Allahabad High Court
Sachin Thakur vs State Of U.P. on 21 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 54 Case :- CRIMINAL APPEAL No. - 2561 of 2017 Appellant :- Sachin Thakur Respondent :- State Of U.P. Counsel for Appellant :- Arun Kumar Singh, Satish Trivedi, Senior Advocate (A.C.) Counsel for Respondent :- G.A., Vinod Kant AAG Hon'ble J.J. Munir,J.
1. On 10.01.2018 when this appeal was called on for hearing the records of the court below that were summoned by the office post the admission of the appeal to hearing vide an order dated 06.06.2017 had been sent back on 24.10.2017 on account of an order made by the Court that the office may explain as to why records of the court below had been summoned without an order of the Court to that effect made in this appeal. This led the learned counsel for the applicant to submit that this matter being a criminal appeal, the same cannot be heard in the absence of records of the court below, at least record of those proceedings wherein the impugned order was made. He submitted that without the records being available before this Court in accordance with the salutary principle governing exercise of criminal appellate jurisdiction of the Court and the provisions of Code of Criminal Procedure1 applicable to final hearing of appeals, this appeal or for that matter any appeal of the present kind cannot be heard and determined.
2. This Court by a detailed order dated 10.01.2018 took notice of facts summarised above and undertaking a brief survey of the law on the subject, including relevant provisions of the Schedule Caste and Scheduled Tribe (Prevention of Attrocities) Act, 19892, the requirements under the Code relating to admission and hearing of appeals, the application of provisions as to hearing of criminal appeals to a relatively new found and an unfamiliar jurisdiction where actually and virtually a "bail appeal" has been provided for proceeded to frame the following questions for consideration in the limited context of the requirement of records to hear such appeals:
"1. Whether an appeal under Section 14-A(2) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 as amended by Act No. 1 of 2016 from an order of a Special Court or an Exclusive Special Court granting or rejecting a bail application, can be finally heard in the absence of records of the Special Court or the Exclusive Special Court?
2. Whether the record that would be required for the purpose of hearing the appeal would be confined to the bail papers before the Special Court/ Exclusive Special Court or the entire records of the case would have to be summoned?"
3. By the same order Sri Satish Trivedi, learned Senior Advocate was requested to assist the Court, and, he very kindly consented to do so, acting as an amicus curiae in the matter. Likewise, on a request from the Court, Sri Vinod Kant, learned Additional Advocate General, U.P. came forward to assist the Court and to put across the stand of the State in the matter.
4. The matter was heard on 10.01.2018, 18.01.2018, 19.01.2018, 23.01.2018, 25.01.2018, 30.01.2018 and orders were reserved on 31.01.2018.
5. Heard Sri Satish Trivedi, learned Senior Advocate acting as an amicus curiae assisted by Sri Sheshadri Trivedi, Advocate, Sri Arun Kumar Singh, learned counsel for the appellant in this appeal and Sri Vinod Kant, learned Additional Advocate General, U.P. assisted by Sri Nikhil Chaturvedi.
6. At the out set the learned counsel were requested to apprise the Court about the provisions that were paremateria to Section 14A(2) of the Act and, if at all in other statutes providing for an appeal from an order granting or rejecting bail by a Court, where such provision exist, what are the provisions of that law or authority in relation to those provisions or rules and practice in relation to such provisions of this Court or other High Courts specifically governing the procedure and practice under such cognate provisions relating to the requirement of summoning of records at the hearing of appeals. Sri Satish Trivedi, learned Senior Advocate apprised the Court of the provisions of Sections 34(1) and 34(4) of Prevention of Terrorism Act, 2002 (POTA), Section 19(1) of Terrorist and Disruptive Activities (Prevention) Act (TADA) and Section 21(4) of the National Investigation Agency (governing the NIA) all of which provide appeals from orders granting or refusing bails. However, learned counsel on both sides despite sincere efforts made could not lay their hands on any specific statutory provision, rule, practice or judicial authority relating to hearing of appeals under any of the provisions of the statutes last mentioned from orders granting or refusing bail that would indicate the procedure as to summoning of record from the court below at the hearing of appeals.
7. Sri Satish Trivedi, learned Senior advocate, Sri Vinod Kant, learned Additional Advocate General, U.P. then made extensive efforts to apprise the Court of any rule, practice, procedure or judicial authority bearing on the question as to the requirement of records at the hearing of appeals under Section 14A(2) of the Act, which has come in through a relatively recent amendment by virtue of Act No.1 of 2016 enforced w.e.f. 26.01.2016.
8. Sri Satish Trivedi, learned Senior Advocate as well as Sri Vinod Kant, learned Additional Advocate General, U.P. very candidly submitted before this Court that there is no direct authority which they could lay their hands on answering the specific question involved here. They, therefore, proceeded to make their submissions in order to assist the Court to find an answer that would furnish a lawful, workable and pragmatic procedure for hearing of appeals arising under Section 14A(2) of the Act in the matter of requirement of records of the Special Court or exclusive Special Court while deciding a bail application from which appeals are carried to this Court. Sri Satish Trivedi, Senior Advocate has invited the attention of the Court to Chapter IV of the Act dealing with the Special Court or the Exclusive Special Court as also to Chapter IV-A which deals with the rights of victims and witnesses to submit that a reading of Sections 14, 14A occurring in Chapter IV and Section 15A, it is evident that there is no wholesome exclusion of the general law embodied in the Criminal Procedure Code or even the Limitation Act as would appear from the provisions of Section 14A(1)(2) & (3) providing for appeals and Section 14(1)(2) & (3) providing for establishment of Exclusive Special Courts and in certain cases notification of Sepcial Courts to deal with trial of offences under the Act.
9. In the submission of Sri Trivedi the provisions of the Code would continue to apply to trials before Special Courts and Exclusive Special Courts under the Act and to hearing of appeals from orders of those Courts in accordance with the Code except to the extent that certain provisions of the Code are excluded by enactment of a special provision in the Act. He points out that whereever a special provision excluding the operation of the Code or for that matter even the limitation Act has been engrafted under the Act, there is specific exclusion of the provisions of the Code or the other law (say the Limitation Act) by expressing the exclusion and, to the extent it is done by employing a non-obstante clause. Sri Trivedi has elucidated his submission by making a specific reference to the provision of Section 14A of the Act which exclusively deals with appeals from orders of Special Courts or Exclusive Special Courts established or modified under Section 14 of Chapter IV of the Act dilating on various aspects of this particular provision. He submits with reference to Section 14A(2) of the Act that an appeal of right has been provided to the High Court from orders of Special Court or an Exclusive Special Court granting or refusing bail, notwithstanding anything contained in Sub-Section (3) of Section 378 Cr.P.C.
10. In the submission of Sri Trivedi the provision, therefore, creates a right of appeal from an order of the Special Court or the Exclusive Special Court granting or rejecting bail and makes that appeal a matter of right by excluding the embargo of Section 178(3) of the Code that requires leave of the High Court before an appeal is entertained though he submits that the said provision applies exclusively to an appeal from a judgment of acquittal of a criminal court under the general law. The submission is made to substantiate the proposition that the Act is not a complete and wholesome Code and depends for everything about criminal procedure on the general law, that is to say, the Code and also the other Codes of general law like the Limitation Act, except to the extent that these Codes of general law are specifically excluded; and, also to the extent that a new right is created under the Act, as in the present case, a right of appeal from an order of bail or rejection of a bail application by a Special Court or an Exclusive Special Court. Sri Trivedi submits, therefore, that to the extent that there is no special provision under the Act or a specific exclusion of the relevant provisions of the Code, the Code would apply to all matters governing trial, hearing of appeals, disposal of bails and the like.
11. In order to particularly substantiate his contention Sri Trivedi has invited the attention of the Court to Section 15A of the Act occurring in Chapter IV-A of the Act. The Chapter being titled "Rights of victims and witnesses". Section 15A(5) of the Act referred to by Sri Trivedi reads thus:
"15A(5). A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing."
12. Sri Trivedi, learned Senior Advocate on the strength of the aforesaid provisions submits that it refers to proceedings under the Act in respect of bail, discharge, release, parole, conviction or sentence of an accused all of which are matters provided for else where, to wit, under the Code and the Jail Manual. Thus in the submission of the learned Senior Counsel all matters not dealt with or provided for or specifically excluded under the Act would be governed by the general law, including the Code.
13. Sri Trivedi has submitted that since the procedure for hearing be it an appeal under Section 14A(1) or 14A(2) has not been provided under the Act, the provisions of the Code would in terms apply to hearing of these appeals, including an appeal under Section 14A(2). He has invited the attention of the Court to the provisions of Chapter XXIX of the Code titled "APPEALS". He submits that Section 372 of the Code specifically says that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. In his submission the Code in itself postulates creation of the right to an appeal from the judgment of a Criminal Court under any other law for the time being in force. The Special Court or the Exclusive Special Court created, established or notified under Chapter IV of the Act would thus be a Criminal Court within the meaning of Section 372 of the Code from the orders of which appeals have been provided under Sections 14A(1) and 14A(2) of the Act.
14. Learned Senior Counsel has then referred to the different kinds of appeals contemplated and the right to such appeals created under Chapter XXIX of the Code: Section 373 provides for appeals from orders requiring security for keeping peace and for good behaviour; Section 117 for rejecting or refusing to accept a surety under Section 171; Section 374 provides for appeals for convictions; Section 375 provides for appeals from orders of Subordinate Courts not being a High Court in cases of conviction where the accused pleads guilty limited to the extent or legality of the sentence; Section 377 envisages such an appeal on the quantum of sentence alone by the State Government; Section 378 postulates an appeal from a judgment of acquittal by the State or by the complainant in cases instituted upon a complaint; Section 379 of the Code provides for appeal against conviction by the High Court in certain cases.
15. Sri Trivdi has submitted that across the entire Chapter governing various kinds of appeals under the Code there is no appeal provided from an order of any court granting or rejecting bail. However, that right has been created under Section 14A(2) of the Act against an order of a Special Court or Exclusive Special Court granting or rejecting bail which but for the exercise of that right by the person aggrieved would be final. He submits, as said earlier, the procedure for dealing with such an appeal nevertheless is to be drawn from Chapter XXIX of the Code. Reverting to the provisions of the said Chapter of the Code which deals with procedural aspects including the hearing of an appeal, he has, in particular, referred to the provisions of Sections 384 & 385 of the Code. Section 384 of the Code provides for summary dismissal of an appeal and says that upon examining of the petition of appeal and a copy of the judgment received under Sections 382 or 383 of the Code, if the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. Section 385 of the Code details the procedure for hearing of appeals not dismissed summarily.
16. Sri Trivedi has laid much emphasis on the provisions of Section 385(2) of the Code and, therefore, it would be in the interest of a better appreciation to quote the provisions of Section 385 of the Code in extenso:
"385. Procedure for hearing appeals not dismissed summaril.-- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given--
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground."
(Emphasis by Court)
17. In the submission of learned Senior Counsel while Section 385(1) of the Code speaks about the issue of notice in cases of an appeal not dismissed summarily and specifies the person to whom notice is to go and the papers to be served alongwith the notice. Sub-Section (2) of Section 385 of the Code carries a positive mandate that the appellate court shall send for the record of the case, if such record is not already available in the Appellate Court and hear the parties. Learned Senior Counsel has emphasised that the proviso to Sub-Section (2) to Section 385 of the Code carries an exception to the mandatory summoning of record for the purpose of hearing of any criminal appeal not dismissed summarily and exempts that requirement in cases of an appeal that is confined only to the extent or the legality of the sentence. He submits that in all other cases the mandate of Section 385(2) of the Code spares no scope for an appeal to be heard without the record of the case being sent for and available to the Court at the time of hearing. No other exception to the rule of record being sent for and available at the hearing in any kind of appeal is envisaged.
18. Sri Trivedi, leanred Senior Counsel has, therefore, urged that an appeal under Section 14A(2) of the Act being ex facie an appeal from an order of a Criminal Court the procedure for the hearing of which is provided under the Act, the provisions of Chapter XXIX of the Code including Section 385(2) of the Code would be applicable necessitating the summoning of records of the Special Court, confined and related to proceedings of the bail application alone, where the order granting or refusing bail has been made by a Special Court or an Exclusive Special Court.
19. Sri Vinod Kant, learned Additional Advocate General appearing for the State on the other hand submits that though the provisions of the Act as to trial and appeals are not a complete Code and except to the extent that special provision relating to procedure governing trials and appeals have been made under the Act, including the fora for trial under the Act, and, appeals from orders of the Special Court or Exclusive Special Court to the specified forum, also provided under the Act besides the special rule of limitation, all other substantive and procedural details governing such trials and the procedure for hearing appeals would be governed by the provisions of the Code. To the said extent the learned counsel for the appellant Sri Arun Kumar Singh, Sri Satish Trivedi, learned Senior Advocate, the learned amicus curiae and the learned Additional Advocate General do not appear to be much at issue. However, Sri Vinod Kant, learned Additional Advocate General has raised a point of pragmatic difficulty of much consequence. According to him in case in every appeal carried to this Court under Section 14A(2) of the Act, not dismissed summarily, if at all that can be so, records of the Special Court or the Exclusive Special Court are summoned for the purpose of the hearing of such appeal as mandated by Section 485(2) of the Code, he submits that even if the original reocrds relating to the bail application alone are summoned, it is bound to lead to two kinds of different consequences depending upon the stage of proceedings. In his submission, in those cases where investigation is still under progress and a bail application is granted or rejected by a Special Court or Exclusive Special Court summoning of records for the purpose of hearing an appeal from that order as the one under Section 14A(2) of the Act by this Court would result in stalling the investigation or at least seriously hampering it, investigation being a sensitive matter where the element of time has the most important role.
20. In the second place learned Additional Advocate General submits that in cases where a charge sheet has already been filed and trial is in progress, summoning of records, even limited to proceeding of the bail application, in all likelihood, would seriously hamper or emberass the ongoing trial.
21. In the submission of Sri Vinod Kant, learned Additional Advocate General this pragmatic difficulty has arisen owing to the generic difference in the nature of appeals of different kinds contemplated under Chapter XXIX of the Code, for that matter under Section 14A(1) of the Act on one hand, and, an appeal under Section 14A(2) of the Act inasmuch as in all appeals contemplated under Chapter XXIX of the Code and Section 14A(1) of the Act proceedings before the trial court have reached terminus ad quem and nothing by way of proceeding survives before the Court of first instance much less before the Investigating Agency that would be likely to be impared in any manner as a result of the records being sent for by the court of appeal. However, in the submission of the learned Additional Advocate General that difficulty, real and potent stares in the face in the event records in an appeal arising from a bail matter are called for by this Court strictly adhering as to the mandate of Section 485(2) of the Code.
22. Learned Additional Advocate General, therefore, submits that a pragmatic approach has to be adopted devising a manner where the records of the entire bail proceedings before the Special Court or the Exclusive Special Court are available to this Court at the time when an appeal is heard, and, at the same time a pending investigation at a critical stage or turn of events is not impared or the progress of an ongoing trial not halted, inhibited or embarrassed. In the submission of Sri Vinod Kant, learned Additional Advocate General that can be achieved by requiring the appellant to file alongwith the appeal certified copies of the following documents that would in all eventualities constitute the entire records of bail papers or the bail proceedings before a Special Court or an Exclusive Special Court:
(i) a certified copy of the order of the Special Court granting or refusing bail;
(ii) a certified copy of the bail application alongwith its annexures if any filed by the accused before the Special Court or the exclusive Special Court as the case may be;
(iii) a certified copy of any affidavit or any document which has been relied by the accused in support of his bail application before the Special Court or the exclusive special court as the case may be;
(iv) a certified copy of the comments (parawise reply to the bail application) filed by the prosecution before the special court/exclusive Special Court in response to the bail application brought by the accused;
(v) a certified copy of the order sheet of the special court/exclusive Special Court relating to the bail application alone from the date of its institution to the date of its disposal alongwith a certified copy of the remand file.
23. In addition, the learned Additional Advocate General submits that the learned Additional Government Advocate may be required to produce the case diary at the time of hearing of the appeal alongwith instructions and may also be required to serve a notice to the victim/complainant in accordance with the provisions of Section 15A(3) of the Act that apply to the hearing of appeals from bail matters under Section 14A(2). Learned Additional Advocate General, however, submits that the aforesaid procedure for obviating difficulties in hearing appeals arisen from bail matters disposed by a Special Court or Exclusive Special Court under the Act in the matter of summoning of records of bail proceedings from that court may be adopted and followed as a mater of convenience, pragmatism, prudence and dispatch but would certainly not in any way constitute a fetter on the power of this Court to summon the record relating to bail proceedings from the concerned Special Court or Exclusive Special Court under Section 458(2) of the Code whereever and whenever this Court considers it desirable to do so in the facts of a given case.
24. Learned Additional Advocate General was requested to apprise the Court if there was any decision squarely answering the questions that have arisen during hearing or even close on analogy, particularly, as similar provisions relating to appeals from orders granting or refusing bails were pointed out by Sri Trivedi, learned Senior Counsel in the context of other statutes like the POTA, TADA and the NIA Act, allusion to which has already been made. The learned Additional Advocate General has placed before the Court orders passed by this Court in Criminal Appeal No.4513 of 2017 (Pujari Yadav V. State of U.P. & Anr.), Criminal Appeal No.12 of 2018 (Shankar V. State of U.P.)-(Lucknow Bench), Criminal Appeal No.1312 of 2017 (Devendra Yadav V. State of U.P.)-(Lucknow Bench), Criminal Appeal No.1825 of 2017 (Mathare Chaudhary V. State of U.P. & Anr.)-(Lucknow Bench) and Criminal Appeal No.1082 of 2017 (Sunil Singh V. State of U.P.)-(Lucknow Bench). All those orders are interim orders and do not address the point in issue.
25. Learned Additional Advocate General has also placed before the Court two orders dated 07.03.2017 and 03.07.2017 both passed in Criminal Appeal No.847 of 2017 by Madhya Pradesh High Court, the first being an order entertaining and the second disposing of the same. A perusal of those orders shows that the points for consideration here have not at all been raised or addressed.
26. In order to support his proposition that the mandate as to the necessity of summoning the record in a criminal appeal that is not summarily dismissed and is to be heard on merits provided undersection 485(2) of the Code is not an inflexible rule and can be suitably moulded or even exempted in certain cases, Sri Vinod Kant, learned Additional Advocate General has relied from the authority of the Supreme Court in Hanumant Dass V. Vinay Kumar & Ors.3. He has for the purpose depended upon paragraph 15 of the report which in the opinion of the Court can be wholesomely appreciated on a perusal of paragraphs 16, 17 and 18 also. Paragraphs 15, 16, 17 and 18 of the report in Hanumant Dass (supra) are extracted below:
"15. Lastly it was contended that the appeal was disposed of by the High Court even without summoning the record. There is no warrant for this assumption. No specific allegation has been made in the special leave petition that the record was not summoned. We have perused the judgment of the High Court and the tenor of the judgment indicates that the record must have been there before the court. There is copious reference to the materials on the record which could be possible only when the record was there before the court. Besides, the counsel for the appellant made a statement before the court that on the finding of fact recorded by the High Court he was entitled to an acquittal and in this view of the matter even if the record had not been summoned (for which there is no basis) that would not be fatal. Proviso to sub-sec. (2) of S. 385 itself provides ".....the court may dispose of the appeal without sending for the record" in a certain situation. The rigour of sub-sec. (2) of S. 385, which provides that "the Appellate Court shall then send for the record of the case....." has been taken away by the proviso in a certain situation. If the appellant himself says that the appeal can be allowed on the findings recorded by the Sessions Judge, the non-summoning of the record, if it was at all so, would not to our mind be fatal. The complainant was present with his counsel, the State Advocate-General was also present. If they had any grievance about the record, they would have raised an objection. Their non-objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.
16. Assuming for the sake of argument, that there were certain irregularities it the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice, as will be evident from S. 465 of the Criminal Procedure Code which reads:
"465. Finding or sentence when reversible by reason of error, omission or irregularity--
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
17. We have perused the judgment of the High Court which was placed before us in full. It shows that each and every aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.
18. On merits we fully agree with the appraisal of the evidence made by the High Court. It is not necessary to repeat the same over again. There is no eye-witness. The fate of the case hinges upon the circumstantial evidence. The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub-Inspector. The High Court also took into consideration the oral dying declaration on which the prosecution strongly relied. But even that declaration does not implicate the accused. The reason given by the High Court for acquittal in our opinion is cogent and plausible."
27. At the out set it may be mentioned that though this Court does find that equally pertinent submissions have been made by Sri Vinod Kant, learned Additional Advocate General as are those putforth by Sri Satish Trivedi, learned Senior Advocate, the amicus curiae, the principle laid down by the Supreme Court in Hanumant Dass (supra) would not come to the aid of the State inasmuch as no principle of a general relaxation or even a special relaxation to be generally followed was laid down with reference to Section 385(2) of the Code. Rather, it was on account of varied reasons in the facts of that case which arose from an appeal against conviction decided by the High Court that absence of record was not considered fatal. As such, in the opinion of the Court the decision relied upon by the learned Additional Advocate General is not applicable to the facts of the present case. That, however, is not to say that the point made by the learned Additional Advocate General does not have other or alternate buttress.
28. In order to appreciate the contentions on both sides for the purpose of answering the questions involved the ground issues to be examined are as to whether the Act is a complete Code in relation to inquiry, investigation, trial, appeal and other proceedings for offences provided under the Act, including the procedure for disposal of appeals, bail, parole and other matters or, the Act provides for certain matters relating to procedure governing trials, appeals, bails in respect of such offences, and, for the rest depends upon the genral law envisaged under the Code. Another ground issue of seminal importance is as to what generally is the definition, character and nature of an appeal and whether appeals envisaged under the Code are generically different from those envisaged under the Act, in particular, an appeal under Section 14A(2) or it is merely an addition of a specie to the pre-existing genus of proceedings known and understood under the Code as appeals.
29. It appears to be more convenient to address the second of the two ground issues first. A perusal of Section 2 of the Act shows that what proceedings are appeal or what is meant by an appeal is not defined under the Act. Nevertheless the Act provides for appeals vide Chapter IV in particular section 14-A of the Act. Since the word "appeal is not defined under the Act one has to fall back upon the provisions of Section 2(f) of the Act that reads thus:
"2(f) the words and expressions used but not defined in this Act and defined in the Indian Penal Code (45 of 1860), the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), as the case may be, shall be deemed to have the meanings respectively assigned to them in those enactments."
30. The aforesaid provision makes it evident that words and expressions used but not defined in the Act and defined under the Indian Penal Code, Indian Evidence Act, the Code, as the case may be shall be deemed to have the meanings respectively assigned to them in those enactments. In relation to the word "appeal" an examination of the Indian Penal Code, the Evidene Act or for that matter the Code shows that "appeal" is not defined in any of the enactments under the reference. By dint of Section 2(f) of the Act a word used in the Act but not defined can only be assigned a meaning or understood as defined under the specified enactments mentioned in Section 2(f) of the Act.
31. Since there is no definition of the word "appeal" in the Act or any of the statutes by reference to which the word could be understood, aid has to be taken from sources not cited in the Act and the referred statutes by taking resort to what is well known as extrisic aid in construction. Extrinsic aids are traditionally sourced in reputed law dictionaries, Law Lexicons, Treatises and such other works of unimpeachable authority that are universally accepted. The word "appeal" is defined in P. Ramanatha Ayyar's Advanced Law Lexicon by (3rd Edition) as follows:
"Appeal. "Is the right of entering a superior Court and invoking its aid and interposition to redress the error of the court below." (per WESTBURY. C., AG v. Sillem, 10 HLC 704 : 33 LJ Ex. 209." See also 22 Bom 500; 30 Cal 790.) "APPEAL" is defined in the Oxford Dictionary, volume I, page 398, as the transference of a case from and inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term "appeal" is defined as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court or Court of appeal, and it is added that the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen's Bench Division and the Court of Crown Cases reserved, and proceedings in error. In the Law Dictionary by Bouvier an appeal is defined as the removal of a case from a Court of inferior to one of superior jurisdiction for the purpose of obtaining a review and re-trial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and re-trial, while the latter is a Common Law process which involves matter of law only for re-examination; it is added, however, that the term "appeal" is used in a comprehensive sense so as to include both what is described technically as an appeal and also the common law writ of error; as put by Lord WESTBURY in Atttorney-General v. Sillem, 10 HLC 704, the right of appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. As Mr. Justice Subramania Ayyar observes in Chappan v. Moidin, 22 Mad 68 at p. 80 the two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power, on the part of the former, to review decisions of the latter.
In the Commentary on American Jurisprudence by Andrews, Volume II, page 1510, it is pointed out that appellate procedurer embraces two distint modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified; or, secondly, the superior tribunal may check the exercise or usurpation of power in inferior tribunals exercising judicial or quasi-judicial power, or direct the mode in which they shall proceed without controlling the manner of doing that which is the result of judicial deliberation. Story in his work on the Constitution (Volume II, Sections 1760 to 1776), points out the distintion between the original and the appellate jurisdiction of a Court, and observes that the characteristics of an appeal is the revision of a judicial proceeding of an inferior Court, so that the mode in which that power is exercised is wholly immaterial. Secretary of State v. British India Navigation Co., 9 Ind Cas 183 (185) (Per MOOKERJEE and COX. JJ.) The expression "appeal" in S. 5, Limitation Act XV of 1877, does not include an application for leave to appeal in forma pauperis (2 M. 230; 12 A. 179, Ref.)--Sural Chandra Dev v. Brojeshwari Dass--30 C. 790 (2 M. 230 : 12 A. 179 ref.) In Section 115, Civil Procedure Code (5 of 1908), and in Sections 15 and 39 of the Letters Patent the word "appeal" was used in a comprehensive sense so as to include both what is described technically as an appeal as also the common law writs of error. But the word 'appeal' seems to be used in its narrower sense in the Limitation Act. Subramanya Pillai v. Seethai Ammal, 12 Ind Cas 38, (per AYLING AND SPENCER, JJ.) "APPEAL." Defined, 53-4 V C. 27, S. 15, 8 Edw. 7, C. 51, S. 2.
An 'appeal' is an application by a party to an appellate Court asking it to set aside or revise decision of a subordinate Court. Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 : 59 (IA) 283 as referred in Tirupati Balaji Developers (P.) Ltd. v. State of bihar, (2004) 5 SCC 1, 15 para 11.
An 'appeal' is the removal of a cause or a suit from an inferior to a superior judge or Court for re-examination or review. Chappan v. Maidin Kutti, ILR (1899) 22 Mad 68, 80. Aso see Tirupati Balaji Developers (P.) Ltd. v. State of Bihar, (2004) 5 SCC 1, 15 para 11.
The word 'appeal' includes 'a second appeal'. Purohit Suarupuarain v. Gopinath, AIR 1953 Raj 137, 143 (FB). [S. 115, CPC (5 of 1908)]"
32. The definition of an appeal, its scope, trapping and nature as set out and extracted from the Law Lexicon (supra) carries reference to both Indian and Foreign Authority, as evident.
33. Likewise the word 'appeal' is defined in Halsbury's Laws of England, (37 Halsbury 677) of which the part relevant to the context-relevant with reference to the statutes in hand, and, to India reads thus:
"(7) APPEALS TO THE COURT OF APPEAL
677. General. An appeal is an application to a superior court or tribunal to reverse, vary or set aside the judgment, order, determination, decision or award of an inferior court or tribunal in the hierarchy of courts or tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected14. A right of appeal is conferred by statute or equivalent legislative authority; it is not a mere matter of practice or procedure, and neither the superior nor the inferior court or trinunal nor both combined can create or take away such a right.25"
34. An appeal in criminal law in general as a form of remedy jurisdiction in right is defined in 24 C.J.S. § 1623 as follows:
"Appeal. The right of appeal, in the narow or technical sence, is not an inherent or natural right, and exists when, and only when, it is conferred by constitutional or statutory provision, as shown infra § 1628. While in some jurisdictions an appeal by petition in error is not a continuation of the old case, but is in the nature of a new suit in the appellate court, in general an appeal is not regarded as a new suit, but as a continuation of the original action or proceeding, or a proceeding in the original cause; or, as sometimes stated, it is in the nature of a new trial on the record in the appellate court. It consists in securing the review, when proper, of a case in the appellate court on the taking by appellant of the steps necessary to secure such appellate review, or it is procedure by which the jurisdiction of the cause is transferred from the trial court to the appellate court for trial, not of the original issues in the lower court, but of the alleged errors of the trial court. It affords a plain, speedy, and adequate remedy to correct errors in rulings of an inferior court on issues involving its jurisdiction."
35. About general statutes relating to appeals vis-a-vis special statutes it is said in 24 C.J.S. § 1624 as follows:
"A general statute relating to appeals does not usually control the provisions of a special statute relating to appeals596. A statute governing appeals incriminal cases, which provides that the provisions thereof shall supersede conflicting provisions of law, is to be given effect in accordance with its terms duly construed607, and a later and conflicting statute repeals by implication a former statute.
Where a statute relating to appeals is amended by setting it forth in full as amended, the unchanged portions of the original statute are not repealed and reenacted, but are continued in force with the same meaning and effect after the amendment that they had before, and only those portions of the original statute which are not embraced in the statute as amended, if there are any, are repealed. The subsequent repeal of the original act repeals those provisions of the original act which were reenacted in the amendatory act or those provisions thereof which were continued in force by the amendatory statute and also the additions supplied by the amendatory act which are not so far complete within themselves that they can be understood and enforced standing alone. A statute which abolishes a court to which appeals are to be taken in certain cases dose not abolish the right to appeal in such cases where such statute vests in another court the jurisdiction theretofore exercised by the court so abolished."
36. It is not that the absence of a definition of "appeal" under a Special Act, and, in particular, the Code has not fallen for judicial consideration in the past. Much has been said on high authority dwelling on the issue but in all precedents on the point the connotation of the word "appeal" was determined with reference to extrinsic sources. A decision on the point is no less than the law laid down by the Supreme Court in State of Gujrat V. Salimbhai Abdul Gaffar Shaikh8 where in paragraphs 10 and 11 of the report dealing with the issue as to what an appeal would mean in the context of an appeal under Section 13(4) of the POTA it was held by the Supreme Court thus:
"10. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word 'appeal' is used both in Code of Criminal Procedure and Code of Civil Procedure and in many other Statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning which is as under:-
"A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, specially the submission of a lower Court's decision to higher Court for review and possible reversal.
An appeal strictly so called is one in which the question is, whether the order of the Court from which the appeal is brought was right on the material which the Court had before it.
An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial. An appeal generally speaking is a rehearing by a superior Court on both law and fact."
11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, and in view of express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is therefore evident that the provisions of POTA are in clear contradistinction with that of Code of Criminal Procedure where no appeal is provided against an order granting bail. The 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 them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court."
37. Thus, looking to the meaning of the word appeal in the context of a statute which does not define the word and the fact that in law as general as the Code the word is not defined, it is but safe to hold in the context of the Act that the appeal postulated under Section 14A of the Act which includes an appeal under Section 14A(2) is the same as envisaged under the Code. It is no more than creation of a new right of appeal from an order granting or refusing bail which under the Code is not appealable; in short, the appeal postulated under Section 14A(2) of the Act is only an addition of a new specie to the existing genus of appeals under the Code that are governed by Chapter XXIX thereof.
38. This brings to the other ground issue as to whether the Act is a complete Code in relation to enquiry, investigation, trial, appeal and other proceedings in relation to the offences under the Act including the procedure for disposal of appeals or it only provides for certain matters in relation to these proceedings and for the rest depends upon the general law, that is to say, the Code.
39. An answer to the issue is to be found in the context of trials under the Act in a Full Bench Decision of the Rajasthan High Court in Bhura Lal & Ors. V. State & Ors.9. The issue that arose for consideration before their Lordships in that case was whether a Special Court created under Section 14 of the Act can take cognizance of cases triable by Sessions (Court) without committal proceedings under Secion 193 Cr.P.C. by the Magistrate. After answering the question in the manner that the Special Court envisaged by Section 14 of the Act is not another "Court of Session" but a distinct and separate Court that has to deal with cases before it not as a Court of Session but as Special Court, and, that therefore, it is not necessary that it could deal with only such cases which would have been triable by a Court of Session if the Special Court were not created by the Act it was held that for the same reason it is not necessary that cases have to be committed by a Magistrate to the Special Court under the Act. Section 193 of the Code was held to be applicable only to a Court of Sessions and not to the Special Court under the Act. Having held that, a concomitant of the question answered by their Lordships was as to what would be the procedure to be followed by the Special Court created under Section 14 of the Act. The said question was dealt with in Bhural Lal (supra) reads thus:
"29. The next question is what would be the procedure to be followed by the Special Court created under Section 14 of the SC/ST Act? As we have already seen under Section 4(2) of the Code of Criminal Procedure all offences under any other law than the IPC have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code subject to any enactment regulating the manner or place of the investigating, inquiring into, trying or otherwise dealing with such offences. There is therefore no doubt that in the matters for which procedure has not been prescribed by SC/ST Act the procedure prescribed by the Code of Criminal Procedure would apply and the Special Court under Section 14 of the SC/ST Act would try the offences by following the procedure prescribed by the Code subject to express provisions of the SC/ST Act."
(emphasis by Court) Section 4(2) of the Code reads as under:
"4(2). All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt 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."
40. Commencing with the meaning of the Code under Section 2(b) of the Act it is noticeable that it has been defined to mean the Code of Criminal Procedure, 1973; the provisions of Section 2(f) of the Act that provide that words and expressions used but not defined in this Act and defined in the Indian Penal Code, the Indian Evidence Act or the Code of Criminal Procedure, as the case may, shall be deemed to have the meaning respectively assigned to them in those enactments. The provisions of Sections 14, 14-A, 15 of the Act spare little doubt that the Act makes special provision for certain things in matters of trial and appeal for offence punishable under the Act but does not provide a complete Code for every detail of proceedings of different kinds before the Special Court or the Exclusive Special Court or for that matter before the Court entitled to hear appeals from judgments or orders of a Special Court or Exclusive Special Court. One particular index to the aforesaid scheme of the Act are the provisions of Section 15(5) of the Act, that have been extracted hereinbefore, a perusal of which shows that the Act assumes the existence, understanding and mechanism of certain proceedings of various kinds and steps in the course of those proceedings when it speaks about bail, discharge, release, parole, conviction, sentence or acquittal, none of which are matters even remotely defined under the Act much less provided for in detail.
41. Looking to the scheme of the Act the view taken in Bhura Lal (supra) to the effect that there is no doubt that in matters for which procedure has not been prescribed by the Act the procedure prescribed by the Code would apply, and, further that the Special Court under Section 14 of the Act trying offences is enjoined to follow the procedure prescribed by the Code subject to the provisions of the Act. A fortiori the same principle would apply to the hearing of appeals from judgments and orders passed by the Special Court or the Exclusive Special Court to which the provisions of the Code would apply in relation to all matters prescribed by the Code governing appeals subject to express provisions of the Act to the contrary.
42. Since the Act nowhere provides for or speaks about the procedure according to which an appeal under Section 14 is to be entertained, admitted, heard and decided, the provisions of Chapter XXIX of the Code in relation to the aforesaid matter must be held to apply, and, all those provisions including Sections 484, 485 and 486 of the Code would apply to hearing of appeals under Section 14A(2) of the Act.
43. Chapter XXIX of the Code deal with every detail of procedure, apart from prescribing what orders are appealable, and, to which Court, the manner in which the appeal is to be heard attending to the difference of detail for the procedure of hearing in a Court of Session and the High Court concerning certain matters while prescribing a common procedure in others what is of the most relevance here is that part that is common to procedure governing appeals to any Court; that deals with the contens of a petition of appeal, the manner of presentation of the appeal, procedure when the appellant is in jail, summary dismissal of appeal, procedure for hearing appeals not sumarrily dismissed and powers of the appellate court. It would be a profitable excercise at this stage to extract the provisions of Sections 382 to 386 of the Code, nothwithstanding the repitition of a small part of it done while noticing the contentions of Sri Satish Trivedi, learned amicus curiae in an earlier part of this order. Sections 382 to 386 of the Code are extracted hereinunder:
"382. Petition of appeal.-- Every appeal shall be made in the form of a petition in writing presented by the appeallant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.
383. Procedure when appellant in jail.-- If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.
384. Summary dismissal of appeal.-- (1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that-
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court con- siders that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case.
(3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4) Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.
385. Procedure for hearing appeals not dismissed summarily.-- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
386. Power of the Appellate Court.-- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper;"
(Emphasis by Court)
44. A conjoint reading of the provisions of the Code herein above extracted leave no manner of doubt that these are squarely applicable to the procedure governing appeals under Section 14A(2) of the Act except to the extent that a particular provisioin of the Code, including any part of the procedure encapsuled in the provisions under reference, is excluded by Act. Thus, an appeal under Section 14A(2) of the Act, from an order rejecting or granting bail has to be by petition in the manner prescribed in Section 382 of the Code and in a case where the prayer for bail in an offence under the Act is refused, the detenue in jail may avail the procedure under Section 383 of the Code. Shorn of reference to those of the provisions that are squarely applicable but not of much relevance to answer the question involved the pivotal provision is Section 385(2) of the Code. It has been quoted more than once. In this part of the judgment, the quoted provision has been emphasised.
45. A reading of Section 385 of the Code indicates that in all appeals that are not summarily dismissed under section 384 of the Code, Sub-Clause (1) of Section 385 of the Code requires notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader; to such Officer as the State Government may appoint in this behalf; if the appeal is from a judgment of conviction and in cases instituted upon complaint to the complainant; and, if the appeal is one under Section 377 or 378 of the Code, to the accused with a further requirement obliging the appellant court to furnish to the officer, complainant and the accused, as the case may be, with a copy of the grounds of appeal.
46. It may be noticed here that the requirement as to notice in case of an appeal under the Code envisaged under Section 385(1) of the Code that obliges the appellate court exclusively to ensure service of notice upon persons specified or the State to be served, Section 15(2) of the Act makes a special provision in regard to the right of reasonable, accurate and timely notice of any Court proceedings, including any bail proceedings, to a victim and obliges the Special Public Prosecutor or the State Government to ensure such reasonable, accurate and timely notice to the victim about proceedings in Court under the Act including bail. Thus, to the extent as to service of notice in an appeal under Section 14A(2) of the Act the procedure envisaged under Section 385(1) of the Code would stand modied by the provisions of Section 15(3) of the Act which do not derogate from the requirements of Section 385(1) of the Code obliging the appellate court to ensure service of notice of an appeal upon the persons/State mentioned there but creates an additional obligation upon the Special Public Prosecutor or the State Government to ensure service of notice of an appeal under Section 14A(2) of the Act upon the victim or his dependant which has to be a reasonable, accurate and timely notice as mandated by Section 15(3) of the Act. Thus, the provisions of Section 15(3) of the Act are an instnace of modification of procedure envisaged under the Code in regard to the hearing of appeals, specifically in relation to the facet of service of notice; however so, the modification brought in by Section 15(3) of the Act is not in derogation of the existing provisions of Section 385(1) of the Code but an addition to those requirements in "appeals" under Section 14, including appeals under Section 14A(2) of the Act.
47. The procedure regarding service of notice being dealt with brings in Section 385(2) of the Code, the next step in the course of hearing of an appeal not dismissed summarily; the provision has been twice quoted and needs no further reference in verbatim. However, the provisions of Clause (2) of Section 385 of the Code being the cynosure of all that the moot question involved in the case is about, the same is required to dealt with. All that Clause (2) of Section 385 of the Code says is that service of notice as mandated by Section 385(1) having been ensured, in this case, additionally ensured, as required under Section 15(3) of the Act, the appellate court shall then send for the record of the case, if such record is not already available in the appellate court, and, thereupon proceed to hear parties.
48. A reading of Section 385(2) leads to an inference that the employment of the words "shall then send for the record of the case" when read conjunctively with the provisions of Section 385(1) of the Code would require service of notice upon parties envisaged under Section 385(1) of the Code to be first ensured whereafter records are to be sent for in a case arising under the Act which may involve ensuring service of notice also upon the victim or his dependant as envisaged by Section 15(3) of the Act. It is, thereafter, that records of the case are to be sent for by the Appellate Court from the Court of first instance, in this case, the Special Court or the Exclusive Special Court. However, the provisions of Section 385(1) & (2) of the Code being quintessentially a part of the adjective law with nothing substantive about them, there has been the good practice in appeals governed by the Code alone of simultaneous initiation of both processes, that is to say, of issuing notice and summoning the record all at once to save on time. This has been done in keeping with the sound principle that all rules of procedure are but handmaids of justice, the way it has always been put proverbially.
49. There is a proviso to the general rule embodied in Section 385(2) of the Code obliging the appellate court to send for the records of the case before hearing parties and that proviso carves out an exception to the rule only in cases where the appeal is confined to the extent or the legality of the sentence; in cases of appeals confined to the extent or the legality of the sentence alone the Court is not obliged to send for the record.
50. The aforesaid proviso, therefore, in the opinion of this Court serves to support the proposition that the Appellate Court is obliged before hearing an appeal not summarily dismissed to send for the records, the only case of permissible exemption being an appeal confined to the extent or the legality of the sentence. There is no other exception envisaged by the Code. The Act, and, in particular, amendments brought about by the Act No.1 of 2016 are not only provisions of a Special Act that by its own terms and by principles applicable to the interpretation of the general law vis-a-vis a Special Law have overriding effect to the extent of conflict between the two, the Act being a subsequent legislation to the Code. Going by the settled cannons of interpretation a statute subsequently enacted is to be interpreted in the background of a presumption that the legislature was well aware of all the relevant provisions of statutes previously in force. Thus, while engrafting the provisions of Section 14A(2) of the Act by Act No.1 of 2016 into the Act, it has to be held that the legislature did not contemplate any further concession to the rule against summoning of records by the Appellate Court except the existing proviso to Section 385(2) of the Code. It is but a logical corollary to the above reasoning that an appeal preferred under Section 14A(2) of the Act would be as much subject to the rigour all the requirements as to summoning of record embodied in Section 385(2) of the Code as any other appeal under the Code.
51. In order to further test the mandatory nature of the requirement as to summoning of record by an Appellate Court, a reading of the opening words of Section 386 of the Code extracted above (also emphasised) shows that the Appellate Court can pass different kind of orders envisaged by the various clauses of Section 386(a) to (e) only "after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears,..." which go to show that the appellate court is obliged to hear the appeal not without perusing the record sent for from the Court of first instance though it may dispose of the appeal without hearing the appellant or his pleader and the Public Prosecutor or the accused inasmuch the obligation to hear is contingent upon the appellant or his pleader or the Public Prosecutor or the accused as the case may be, appearing. But as to the obligation to peruse records the words employed in Section 386 of the Code being "perusing such record" casts an unqualified obligation upon the appellate court to do so before it proceeds to dispose of the appeal.
52. There cannot be any gainsaying that the records required to be perused envisaged under Section 386 of the Code are the records sent for from the Court of first instance inasmuch as the phraseology of the Section 386 of the Code in its opening words "after perusing such record" that follow the provisions in Section 385 of the Code on plain reading leaves it to no manner of doubt that the record mandated to be perused by Section 386 of the Code, in the opinion of the Court, are the records of the first Court mandated to be summoned under Clause (2) of Section 385; that is how the word "record" in Section 386 of the Code is to be understood.
53 There is on this facet of the matter as to the requirements of Section 385(2) of the Code guidance of the Hon'ble Supreme Court in Bani Singh & Ors. V. State of U.P.10. In the said Authority though the issue required to be decided by their Lordships was whether the Appellate Court (High Court in that case) where the accused-appellant represented by a pleader fails to appear when the appeal is called on for hearing, the appellate court was empowered to dispose of the appeal after perusing the record on its own or it was mandated to adjourn the appeal to a future date and intimate the accused to be present on the next date fixed. There was also in that case before their Lordships a conflict of opinion betweent two, Two Judge Bench Decisions in AIR 1987 SC 1500 and AIR 1971 SC 1606, one approving dismissal of the appeal for non-prosecution and the other approving the course of a decision on merits after perusal of records in the absence of the appellant. In the said context their Lordships considered the requirements of Section 385(2) of the Code and held thus:
"8. Section 385(2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by subsection (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that `after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard."
54. In a somewhat different context the importance attached to the availability of record come up for consideration of their Lordships of the Supreme Court in State of U.P. V. Abhai Raj Singh11. The issue in that case was as to the proper course of action where records of the trial court were lost in an appeal against conviction. Their Lordships after refering to the decision in Bani Singh (supra) held thus (relevant part):
"6. .......After perusal of the records and hearing appellant's pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh and Ors. v. State of U.P. (1996 (4) SCC 720) the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the Appellate Court may dispose of the appeal after hearing as indicated.
7. A question would further arise as to what happens when the reconstruction is not possible. Section 386 empowers the Appellate Court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Sessions. (See State of U.P. v. Shankar and Anr. AIR 1962 SC 1154).
8. It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh (1889 A.W.N. 55) the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short 'the Old Code') made it obligatory for the Court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for re- construction. The said view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 (Madras) 391). The view has been reiterated by several High Courts as well, even thereafter."
55. Here it must be mentioned that Sri Vinod Kant, learned Additional Advocate General did refer to the decision of the Supreme Court in Hanumant Das (supra) to which detailed allusion has been made. It has also been indicated there that the said authority does not lay down any general or even a special rule of relaxation in the matter of the requirement as to summoning of record by the appellate court mandated by Section 385(2) of the Code.
56. It has, therefore, to be held that at the hearing an appeal under Section 14A(2) of the Act (the appeal being one not dismissed summarily under Section 384 of the Code) the requirement as to summoning of record of the Court of first instance is as much the requirement of law as in the case of any other appeal under the Code.
57. This takes us to the other aspect of the matter which is peculiar to an appeal under Section 14A(2) of the Act, that is to say, the pragmetic and practical difficulties arising from the process of summoning records of the Special Court of the Exclusive Special Court in an appeal from an order granting or refusing bail. Much has been said about this matter by Sri Vinod Kant, learned Additional Advocate General and said so the Court must acknowledge, not without substantial force. The submission on this score have been elaborately noticed in the earlier part of this order and do not require repetition. However so, the submission are of cardinal importance that require to be addressed and answered.
58. The difficulties that would arise in the case of summoning of rercords in an appeal under Section 14A(2) of the Act stem from the fact that these appeals created under the Act are from interlocutory orders where proceedings before the trial court or even an ongoing investigation is pending unlike appeals contemplated under the Code where proceedings before the Court of first instance have reached terminus ad quem.
59. In an appeal against an order of conviction or acquittal or most other kinds of appeal envisaged under the Code, so far as the Court of first instance is concerned, all proceedings come to an end before an appeal is filed. When an appeal is filed from such order, and records are called for, there is absolutely no difficulty as there are no divided proceedings between the Court of first instance and the appellate court. All that is required to be done is before the appellate court with no event left be dertermined in the Court of first instance.
60. In sharp contrast, as rightly pointed out by Sri Vinod Kant, learned Additional Advocate General, an appeal under Section 14A(2) of the Act is one filed against an order granting or refusing bail, at times even before a police report comes to be filed under Section 173(2) of the Code. In that eventuality, depending upon the understanding of the Investigating Agency and myriad factors, the entire process of the investigation may be impared at a critical juncture with the Investigating Agency laying its hands off of further investigation, deterred by the prospect that the High Court has sent for records of the case. Although, this is certainly not what the law would countenance for the Investigating Agency to do in case of summoning of records of bail proceedings alone but pragmatically speaking how differently an order sending for records may be construed by the innumerable Investigating Officers or the Investigating Agency themselves can certainly lead to many situations of the kind where investigation could get hampered resulting in some cases to irremediable reverses to investigation.
61. Equally possible is the other situation highlighted by Sri Vinod Kant, learned Additional Advocate General that on records being sent for from a Special Court or an Exclusive Court, the Special Courts concerned in their varied understanding may lay their hands off in the matter of further proceedings of the trial bringing ongoing trials to a halt. Again, that is not the requirement or the contemplation of law but it is a possibility which is to be seriously guarded against looking to the fact that trials under the Act relate to a special class of offences which the legislature has chosen to be dealt with carefully and with all promptitude at all stages, initially by establishing Special Courts under the Act and then by bringing in substantial amendment to the Act vide Act No.1 of 2016.
62. In order to reconcile the requirement of the statute that mandates record to be available to the appellate court, of proceedings from which it is hearing an appeal not dismissed summarily on the one hand, and, to obviate the adverse impact the process of summoning record may have on the ongoing investigation or the trial in cases of appeals under Section 14A(2) of the Act, it was much debated on both sides as to what the record would mean in the context of Secion 385(2) of the Code so far as appeals under Section 14A(2) of the Act are concerned, and, further whatever record from the Special Court or Exclusive Special Court is required to be sent for, can secondary evidence of the relevant record, as a general practice, in hearing of all appeals under Section 14A(2) of the Act, be the rule?
63. This Court is gratified to find that there is not much quarrel, and, in the opinion of the Court rightly so about what would constitute record for the purposes of an appeal under Section 14A(2) of the Act. Therefore, without any copious account of what was said on the issue, this Court holds that record for the purpose of an appeal under Section 14A(2) of the Act would only mean the papers relating to the bail application that are placed on file of the Special Court or the Exclusive Special Court upon presentation of an application for bail in an offence under the Act including the index of that application drawn by the office, all affidavits, documents filed on behalf of the applicant and the victim or his dependent, the comments (parawise to bail application) filed by the prosecution, the entire copy of the order sheet from the date of presentation of the bail application to its disposal--in short the entire record and proceedings on the file of the Speciel Court or the Exclusive Special Court, so far as the bail matter is concerned but nothing else. In addition, there is also no issue betweent the parties that the case diary duly updated would also constitute record for the purpose at the time of hearing of the appeal; however so the case diary would not be summoned in original from the Investigating Agency or through the Agency of the Special Court or the Exclusive Special Court but produced by the Government Advocate/Additional Government Advocate in the same manner as in the case of applications under Section 439 Cr.P.C. heard by this Court.
64. So far as the question as to secondary evidence of records of bail proceedings being summoned as a matter of routine practice in the case of all appeals under Section 14A(2) of the Act, Sri Satish Trivedi, learned amicus curiae has seious and strong objection to any secondary evidence of the record as in his submission record under Section 385(2) of the Code means the original record of the bail application together with all proceedings, affidavits, documents, order of bail included and not any kind of a copy of it, not even a certified copy. In his submission the Indian Evidence Act proceeds on the wisdom of the time tested 'Best Evidence Rule' and Section 64 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) mandates an embodiment of that rule which reads thus:
"64. Proof of documents by primary evidence.--Documents must be proved by primary evidence except in the cases hereinafter mentioned."
65. In the submission of Sri Trivedi it is a dangerous proposition to open up doors for the letting in of secondary evidence as a general rule while the primary evidence is at hand not out of reach of Court, not beyond its process, not destroyed or lost or of a nature as not to be easily movable, in short all things that must be proved in every case individually under Section 65 of the Evidence Act before secondary evidence relating to a document may be given by virtue of Section 65 of the Evidence Act. He further submits that legislative concession under Section 65 of the Evidence Act is limited to the specified contingencies mentioned in the Clauses (a) to (g) of Section 65 of the Evidence Act subject to requirements of each category or clause where secondary evidence is permissible but all secondary evidence is confined to the existence, condition or contents of a document and not to the document in its wholesome tangible existence which would include its due execution and many other things.
66. Sri Vinod Kant, learned Additional Advocate General on the other hand has, in particular, invited the attention of the Court to the provisions of Section 65(e) and (f) of the Evidence Act that are quoted for facility of the reference:
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) ........
(b) ........
(c) ........
(d) ........
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in to be given in evidence; to be given in evidence;
(g) ........"
67. Sri Vinod Kant, learned Additional Advocate General has emphasised that secondary evidence may be given of the existence, condition or contents of a document, particularly, under Section 65(e) of the Evidence Act when the original is a public document within the meaning of Section 74 of the Evidence Act. In his submission the record of any judicial proceedings of any Court of justice is a public document without doubt under Section 74(1)(iii) of the Evidence Act. There is no difficulty about requiring the appellant to file a certified copy of the entire bail papers, the proceedings of the bail application as suggested by him with full particulars, and, recorded in the earlier part of this order. In his submission that would satisfy the requirement of Section 385(2) of the Code.
68. No doubt Section 65(e) makes permissible secondary evidence of the existence, condition or contents of a document to be given in evidence by virtue of Section 65(e) of the Evidence Act when the original is a public document within the meaning of Section 74 of the Evidence Act. It is also not in doubt that judicial record of proceedings of a Court of Justice like the Special Court or the Exclusive Special Court established by statute is a public document within the meaning of Section 74(1)(iii) of the Evidence Act. The mode of proof with reference to Clause (e) of Section 65 of the Evidence Act last mentioned, as indicated in the said Section, is by a certified copy of the document. Thus, a certified copy of the record of the entire bail papers/proceedings of bail disposed of by Special Court or Exclusive Special Court under the Act would be record for the purpose of Section 385(2) of the Code in the opinion of this Court.
69. However, the issue raised by Sri Trivedi is to the effect that the concession under Section 65 of the Evidence Act as to secondary evidence is not about everything of a document but specifically confined to existence, condition or contents. There could be other things also in consequence of which, as a general rule of practice, allowing certified copies of the record to be construed as record for the purpose of Section 385(2) of the Code in all appeals under Section 14(2) of the Act would not be in consonance with the law but fraught with perils of distortion, manipulation and like infirmities that always distinguish the original from a copy. In the opinion of the Court no doubt secondary evidence is not at par with primary evidence but the provision as to secondary evidence of a public document being admissible and approved is in keeping with the larger public interest, a reference to which is to be found in a passage in Ratan Lal's Law Evidence 19th Edition which was quoted with approval by their Lordships of the Madhya Pradesh High Court in the context of the difference between a public document and the public record of a private document in Smt. Rekha Rana & Ors. V. Smt. Ratnashree Jain12 which is extracted in paragraph 9 of the report; the relevant portion reads:
"9. ........... We may also refer to the following passage from Ratanlal's Law of Evidence' (19th Edition page 237):
Public document, (clause (e)) -- This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in Section 74. What Section 74 provides is that public records kept in any state of private documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered document, therefore, does not fall under either Clause (e) or (f). The entry in the register book is a public document, but the original is a private document."
70. Thus, it is the protection of original public records from the various kinds of perils to which the same would be exposed in case of repeated production in evidence that certified copies of public documents properly so called are unhesitatingly made provable by secondary evidence.
71. In the very nature of it the rule under Section 65(e) of the Evidence Act relating to proof of public documents by certified copies is different from other classes of secondary evidence in that that it is designed to be repeatedly employed as a matter of routine and in general course where a public document is involved so as to conserve the original as against other classes of documents which require individual foundation to be laid in a given case before secondary evidence can be let in. In the case at hand the purpose of depending on certified copies may not be a danger to the original of the kind of wearing out of it, destruction or loss but there is a very good purpose found not to insist on the original in the earlier part of this order.
72. Here it must be noticed that concerns of the kind that have been expressed by the learned Additional Advocate General and found by the Court to be eminently well founded have engaged legislative attention in the context of the Prevention of Corruption Act and exercise of revisional jurisdiction by the High Court under Section 397 of the Code to an extent that the legislature has proscribed the powers of the High Court in the matter of hearing a criminal revision under Section 397 of the Code by virtue of Section 22(d) of the Prevention of Corruption Act by restricting the power to summon records in such cases from the Special Court, hedging in that power with the interdict that the Court shall not ordinarily call for record of the proceedings and subjecting the exercise of power to summon records after directing a show cause to the other party.
73. The legislature has also specifically intervened on this issue though in the context of a different statute than the one under reference (Prevention of Corruption Act) by stipulating that records of the Special Court under that Act may not be summoned, if the Court is satisfied that an examination of the record of proceedings may be made from the certified copies. The provisions of Section 19 of the Prevention of Corruption Act including Section 22(d) which are in the nature of legislative interdicts in the exercise of judicial power of the High Court fell for consideration of the Hon'ble Supreme Court in Girish Kumar Suneja V. C.B.I.13 in the background of a much wider context but about the anxiety of the Parliament in enacting Section 19 of the Prevention of Corruption Act and Section 22(d) restricting the power of the High Court to summon records in a case under that Act and further making examination of certified copies of the record an option to be considered before summoning records, held thus:
"68. In enacting Section 19 of the PC Act in the manner which it did, Parliament has made it abundantly clear that it is extremely concerned about ensuring that trials under the PC Act are concluded expeditiously not only in the interest of the accused but also in public interest. This concern of Parliament must be respected.
69. To doubly ensure that there is no ''indirect' stay of proceedings by calling for the records of the Special Judge while dealing with a revision petition filed by an accused person, Section 22 of the PC Act has been enacted with reference to Section 397(1) of the Cr.P.C. By virtue of Section 22(d) of the PC Act, a proviso has been added to Section 397(1) of the Cr.P.C. which makes it clear that the court exercising revision jurisdiction shall not ordinarily call for the record of the proceedings unless certain conditions are fulfilled. The proviso reads as follows:
"Provided that where the powers under this section are exercised by a court on an application made by a party to such proceedings, the court shall not ordinarily call for the record of the proceedings, ˗˗
(a) without giving the other party an opportunity of showing cause why the record should not be called for; or
(b) If it is satisfied that an examination of the record of the proceedings may be made from the certified copies."
70. By adding the proviso to Section 397(1) of the Cr.P.C. Parliament has made it clear that it would be appropriate not to call for the records of the case before the Special Judge even when the High Court exercises its revision jurisdiction. The reason for this quite clearly is that once the records are called for, the Special Judge cannot proceed with the trial. With a view to ensure that the accused who has invoked the revision jurisdiction of the High Court is not prejudiced and at the same time the trial is not indirectly stayed or otherwise impeded, Parliament has made it clear that the examination of the record of the Special Judge may also be made on the basis of certified copies of the record. Quite clearly, the intention of Parliament is that there should not be any impediment in the trial of a case under the PC Act."
74. As such, it is held that for good and valid reasons, there can be no exception to certified copies of the record as a matter of general routine and rule being utilised for the purpose of hearing appeals under Section 14A(2) of the Act consistent with the requirements of Section 385(2) of the Code. Of course, this view does not preclude the Court about which there cannot be an embargo even imagined much less inferred from exercising powers in a given case of an appeal under Section 14A(2) of the Act to summon the original record if considered necessary for any reason in the discretion of the Court.
75. This still leaves unanswered some lingering anxiety of Sri Satish Trivedi, learned Senior Advocate about the legality of requiring parties to file certified copies of the entire proceedings of a bail application disposed of by a Special Court or Exclusive Special Court so that it may satisfy the mandate of Section 385(2) of the Code which requires, to use the words of the statute, "the Appellate Court shall then send for the record of the case, .....". In the submission of Sri Trivedi sending for the record from a court below is a particularly stipulated course of action which is a process of Court where the Appellate Court is required through its process to send for or summon the records from the Court of first Instance. This requirement cannot be modified nothwithstanding the permissibility of secondary evidence of the record to be admissible by permitting parties to file the same.
76. It appears from a reading of the text and the context of Sections 382 to 386 of the Code that deal with one part of the procedure relating to contents of the appeal, its presentation, summary determination, regular hearing, powers of the Appellate Court that the submission is not without force. The statute that is to say Section 385(2) of the Code contextually read obliges the Appellate Court after issue of notice to parties in the case of an appeal not summarily dismissed under Section 384(2) of the Code to send for the record of the case from the Court of first instance. Sending for somethin or summoning is a distinctive process of Court very defferent from what the law contemplates by filing of a document by a party. The process of sending for the record by the Appellate Court from the Court of first instance cannot be stretched, in the opinion of the Court, to be read as permitting a party to file the record, even secondary evidence of it, which has been held otherwise permissible for the purpose of appeals under Section 14A(2) of the Act. The golden rule of construction while interpreting a statutory provision is to read the same on its plain terms, of course in the context of other provisions and the object of the Act. The Court cannot add, substract, modify or mutilate the requirements of the statute to make it into something different from what the legislature has designed it to be. The above proposition is too well settled to be doubted but in the context the law laid down in Raghunath Rai Bareja & Anr. V. Punjab National Bank & Ors.14 may be quoted with profit:
"41. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the grab of interpretation.
49. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed:
"The Court cannot legislate under the grab of interpretation".
Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron."
75. Here, it is of cardinal importance to notice that in Girish Kumar Suneja (supra) their Lordships unhesitatingly endorsed examination of the record of proceedings subject to satisfaction of the Court to be made from certified copies in view of the provisions of the Prevention of Corruption Act making allowance for that course of action which is not the case here the provisions of Sections 19 & 22(d) of the Prevention of Corruption Act which is a special Act clearly excludes the requirement of sending for the record otherwise envisaged under Section 397(1) of the Code. There is no provision of that kind doing away with the provisions of Section 385(2) of the Code in the Act in so far as the requirement of the record (which may include a certified copy of it) being sent for is concerned.
76. This Court is of opinion that the Court while hearing an appeal under Section 14A(2) of the Act would be obliged to secure by summoning before proceeding with the hearing of an appeal certified/authenticated copies of the entire record of the proceedings of the bail application where bail has been granted or rejected by requiring the Special Court or the Exclusive Special Court to send a duly certified and authenticated copy of the entire proceedings certified by the Presiding Officer of Special Court or the Exclusive Special Court from whose order the appeal has been filed under Section 14A(2) of the Act in the manner prescribed by Section 76 of the Evidence Act. The contents of the record would include all documents and proceedings from the presentation of the bail application to the conclusion, copy of the order impugned, copy of the bail application alongwith its annexures, if any, filed as enumerated:
(i) a certified copy of the order of the Special Court granting or refusing bail;
(ii) a certified copy of the bail application alongwith its annexures, if any, filed by the accused before the Special Court or the exclusive Special Court as the case may be;
(iii) a certified copy of any affidavit or any document which has been relied by the accused in support of his bail application before the Special Court or the Exclusive Special Court, as the case may be;
(iv) a certified copy of the comments (parawise reply to the bail application) filed by the State/prosecution before the Special Court/Exclusive Special Court in response to the bail application brought by the accused;
(v) a certified copy of the order sheet of the Special Court/Exclusive Special Court relating to the bail application alone from the date of its institution to the date of its disposal alongwith a certified copy of the remand file as also the index for the bail application/proceedings drawn up by the office, if any.
77. The Presiding Officer would also forward alongwith the certified copy of the record a certificate that the same contains the entire record and proceedings on the basis of which the impugned order has been passed and nothing has been left out. No other part of the record of the case, relating to the trial or any other proceedings would be forwarded as a certified copy or in another manner for the purpose of hearing of an appeal under Section 14A(2) of the Act.
78. The authenticated/certified copy of the record received for all purposes would be dealt with as record of the case sent for in a criminal appeal in accordance with the rules of Court for the time being in force.
79. Also, it is provided that the case diary duly updated would also constitute record for the purpose at the time of hearing of the appeal; however so the case diary would not be summoned in original from the Investigating Agency or through the Agency of the Special Court or the Exclusive Special Court but produced by the Government Advocate/Additional Government Advocate in the same manner as in the case of applications under Section 439 Cr.P.C. heard by this Court.
80. Question No.1 formulated vide order dated 10.01.2018 is answered in the negative in the terms set forth hereinbefore and likewise question no.2 is answered in the affirmative, also in terms set forth hereinbefore.
81. This Court places on record both gratitude and appreciation to the very kind and able assistance extended by Sri Satish Trivedi, learned Senior Advocate, amicus curiae in the matter, and, Sri Vinod Kant, learned Additional Advocate General. The Court also places on record its appreciation for the effort and enterprise of Sri Arvind Kumar Singh, learned counsel for the applicant in this appeal who stood his ground to persuade the Court that the issue involved required an answer before hearing an appeal of this kind.
82. Let a copy of this order be forwarded by the Registrar General to all the District Judges and the Presiding Officers of all Special Courts or Exclusive Special Courts in the State notified or established under Section 14 of the Act for due information and compliance likewise.
83. Let a copy of this order be forwarded by the Registrar General to the concerned Sections of the Criminal Department dealing with this category of appeals for compliance.
Order Date :- 21.2.2018 Shahroz