Bisheshwar Mishra & Anr vs The State Of Bihar on 9 August, 2016

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Patna High Court - Orders

Bisheshwar Mishra & Anr vs The State Of Bihar on 9 August, 2016

2. The petitioners apprehend their arrest in Bhabhua (Sonhan) P.S. Case No. 312 of 2016 registered for the offences punishable under Sections 341, 323, 504 and 34 of the Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. At the outset of the argument, the maintainability of this bail petition under Section 438 of the Code of Criminal Procedure is raised. Learned Special Public Prosecutor submitted that in view of newly amended Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act" for the sake of brevity), an appeal shall lie from any order passed by a Special Court or an Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 2/12 Exclusive Special Court, to the High Court both on facts and on law.

4. On the contrary, Mr. Alok Choudhary, learned counsel for the petitioners, made two fold arguments. Firstly, the learned counsel for the petitioners submitted that in view of Section 18 of the Act, there is no application of Section 438 of the Code of Criminal Procedure but in view of the law laid down by the Supreme Court in the case of Vilas Pandurang Pawar and Another v. State of Maharashtra and Others, reported in AIR 2012 SC 3316 and this Court also in the case of Sajjo v. The State of Bihar, reported in 2010 (2) PLJR 690, bar of Section 18 of the Act is not ipso facto applicable; but prima facie the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out, the bar of Section 18 of the Act shall come into play and the application under Section 438 of the Cr.P.C. is not maintainable.

Learned counsel for the petitioners further submits that once Section 438 of the Code of Criminal Procedure is made applicable, if the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out. This Court in Munna Shaw @ Munna Saw v. The State of Bihar with others (Cr. Misc. No. 24836 of 2016 & its Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 3/12 analogous cases) held that the order passed under Section 438 of the Code of Criminal Procedure is not appealable and the legislature did not envisage the word "bail" under Section 14A (2) of the Act, it 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. Therefore, the present application under Section 438 of the Code of Criminal Procedure is maintainable.

5. So far as the first contention is concerned, it would be apt to firstly reproduce Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is as follows:

"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."

6. On a plain reading of Section 18 of the Act, it is Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 4/12 evident that if the offence under Section 3 of the Act prima facie appears to have been made out, the bar of Section 438 of the Code of Criminal Procedure is applicable. Firstly, the Supreme Court in the case of Vilas Pandurang Pawar (supra), in para-9 of the judgment, held as follows:

"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 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 Special 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 provision in the Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 5/12 Special Act cannot be easily brushed aside by elaborate discussion on the evidence."

Relying on the judgment of the Supreme Court as well as the pronouncements of the other Courts, this Court in Sajjo v. The State of Bihar (supra) held in para-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 (sic-our?) 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 Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 6/12 in the FIR or the complaint petition regarding commission of the offences under SC & ST Act would not itself denude the court to exercise its power under Section 438 Cr.P.C.

(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 Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 7/12 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."

7. Thus, from a perusal of the aforesaid judgments, it is evident that the provision of Section 438 of the Code of Criminal Procedure is made applicable, if prima facie case on the facts stated in the complaint or FIR does not appear to be made out under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

8. So far as the second question for consideration is concerned that Section 14A of the Act does not contemplate that Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 8/12 the order passed under Section 438 of the Code of Criminal Procedure is not appealable only because provision of Section 438 of the Code of Criminal Procedure is not applicable only when no prima facie case under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out and, therefore, the legislation did not intent that even the order passed under Section 438 of the Code of Criminal Procedure is made appealable under Section 14A (2) of the SC/ST Act.

9. The Hon'ble Singh Bench in the case of Munna Shaw @ Munna Saw and others (supra), has distinguished the pre-arrest and post-arrest bail and, on that ground, held that in the pre-arrest bail, Section 14A (2) is not applicable and, therefore, the order passed even by the Special Judge under Section 438 of the Code of Criminal Procedure is not appellable.

It would be apt to reproduce Section 14A of the SC & ST (Prevention of Atrocities) Act, 1989 :

"[14A.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 Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 9/12 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 Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 10/12 within a period of three months from the date of admission of the appeal.]"

10. Before Amendment Act, 2015 (Act No. 1 of 2016) by which different amendments have been brought about including Section 14A in the SC/ST Act there was a committal proceeding and the Special Judge was empowered to try the cases. But after amendment, by Act 1 of 2016 the second proviso of Section 14 empowers the Special Court to directly take cognizance of offence under this Act. Therefore, it appears that the committal proceeding is given a go-by and now the case, FIR or the complaint has to be directly filed to the Special Court which is empowered to take cognizance.

11. Accordingly, the petition under Section 438 of the Cr.P.C. has to be filed before the Special Judge, SC/ST Act. On a plain reading of Section 14A (2) of the Act, it is crystal clear that from any order passed by the Special Judge, except interlocutory order, there shall be an appeal and the aforesaid provision does not differentiate any order passed on the petition under Section 438 of the Code of Criminal Procedure or Section 439 of the Code of Criminal Procedure read with Section 440 of the Code of Criminal Procedure. The Hon'ble Single Bench of this Court in the case of Dinesh Kumar and Others (Cr. Misc. No. 24733 of 2016) has Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 11/12 held that in view of the provisions of 14A (2) of the SC/ST Act, the order passed under Section 438 of the Code of Criminal Procedure by a Special Court is appelable and application in the High Court under Section 438 of the Code of Criminal Procedure is not maintainable. But, it appears that the Hon'ble Single Bench in the case of Munna Shaw @ Munna Saw and Others (supra) has not taken into account the law laid down by himself in the case of Dinesh Kumar and Others (Cr. Misc. No. 24733 of 2016) and, therefore, the order passed in Cr. Misc. No. 24836 of 2016 by the Hon'ble Single Bench appears to be per incurrium and I also subscribe to the view that after coming into force the provisions of Section 14A (2) of the Act any order passed by the Special Judge under the SC/ST Act, except the interlocutory order, is appelable simply on the ground that the bail includes pre-arrest bail or post- arrest bail and there is no distinction one is, when the accused is outside the jail, and another, when the accused is inside the jail. This view has been held by the Hon'ble Apex Court also in the case of Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, reported in (1980) 2 SCC 565 and in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, reported in (2011) 1 SCC 694.

12. But since there is a conflicting view of the same Patna High Court Cr.Misc. No.25276 of 2016 (7) dt.09-08-2016 12/12 Hon'ble Judge in two cases, I thought it proper that the matter be decided by the Division Bench of this Court.

13. Accordingly, let the case be placed before Hon'ble the Chief Justice for needful.

(Prabhat Kumar Jha, J.) KKSINHA/-

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Patna High Court - Orders