Kerala High Court
Ajan G.Krishnan vs The State Of Kerala on 14 November, 2016
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938
CRL.A.No. 1337 of 2016
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CRL.M.P.NO. 3105/2016 OF SESSIONS COURT, KOLLAM
CRIME NO. 2173/2016 OF SASTHAMCOTTA POLICE STATION , KOLLAM
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APPELLANT(S) :
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AJAN G.KRISHNAN,
AGED 39 YEARS, S/O. GOPALAKRISHNAN,
RESIDING AT MULLASSERIL VEEDU, KANDRAMKANI,
PATTAMTHURUTH P.O, MANROE ISLAND, KOLLAM TALUK
BY SRI.S.SREEKUMAR (SENIOR ADVOCATE)
ADVS. SRI.R.GITHESH
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT(S)/COMPLAINANT :
----------------------------------------------------
1. THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKUALAM.
2. THE DEPUTY SUPERINTENDENT OF POLICE,
KOLLAM RURAL, KOTTARAKKARA, KOLLAM
BY PUBLIC PROSECUTOR, KOLLAM.
BY PUBLIC PROSECUTOR SRI. E.C.BINEESH
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
CRL.A.No. 1337 of 2016
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE I: TRUE COPY OF ORDER IN CRL.M.P.NO. 3105 OF 2016 IN
CRIME NO. 2173 OF 2016 OF SESSIONS COURT, KOLLAM
DATED 14.11.2016.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.A.TO JUDGE
Msd.
"CR"
RAJA VIJAYARAGHAVAN, V., J.
------------------------------------------ Crl.A. No.1337 of 2016
------------------------------------------ Dated this the 6th day of January, 2017 J U D G M E N Txx ~~~~~~~~
1.The appellant is the sole accused in Crime No.2173 of 2016 of the Sasthamcotta Police Station registered alleging offence punishable under Sections 354, 354A, 376 of the IPC and Section 3(r), (s) and (w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989( Act 33 of 1989 for brevity ).
2.Faced with imminent arrest and detention, the appellant approached the Court of Session, Kollam, which is the Special Court designated for trial of cases under the Act 33 of 1989, and moved an application seeking pre-arrest bail. The said application was dismissed outright holding that the Special Court had no jurisdiction to entertain an Crl.A.1337/2016 -2- application under section 438 of the Act as the offence involved was one under section 3 of the Act .
3.The said order is challenged in appeal filed under section 14 A (2) of the Act .
4.Heard Sri S.Sreekumar, the learned Senior Counsel appearing for the appellant as well as Sri E.C. Bineesh, the learned Public Prosecutor .
5.The learned Senior Counsel argued that the learned Sessions Judge was at error in rejecting the application outright without making an endeavor to ascertain whether the ingredients of the offence was prima facie made out. According to the learned Senior Counsel, the mechanical rejection of the application without even perusing the FIR is clearly against all tenets of law and the law laid down by the Apex Court as well as this Court in a catena of judgments. The learned Senior Counsel would specifically Crl.A.1337/2016 -3- rely on the decision of the Apex Court in Vilas Pandurang Pawar & Anr. v. State of Maharashtra & Ors. [2012 (8) SCALE 577] to bring home his point .
6.Refuting the submissions, the learned Public Prosecutor would contend that in view of Section 18 of the Act 33 of 1989, appeal under section 14A(2) can be maintained before this Court only against an order of the Special Court or the Exclusive Special Court granting or refusing regular bail and not an anticipatory Bail. Section 18 acts as a clear bar in entertaining any application seeking pre- arrest bail and by that logic, Section 14A(2) cannot have any application. According to learned Public Prosecutor, the appeal is not liable to be entertained. It is further argued that Section 18 of the Act imposes an absolute bar against grant of anticipatory bail and the learned Sessions Court was justified in dismissing the application. Crl.A.1337/2016 -4-
7.I have considered the rival submissions and I have anxiously perused the impugned order.
8.Taking express note of the continuing incidents and allegations of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, despite the deterrent provisions of the Original Act, the Parliament made certain amendments in the Act, vide Amendment Act, 2015, which came into force, with effect from 26.01.2016. The Amendment Act, 2015, allowed for establishment of Exclusive Special Courts and appointment of Special Public Prosecutor for trial of offences, under the Act, to enable speedy and expeditious disposal of cases.
9.The term "Special Court", was defined under Section 2(d), and the "Exclusive Special Court" was defined under Section 2(bd) of the Act.
Crl.A.1337/2016 -5-
2(d)- "Special Court" means a Court of Session specified as a Special Court in section 14.
(bd) "Exclusive Special Court" means the Exclusive Special Court established under sub-section (1) of Section 14 exclusively to try the offences under this Act"
10.Section 14 of the Act has been substituted by the Amendment Act, 2015.
"14. Special Court and Exclusive Special Court-
(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:Crl.A.1337/2016 -6-
Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.
(2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible.
(3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:
Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet"
The proviso (2) of the amended Section 14 (1) of the Act, confers jurisdiction to the Special Courts and the Exclusive Special Courts, established under the Act, to take cognizance of the offences punishable under the Act without an order of committal."Crl.A.1337/2016 -7-
From a reading of the proviso (2) of the amended Section 14(1) of the Act, it is evident that the Special Court and the Exclusive Special Court have been vested with the power to directly take cognizance of the offence punishable under the Act without a committal.
11.Section 14- A of the Amended Act provides for appeals.
"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 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:Crl.A.1337/2016 -8-
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."
12.In other words, Section 14-A of the Act provides that no appeal would lie against any interlocutory order passed by Special Court or Exclusive Special Court. However, in so far an order granting or refusing bail is concerned, an exception has been carved out under clause (2) of Section 14-A, 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 Act.
Crl.A.1337/2016 -9-
13.Identical issue had come up for consideration before a Division Bench of the Patna High Court. Conflicting orders were passed by the learned Single Judges with regard to the applicability of Section 14A of the Act and hence the matter was referred to the Division Bench. In Bisheshwar Mishra and Others Vs State of Bihar (MANU/BH/105/2016), the following issues were raised.
(i) Whether a person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of pre-arrest bail provided in Section 438 of the Code?
(ii) Whether a Court of Session or the High Court, while dealing with an application for grant of pre-arrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not?
(iii) Whether an application, under Section 438 of the Code, for grant of pre- arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if Crl.A.1337/2016 -10- such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him ?
(iv) Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act ?
(v) Whether consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act ?
(vi) Whether an accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court ?
14.After exhaustively considering the various provisions and also the objects and scope of the amendment brought Crl.A.1337/2016 -11- 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 held relying on the 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 14-A(2) of the Act would lie before the High Court.
15.Though in a different context , a Single Judge of this Court had occasion to consider whether the word 'Bail' used in Section 21 (4) of the National Investigation Crl.A.1337/2016 -12- 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."
Anticipatory bail is explained as meaning, "an order of anticipatory bail constituting Crl.A.1337/2016 -13- 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.
16.On a close analysis of the provisions of the Act, there can be no doubt that only the Special Court or the Exclusive Special Court constituted under section 14 of the Act can have 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 Crl.A.1337/2016 -14- original criminal jurisdiction to entertain an application under section 438 or section 439 of the Code has been impliedly taken away by Section 14 A of the said Act. The power of the High Court in the matter is only appellate jurisdiction as provided under Section 14 A (2) of the said Act. Appeal can lie only against an order of the Special Court or the Exclusive 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 them. Existence of an order of the Special Court is, therefore, sine qua non for approaching the High Court. Having considered all the relevant aspects, the preliminary objection raised by the learned Public Prosecutor that an appeal cannot be maintained against an order refusing pre- arrest bail is rejected.
Crl.A.1337/2016 -15-
17.Insofar as the order impugned is concerned, the learned Sessions Judge has dismissed the application holding that an application under Section 438 of the Code cannot be entertained as the offence under Section 3 is alleged against the petitioner. In Vilas Pandurang Pawar (supra), the Apex Court had an occasion to deal with an application for grant of pre-arrest bail under Section 438 of the Code in a case, wherein the accused was charged with various offences under the IPC along with the provisions of the Act. After exhaustively considering the various aspects, it was held as follows in paragraph Nos. 8 and 9, as under :-
"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, there is a specific averment in the complaint, namely, insult or intimidation Crl.A.1337/2016 -16- with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
(9) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Patna High Court Cr.Misc. No.25276 of 2016 court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Specific Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provisions in the Special Act cannot be brushed aside by elaborate discussion on the evidence."
18.Thus, it is evident that though Section 18 of the Act creates a bar in invoking Section 438 of the Code, a duty is cast on the court to verify the averments in the FIR or Crl.A.1337/2016 -17- in the complaint to find out whether an offence under Section 3 of the Act has been prima facie made out against the accused. In case, a prima facie case is made out against the accused, the bar under Section 18 of the Act would squarely apply. However, it is settled that while considering the application under Section 438, it is not open to the Court to conduct a critical analysis of the materials on record or to conduct a roving enquiry into the matter.
In that view of the matter, the impugned order cannot be sustained. The appeal is allowed and the matter is remitted back for reconsideration in accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN, V. JUDGE Ps/6/1/17