIA Act vis-à-vis Section 14-A of the Act, it becomes transparent that clause (1) and (4) of the NIA Act are in pari materia newly inserted Section 14-A(1) and (2) of the Act.
57. The Supreme Court has interpreted clause (1) and (4) of NIA Act in State of A.P. Vs. Mohd. Hussain alias Saleem (supra), wherein the principal submission of the accused respondents was based on the premise that the order, granting or refusing bail, is an interlocutory order and that the order on a bail application is excluded from the coverage of Section 21(1) of the NIA Act, which provides for appeals to the High Court from any judgment, sentence or order of Special Court both on facts and on law. It was argued, on behalf of the respondents, accused that it is only those appeals, which are covered under Section 21(1) that are to be heard by two Judges of the High Court, as laid down under Section 21(1) of the NIA Act. The appeal against refusal of bail lies to the High Court under Section 21(4) and not under Section 21(1) and, therefore, it need not be heard by a Bench of two Judges. It was also argued, on behalf of the respondents accused, that the bail application, which the accused had filed before the Bombay High Court, was one under Section 124 of the Maharashtra Control of Crimes Act read with Section 439 of the Code and was fully maintainable before a Single Judge.
58. After hearing the submission of the parties, the Supreme Page 15 of 35 R/CR.MA/6219/2018 JUDGMENT Court discussed and interpreted the provisions prescribed under Section 21 of the NIA Act in paragraph Nos. 17, 18 and 19 as under : ― "17. There is no difficulty in accepting the submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Section 21(4), the appeal against such an order lies to the High Court only, and to no other court as laid down in Section 21(3). Thus it is only the interlocutory orders granting or refusing bail which are made appealable, and no other interlocutory orders, which is made clear in Section 21(1), which lays down that an appeal shall lie to the High Court from any judgment, sentence or order, not being an interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This is because as provided under Section 19 of the Act, the trial is to proceed on day to day basis. It is to be conducted expeditiously. Therefore, no appeal is provided against any of the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This is because those orders are concerning the liberty of the accused, and therefore although other interlocutory orders are not appealable, an appeal is provided against the order granting or refusing the bail. Section 21(4), thus carves out an exception to the exclusion of interlocutory orders, which are not appealable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permitted under Section 21(1) of the Act.
18. Section 21(2) provides that every such appeal under sub-Section (1) shall be heard by a bench of two Judges of the High Court. This is because of the importance that is given by the Parliament to the prosecution concerning the Scheduled Offences. They are serious offences affecting the sovereignty and security of the State amongst other offences, for the investigation of which this Special Act has been passed. If the Parliament in its wisdom has desired Page 16 of 35 R/CR.MA/6219/2018 JUDGMENT that such appeals shall be heard only by a bench of two Judges of the High Court, this Court cannot detract from the intention of the Parliament. Therefore, the interpretation placed by Mr. Ram Jethmalani on Section 21(1) that all interlocutory orders are excluded from Section 21(1) cannot be accepted. If such an interpretation is accepted it will mean that there will be no appeal against an order granting or refusing bail. On the other hand, sub-Section (4) has made that specific provision, though sub-Section (1) otherwise excludes appeals from interlocutory orders. These appeals under sub-Section (1) are to be heard by a bench of two Judges as provided under sub-Section (2). This being the position, there is no merit in the submission canvassed on behalf of the appellant that appeals against the orders granting or refusing bail need not be heard by a bench of two Judges.
19. We cannot ignore that it is a well settled canon of interpretation that when it comes to construction of a section, it is to be read in its entirety, and its sub- sections are to be read in relation to each other, and not disjunctively. Besides, the text of a section has to be read in the context of the statute. A few sub-sections of a section cannot be separated from other sub- sections, and read to convey something altogether different from the theme underlying the entire section. That is how a section is required to be read purposively and meaningfully."
59. After analyzing the provisions of Section 21 of the NIA Act, the Supreme Court held in paragraph Nos. 27.1, 27.2 and 27.3, as under:― "27.1. Firstly, an appeal from an order of the Special Court under NIA Act, refusing or granting bail shall lie only to a bench of two Judges of the High Court.
27.2. And, secondly as far as prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as The Page 17 of 35 R/CR.MA/6219/2018 JUDGMENT Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court.
27.3 Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a bench of two Judges of the High Court."
60. In the backdrop of the position of law as delineated above, in the matter of State of A.P. Vs. Mohd. Hussain alias Saleem (supra), there can be no escape from the conclusion that if an application for bail or pre-arrest bail, in the cases instituted under the Act, is made under the provisions prescribed in Chapter XXXIII of the Code in a Special Court or an Exclusive Special Court and it is granted or refused, an appeal, under newly inserted Section 14-A(2) of the Act, would lie before the High Court.
61. Accordingly, we hold that against an order granting or refusing bail passed by the Special Court or Exclusive Special Court, either under Section 438 or under Section 439 of the Code, in respect of the offences under the Act, no application for pre-arrest bail or bail, under the Code, shall lie before the High Court and only an appeal, under Section 14-A(2) of the Act, would be maintainable before the High Court."
Thus, after exhaustively considering the various provisions and also the objects and scope of the amendment brought about in the Scheduled Castes and Scheduled Tribes Amendment Act, 2015, which came into effect on and from 26.1.2016 and also the in pari materia provisions contained in the National Investigating Agency Act, the Division Bench, relying on the Page 18 of 35 R/CR.MA/6219/2018 JUDGMENT decision of the Apex Court in the matter of State of Andhra Pradesh through I.G., National Investigating Agency v. Mohammed Hussain @ Salim, [AIR 2003 SC 3224], has held that if an application for bail or pre-arrest bail in the cases instituted under the Act is made under the provisions prescribed in Chapter XXXIII of the Code in a Special Court or an Exclusive Special Court and it is granted or refused, an appeal under newly inserted Section 14A(2) of the Act would lie before the High Court.
Though in a different context, a learned Single Judge of the Kerala High Court had an occasion to consider, whether the word 'bail' used in Section 21(4) of the National Investigation Agency Act would include Anticipatory Bail. In paragraph No.26 of the judgment in the case of Mammunhi Thalangadi Mahamood v. State of Kerala and another [2014(1) KLT 132], it was held as follows.
"26. The question can be approached from a different angle as well. In S.21(4) of the NIA Act the expression used is "bail"
without saying whether it is regular bail or anticipatory bail. S.437 to 439 of the Code State that a person accused of or suspected of the commission of offences of the type referred therein may be "released on bail". The only difference between S.437, S.439 and S.438 is that an order of anticipatory bail under S.438 insulates a person arrested from custody while an order of bail under S.437 or 439 enables him to be released from custody. P. Ramanadha Aiyer, in the Advanced Law Lexicon, 3rd Edition defines "bail" as under:
"Bail means to set liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called bail. A security such as cash or a bond; especially, security required by a Court for the release of a prisoner who must appear at a future time."Page 19 of 35
R/CR.MA/6219/2018 JUDGMENT Anticipatory bail is explained as meaning, "an order of anticipatory bail constituting an insurance against Police custody following upon arrest for some offence or offences in respect of which the order is issued."
In Black's Law Dictionary, 9th Edition, the expression 'bail' is given the meaning, "A security such as cash or a bond; especially security required by a Court for the release of a prisoner who must appear in Court at a future time".
The expression "bail" only means the security given by the person accused or suspected of the commission of offence for his release from custody or to insulate him from custody. The expression 'bail' used in S.21(4) of the NIA Act could therefore be regular bail as well as anticipatory bail. Such a view is required to be adopted to avoid, as aforesaid unintelligible, absurd or unreasonable results."
Thus, on a close analysis of the provisions of the Act, there can be no doubt that only the Special Court constituted under Section 14 of the Act has the jurisdiction to entertain an application for bail with respect to offences committed under Act 33 of 1989. The power of the Court of Session and of the High Court in its original criminal jurisdiction to entertain an application under section 438 or section 439 of the Code has been impliedly taken away by Section 14A of the said Act. The power of the High Court in the matter is only appellate jurisdiction as provided under Section 14A(2) of the said Act. Appeal can lie only against an order of the Special Court, and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to him. The existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court.
Having considered all the relevant aspects, the preliminary Page 20 of 35 R/CR.MA/6219/2018 JUDGMENT objection raised by Mr.Amin, the learned Public Prosecutor, that an appeal cannot be maintained against an order refusing pre- arrest bail, merits consideration. The present application under Section 438 of the Code seeking anticipatory bail is not maintainable.
I would also like to look into the identical provisions of the National Investigating Agency Act, 2008. At present, the NIA Act is functioning as the Central Counter Terrorism Law Enforcement Agency in India. The salient features of the NIA Act are that it is applicable to whole of India, citizens of India outside India, in service of the Government wherever they may be and persons on ships and aircrafts registered in India. The officers of the NIA have all the powers, privileges and liabilities which the police officers have in connection with the investigation of any offence.
Section 21 of the NIA Act contains provisions for appeals. It reads as under :
"21. Appeals. 1. Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
2. Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
3. Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.
4. Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.Page 21 of 35
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5. Every appeal under this section shall be preferred within a period of thirty 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 thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
It would be evident from the reading of Section 21 of the NIA Act that clauses (1) and (4) are in pari materia Section 14A(1) and (2) of the Amendment Act, 2015.
The Supreme Court has interpreted clauses (1) and (4) of NIA Act in the case of State of A.P. v. Mohd. Hussain alias Saleem, reported in (2014)1 SCC 258. In the said case, the principal submission of the accused respondents was based on the premise that the order granting or refusing bail is an interlocutory order and that the order on a bail application is excluded from the coverage of Section 21(1) of the NIA Act which provides for appeals to the High Court from any judgment, sentence or order of Special Court both, on facts and on law. It was argued on behalf of the respondents accused that it is only those appeals which are covered under Section 21(1) that are to be heard by two Judges of the High Court as laid down under Section 21(1) of the NIA Act. The appeal against refusal of bail lies to the High Court under Section 21(4) and not under Section 21(1)and, therefore, it need not be heard by a Bench of two Judges. It was also argued on behalf of the respondents accused that the bail application which the accused had filed before the Page 22 of 35 R/CR.MA/6219/2018 JUDGMENT Bombay High Court was one under Section 124 of the Maharashtra Control of Crimes Act read with Section 439 of the Code and was fully maintainable before a single Judge.
After hearing the submission of the parties in the State of A.P. v. Mohd. Hussain alias Saleem (supra), the Supreme Court discussed and interpreted the provisions prescribed under Section 21 of the NIA Act in paragraphs 17, 18 and 19 as under :
"17. There is no difficulty in accepting the submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Section 21(4), the appeal against such an order lies to the High Court only, and to no other court as laid down in Section 21(3). Thus it is only the interlocutory orders granting or refusing bail which are made appealable, and no other interlocutory orders, which is made clear in Section 21(1), which lays down that an appeal shall lie to the High Court from any judgment, sentence or order, not being an interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This is because as provided under Section 19 of the Act, the trial is to proceed on day to day basis. It is to be conducted expeditiously. Therefore, no appeal is provided against any of the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This is because those orders are concerning the liberty of the accused, and therefore although other interlocutory orders are not appealable, an appeal is provided against the order granting or refusing the bail. Section 21(4), thus carves out an exception to the exclusion of interlocutory orders, which are not appealable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permitted under Section 21(1) of the Act.
18. Section 21(2) provides that every such appeal under sub- Section (1) shall be heard by a bench of two Judges of the High Court. This is because of the importance that is given by the Parliament to the prosecution concerning the Page 23 of 35 R/CR.MA/6219/2018 JUDGMENT Scheduled Offences. They are serious offences affecting the sovereignty and security of the State amongst other offences, for the investigation of which this Special Act has been passed. If the Parliament in its wisdom has desired that such appeals shall be heard only by a bench of two Judges of the High Court, this Court cannot detract from the intention of the Parliament. Therefore, the interpretation placed by Mr. Ram Jethmalani on Section 21(1) that all interlocutory orders are excluded from Section 21(1) cannot be accepted. If such an interpretation is accepted it will mean that there will be no appeal against an order granting or refusing bail. On the other hand, sub- Section (4) has made that specific provision, though sub-Section (1) otherwise excludes appeals from interlocutory orders. These appeals under sub- Section (1) are to be heard by a bench of two Judges as provided under sub-Section (2). This being the position, there is no merit in the submission canvassed on behalf of the appellant that appeals against the orders granting or refusing bail need not be heard by a bench of two Judges.
19. We cannot ignore that it is a well settled canon of interpretation that when it comes to construction of a section, it is to be read in its entirety, and its sub- sections are to be read in relation to each other, and not disjunctively. Besides, the text of a section has to be read in the context of the statute. A few sub- sections of a section cannot be separated from other sub-sections, and read to convey something altogether different from the theme underlying the entire section. That is how a section is required to be read purposively and meaningfully."
After analyzing the provisions of Section 21 of the NIA Act, it would be appropriate to refer to the decision of the Supreme Court in the State of A.P. v. Mohd. Hussain alias Saleem (supra), held in paragraphs 27.1, 27.2 and 27.3 as under :
"27.1. Firstly, an appeal from an order of the Special Court under NIA Act, refusing or granting bail shall lie only to a bench of two Judges of the High Court. 27.2. And, secondly as far as prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, Page 24 of 35 R/CR.MA/6219/2018 JUDGMENT 1999, as well as The Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court.
27.3 Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a bench of two Judges of the High Court."
Thus, in the light of the ratio laid down by the Supreme Court in the decisions discussed hereinabove, the first and foremost question which would arise in the mind is what is the intention of the legislature for incorporating clauses (1) and (2) in Section 14A of the Amendment Act, 2015. It is well settled principle of law that the intention of the legislature must be found by reading the statute as a whole. Every clause of a statute should be construed with reference to the constraints and other explanations of the Act as far as possible to make a statute meaningful. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of the statute and give full meaning to the same. The different provisions in the statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express. A few sub- sections of a Section cannot be separated from the other sub- sections and read to convey something altogether different from the theme underlying the entire Section.
In A.R. Antulay v. Ramdas Sriniwas Nayak & Another, Page 25 of 35 R/CR.MA/6219/2018 JUDGMENT reported in (1984)2 SCC 500, the scope of the Special Act making the provision for creation of Special Court for dealing with the offences thereunder and application of the Code in such circumstances has been considered and it has been held that the procedure in the Code can be modified by reason of a special provision in special enactment. The Bench held that it is a well established cannon of construction that the court should read the Section as it is and should not rewrite it to suit its convenience nor should read it in such manner as to render it to some extent otiose.
It is well established that the interpretation must depend on the text and the context. If the text is the texture, context is what gives the colour. Neither can be ignored. That interpretation is considered to be the best which makes the textual interpretation match the contextual. In this context when one looks at Section 14A(1) of the Amendment Act, 2015, it would be evident that it starts with a non-obstante clause and states that notwithstanding anything contained in the Code 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. The non- obstante clause would mean that the provision would have an overriding effect over the Code. It prescribes a forum of appeal for all judgments, sentence or order, which is not interlocutory in nature, to the High Court both on facts and in law.
In Aswini Kumar Ghose v. Arabinda Bose, reported in AIR 1952 SC 369, a Full Bench of the Supreme Court held that:
"It should first be ascertained what the enacting part of the Page 26 of 35 R/CR.MA/6219/2018 JUDGMENT section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment."
It was further held that:
"Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Calcutta, and Bombay High Courts. If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriors leges priores contrarias abrogant (Brooms Legal Maxims, 10th Edn., p.347)."
In The Dominion of India v. Shrinbai, reported in AIR 1954 SC 596, at Paragraph 10, the Supreme Court, held as follows:
"While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non obstante clause cannot out down that construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant Page 27 of 35 R/CR.MA/6219/2018 JUDGMENT 'caution and not by way of limiting the ambit and scope of the operative part of the enactment."
Further, the influence of a non-obstante clause has to be considered on the basis of the context also in which it is used. In State of West Bengal v. Union of India, [1964]1 SCR 371, it is observed as under:
"The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."
In Union of India v. G.M.Kokil, reported in AIR 1984 SC 1022, the Supreme Court, at Paragraph 10, held as follows:
"It is well-known that a non-obstante clause is a legislative device which is usually employed to give over-riding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."
In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, reported in 1986 (4) SCC 447, at Paragraph 67, the Supreme Court held as follows:
"67. A clause beginning with the expression "notwithstanding any thing contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned Page 28 of 35 R/CR.MA/6219/2018 JUDGMENT the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in the South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR
280."
In Narcotics Control Bureau v. Kishan Lal, reported in AIR 1991 SC 558, the Supreme Court, at Paragraph 6, held as follows:
"The NDPS Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 Cr. P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act. The non- obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail."
In R.S.Raghunath v. State of Karnataka reported in 1992 (1) SCC 335, the Supreme held as follows:
"In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under:
"A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of Page 29 of 35 R/CR.MA/6219/2018 JUDGMENT such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."
It is also well-settled that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India etc. v. Peerless General Finance and Investment Co. Ltd. & Ors.. [1987] 1 SCC 424, it is observed that "That interpretation is best which makes the textual interpretation match the contextual". In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of interpretation of statutes held thus:
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
In Vishin N.Kanchandani v. Vidya Lachmandas Khanchandani, reported in AIR 2000 SC 2747, at Paragraph 11, held that:
Page 30 of 35R/CR.MA/6219/2018 JUDGMENT "There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind."
An order granting or refusing bail is an interlocutory order. Clause (1) of Section 14A of the Amendment Act, 2015, provides that no appeal would lie against any interlocutory order passed by a Special Court. However, an exception has been carved out in clause (2) of Section 14A, which provides for an appeal against an "interlocutory order" passed by the Special Court or the Exclusive Special Court, either granting or refusing bail under the SC & ST Act, 1989. Thus, it can be said that sub-section (2) of Section 14A is based on the doctrine of reasonable classification and it is to be read as an exception to the general principle. The order granting or refusing bail is, therefore, an order against which an appeal is permitted under Section 14A(2)of the Amendment Act, 2015. Thus, the other 'interlocutory orders' passed by the Special Court or the Exclusive Special Court, as the case may be, are not appealable at all in view of the provisions prescribed under Section 14A(1) of the Amendment Act, 2015. This is because as provided under sub-section (3) of Section 14 every trial under the SC & ST Act, 1989 is to proceed on day-to-day basis and has to be conducted expeditiously. Therefore, no appeal is provided against any other 'interlocutory orders' passed by the Special Court or the Exclusive Special Court, as the case may be. The Page 31 of 35 R/CR.MA/6219/2018 JUDGMENT reasoning behind the exception carved out is because those orders are concerning the liberty of the accused, as would appear from the interpretation given to in pari materia provisions of Section 21(1) and (4) of the NIA Act by the Supreme Court in State of A.P. v. Mohammad Hussain (supra).
I have already noted above that the Amendment Act, 2015, has been brought in order to strengthen the existing Act and to make the relevant provisions of the Act more effective. It was brought by the legislature being concerned with the continuing allegation of atrocities, despite the provisions of the enabling Act, against the members of the Scheduled Castes and the Scheduled Tribes and for providing speedy trial of the cases, and in order to achieve the said purpose, Special Courts and Exclusive Special Courts have been provided and created.
In the light of what has been laid down in Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988)2 SCC 271, State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003)8 SCC 50, State of A.P. v. Mohd. Hussain alias Saleem, (2014)1 SCC 258, there can be no escape from the conclusion that if an application for bail made before a Special Court or an Exclusive Special Court is granted or refused, an appeal under Section 14A of the Amendment Act, 2015, shall lie to the High Court. It is also clear from the above discussion that against an order granting or refusing bail passed by a Special Court or an Exclusive Special Court no application for bail under Chapter XXXIII of the Code shall lie before the High Court.
It is also evident that the provisions of the Amendment Act, 2015, are in clear contradistinction with that of the Code where Page 32 of 35 R/CR.MA/6219/2018 JUDGMENT no appeal is provided against the order granting or refusing bail. Further, an appeal would lie only against an order of the Special Court or the Exclusive Special Court and unless there is an order of the Special Court or the Exclusive Special Court granting or refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail. Thus, existence of an order of the Special Court or the Exclusive Special Court is sine qua non for approaching the High Court in appeal.
However, an accused may, in terms of Section 14A(2) of the Amendment Act, 2015, prefer an appeal to the High Court against an order passed by the Special Court or the Exclusive Special Court, as the case may be, refusing to enlarge him on regular bail or anticipatory bail in exercise of power conferred under Chapter XXXIII of the Code. If a Special Court or an Exclusive Special Court, as the case may be, grants bail under the SC & ST Act, 1989, the State cannot invoke the High Court's power under Section 439(2) of the Code for cancellation of bail. The remedy of the State also lies in preferring an appeal before the High Court in terms of Section 14A(2) of the Amendment Act, 2015.
In the Code, the provision for appeal against acquittal has been made under Section 378. An appeal against acquittal is not maintainable without leave of the Court in terms of Section 378(3) of the Code. When an order granting or refusing bail has been made appealable, a question would have arisen whether an appeal preferred by the State against an order of bail would require leave of the High Court. It appears from the reading of the provisions of the Amendment Act, 2015 that the Parliament Page 33 of 35 R/CR.MA/6219/2018 JUDGMENT in order to override any such objection, as a matter of caution, deemed it appropriate to introduce into Section 14A(2) non- obstante clause by using the expression "notwithstanding anything contained in sub-section (3) of Section 378 of the Code"
so that an appeal against an order granting bail preferred by the State does not require leave of the High Court.
Thus, sub-section (2) of Section 14A of the Amendment Act, 2015 has an overriding effect on the limitation placed by sub-section (3) of Section 378 of the Code. It is in this context the Parliament has made a reference to sub-section (3) of Section 378 of the Code in Section 14A(2) of the Amendment Act, 2015 and no other meaning can be attached to the said expression used in Section 14A(2) of the Amendment Act, 2015. (See Suman Thakur and others v. State of Bihar, 2016(4) PLJR 300) In view of the aforesaid findings of this Court, the preliminary objection raised by Mr.Amin, the learned Public Prosecutor as regards the maintainability of this application seeking anticipatory bail under Section 438 of the Code is upheld. This court declares and holds that this application under Section 438 of the Code is not maintainable. It shall be open for the applicant to file an appropriate appeal under Section 14A of the Amendment Act, 2015.
Henceforth, the registry is directed that against an order passed by a Special Court (Atrocity), granting or refusing anticipatory bail or regular bail, no application for bail under Chapter XXXIII of the Code shall be entertained, numbered and listed.
(J.B.PARDIWALA, J.)
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/MOINUDDIN
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