Rohit vs State Of U.P. & Another
2017 Latest Caselaw 3756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 51
 

 
Case :- CRIMINAL APPEAL DEFECTIVE No. - 523 of 2017
 

 
Appellant :- Rohit
 
Respondent :- State Of U.P. & Another
 
Counsel for Appellant :- Ajay Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pratyush Kumar,J.

The instant appeal has been filed by the accused-appellant challenging the correctness of bail rejection order dated 25.06.2016 passed by Sri D.K. Tiwari, Additional Sessions Judge/Fast Tract Court No.2, Bulandshahr in case crime no.564 of 2016 (State Vs. Rohit) under sections 363, 366, 376 IPC, section 4 POCSO Act and section 3(2)5 of Scheduled Castes & Scheduled Tribes Act, 1989.

The memo of appeal has been presented in the office of the Court on 16.08.2017. The office of the Stamp Reporter has reported the filing of appeal beyond 357 days from its prescribed limitation. Along with the memo of appeal delay condonation application purported to be filed under section 5 of the Limitation Act has been moved, when it was inquired by the Court how the memo of appeal can be entertained after expiry of 180 days as per provisions contained in section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, newly inserted by Amending Act No.1 of 2016 which came into force with effect from 26.01.2016 vide S.O. 152(E) dated 18.01.2016. On this learned counsel for the appellant Sri Ajay Kumar, Advocate, has drawn attention of the Court to an order passed by a Coordinate Bench of this Court on 03.08.2017. For ready reference the order dated 3.8.2017 is quoted herein below:

"Counter affidavit on behalf of the complainant, filed today, is taken on record.

Learned A.G.A. for the State of U.P. raised a preliminary objection regarding maintainability of this bail application on the ground of availability of alternate remedy of filing appeal under the amended provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

In view of the above, this application is rejected as not maintainable with liberty to the applicant to file appeal, as provided under the amended provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

Certified copy of bail rejection order be returned to the learned counsel for the applicant after keeping a photocopy of the same on record."

On the basis of this order submission of Sri Ajai Kumar, Advocate, is that only remedy of filing appeal is available to the appellant and he can no more file an application for bail under section 439 of the Code of Criminal Procedure.

The law is settled that the substantive rights of the parties would not be affected, during pendency of the litigation by an Act unless it had been given retrospective effect, expressly or by necessary implication. The Constitutional Bench of Hon'ble Apex Court in the celebrated case Garikapati Veeraya Vs. N. Subbiah Choudhry and others, AIR, 1957 SC 540 has also opined that relevant date for ascertaining substantive rights of the parties is the date of the commencement of the proceedings.

After recalling the legal position it would be gainful to have the factual matrix on the record.

On 2.5.2016 at 10.40 AM a check FIR was scribed at police station Kotwali Sahar, District Bulandshahr, registered as aforesaid case crime number, by private respondent, on that date informing the police of police station concerned that his grand-daughter aged 16 years was subjected to sexual exploitation by the accused-appellant on the strength of compromise to marry. On 23.3.2016 accused appellant took his grand daughter from the house, subjected her to rape and refused to marry her on the pretext of difference of caste.

It is clear that in the present matter proceedings commenced on 2.5.2016 when the private respondent informed the concerned police about the commission of the crime and check FIR was scribed, there is no dispute that on or after 26.01.2016 in such matters courts have to follow the procedure prescribed in the Code of Criminal Procedure and wherever the Special Act contains provisions inconsistent with the Code of Criminal Procedure then by virtue of section 5 of the Code of Criminal Procedure, procedure prescribed in the special law has to be followed.

The complicity of legal questions involved in the present matter led the Court to request Sri V.P. Srivastava, Senior Advocate, to address the Court on the legal questions involved in the present matter.

Sri Srivastava has very ably and willingly assisted the Court. His argument is that introduction of section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 without repealing expressly or by necessary implication remedy under section 439 of the Code of Criminal Procedure is conspicuous in its intent. While elaborating this argument he submits that introduction of section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a legislative device to bypass the remedy of moving bail application under section 439 of the Code of Criminal Procedure before this Court. According to him, section 439 of the Code of Criminal Procedure remains intact for all practical purpose except the situation as envisaged in section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, according to him remedy provided by section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, shall remain available to the applicant only for 180 days, thus, he submits that as per section 5 of the Code of Criminal Procedure after expiry of 180 days section 14-A of the Act shall remain no longer 'law for the time being in force' and as soon as bar created by section 5 of the Code of Criminal Procedure goes, the accused-appellant will be entitled to invoke section 439 of the Code of Criminal Procedure as for him this legal remedy revives as soon as his right to file appeal stands extinguished by limitation.

On behalf of the State it has been submitted that after amendment the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has become a complete Code in itself, therefore, rights of the parties shall be regulated by the Special Act alone and there is no question that after expiry of 180 days remedy available under section 439 of the Code of Criminal Procedure would become available to an accused of an offence committed on or after 26.01.2016.

The learned Additional Government Advocate further brought attention of the Court to the case of State of Gujrat Vs. Salimbhai Abdulgaffar Shaikh (2003) 8 SCC 50. In reference to provisions contained in section 34 of the Prevention of Terrorism Act (POTA) the Hon'ble Apex Court in this case has held that in cases falling under POTA application under section 439 of the Code of Criminal Procedure would not be available.

In the last the learned Additional Government Advocate submits that in view of provisions contained in section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act after expiry of 180 days neither an accused can file memo of appeal nor he can move an application under section 439 of the Code of Criminal Procedure. On the strength of the aforementioned judgment of the Apex Court the learned Additional Government Advocate further submits that in such case remedy under section 482 of the Code of Criminal Procedure would also stand excluded.

Before considering the merits of the respective arguments it would be gainful to reproduce here section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, section 34 of the Prevention of Terrorism Act and section 439 of the Code of Criminal Procedure.

14-A of the SC/ST Act reads as below:

"14A. (1)Notwithstanding anything contained in the Code of Criminal Procedure,1973, an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2)Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:

Provided further that no appeal shall be entertained after the expiry of the period

of one hundred and eighty days.

(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal."

Section 34 of the Prevention of Terrorism Act, 2002 reads as below:

34-Appeal.

(1)Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

Explanation.--For the purposes of this section, "High Court" means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated.

(2)Every appeal under sub-section (1) shall be heard by a bench of two judges of the High Court.

(3)Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.

(4)Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

(5)Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.

Section 439 of the Code of Criminal Procedure reads as below:

439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

Now I take up the first argument whether on expiry of 180 days an accused under the Special Act can move an application for bail under section 439 of the Code of Criminal Procedure or his remedy for restoration of individual liberty stands barred by the Special Act.

As quoted herein above section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act regulates right of an accused to be set at liberty for 180 days after his bail application has been rejected by the Special Judge. In the case of Mardia Chemicals Ltd. Vs. Union of India and others [(2004) 136 Taxman 360] the Hon'ble Apex Court was seized about the right of an appeal under the Securitization & Reconstruction of Financial Assets and Enforcement of the Security Interest Act, 2002. In that case condition of pre-deposit of the amount alleged to be due to the debtor before filing of appeal was held by the Hon'ble Apex Court to be unconstitutional in paras 64 and 80(4) of the report. For ready reference paras-64 and 80(4) of the report are reproduced as under:

"64.The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii)there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.

80(4).In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down."

Though this authority is in reference to factual matrix not identical with the present matter but it reflects the fundamental principle enshrined in our constitution that a person can be deprived of his life and liberty only by procedure established by law and in the leading case of Maneta Gandhi Vs. Union of India, AIR 1978 SC 597 such procedure should be reasonable.

Remembering the mandate of our forefathers, it is for me to interpret what remedy the law provides to an accused under Special Act after expiry of 180 days from the date his bail was rejected by the Special Judge. Sri V.P. Srivastava, Senior Advocate, in this reference has pointed out that under POTA in section 34 there was no prohibitory clause terminating the right to file an appeal after expiry of permissible time for filing appeal. According to him, absence of this provision goes to distinguish the case wherein the Hon'ble Apex Court by virtue of section 49 of the POTA has held that an accused under that Act would not be entitled to move bail application under section 439 of the Code of Criminal Procedure before this Court.

Before proceeding further I would like to reproduce the observation of the Apex Court contained in para-10, 12 and 13 of the report.

"10.Shri Amarendera Sharan, learned senior counsel for the respondents has submitted that the power of the High Court to grant bail under Section 439 Cr.P.C. has not been taken away by POTA and consequently the learned Single Judge had the jurisdiction to grant bail to the respondents in exercise of the power conferred by the aforesaid provision. Learned counsel has laid great emphasis upon Section 49 of POTA, especially Sub-section (5) thereof and has submitted that in view of the language used in this section, the power conferred upon the Court of Sessions and the High Court under Section 439 will remain intact. It has been urged that if the intention of the legislature was to make the provisions of Section 439 of the Code inapplicable in relation to offences under POTA, it would have made a provision similar to Sub-section (5) of Section 49 which expressly excludes the applicability of Section 438 Cr.P.C. We are unable to accept the contention raised by the learned counsel for the respondents. It is well settled principle that the intention of the legislature must be found by reading the Statute as a whole. Every clause of Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of Statute and give full meaning to the same. The different provisions in the Statute should not be interpreted in abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express. Section 49 cannot be read in isolation, but must be read keeping in mind the scope of Section 34 whereunder an accused can obtain bail from the High Court by preferring an appeal against the order of the Special Court refusing bail. In view of this specific provision, it will not be proper to interpret Section 49 in the manner suggested by learned counsel for the respondents. In A.R. Antulay v. Ramdas Srinivas Nayak & Anr. 1984 (2) SCC 500, the scope of special Act making provision for creation of a Special Court for dealing with offences thereunder and the application of Code of Criminal Procedure in such circumstances has been considered and it has been held that the procedure in Cr.P.C. gets modified by reason of a special provision in a special enactment.

12.That apart if the argument of learned counsel for the respondents is accepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 Cr.P.C. in the original or concurrent jurisdiction which may be heard by a Single Judge or may prefer an appeal under Sub-section (4) of Section 34 of POTA which would be heard by a bench of two judges. To interpret a statutory provision in such a manner that a Court can exercise both appellate and original jurisdiction in respect of the same matter will lead to an incongruous situation. The contention is therefore fallacious.

14. The High Court has also invoked powers under Section 482 Cr.P.C. while granting bail to the respondents. Section 482 Cr.P.C. saves the inherent power of the High Court. The High Court possesses the inherent powers to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. The power has to be exercised to prevent abuse of the process of the Court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. (See Madhu Limaye v. State of Maharashtra AIR 1978 SC 47). There being a specific provision for grant of bail, the High Court clearly erred in taking recourse to Section 482 Cr.P.C. while enlarging the respondents on bail."

The distinguishing feature pointed out by Sri V.P. Srivastava, also makes the observation in para 14 of the report in reference to applicability of section 482 of the Code of Criminal Procedure is distinguishable herein.

It is fundamental principle of the interpretation of the statute that where two provisions are in conflict, both have to be interpreted in a manner making them meaningful, commonly known harmonious interpretation of the statute. Now, I proceed with in the present case, general remedy available to all the accused of criminal offences lies in moving bail application under section 439 of the Code of Criminal Procedure even before this Court. This general remedy was substituted by the amending Act No. 1 of 2016 providing an accused under the Special Act to file appeal against the bail rejection order but this right can be availed only to the extent permitted by the said section. Now the question is after expiry of 180 days whether an accused under the Special Act would be denuded of his right to approach this Court under general law i.e. section 439 of the Code of Criminal Procedure.

The answer to this question is not far to seek section 14-A of amending Act No. 1 of 2016 does not expressly or by necessary implication repeal provision contained in section 439 of the Code of Criminal Procedure, simply it provides a special remedy to an accused and the complainant/victim under the Special Act, it is the wisdom of the legislature to provide special remedy for a certain limited period or during the pendency of the proceedings. Till the special remedy remains available to the accused or the other parts, he would have no right to seek his remedy under the general law but as soon as special remedy ceases to exist for him, he can avail ordinary remedy provided by general law. My view gets fortified from the observation made by Hon'ble Apex Court in the celebrated case of Harishanker Bagla vs. State of M.P. [AIR 1954 SC 465]. For kind convenience para-12 of the report is reads as under:

"12.The last contention of Mr. Umrigar that section 6 having been declared invalid, section 3.....................................

In our opinion the construction placed on section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of section 6 certainly is not to repeal any one of those laws or abrogate then;. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) (I) [1951) S.C.R, 747.

Act, 1946, or the orders made thereunder. In other words, the orders made under section 3 would be operative in regard to the, essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions."

Here I would also like to refer the observation of the Hon'ble Apex Court made in the case of Tansukh Rai Vs. Nilratan Prasad [AIR 1966 SC 1780]. The relevant para-11 of the report reads as under:

"11.The provisions of Bihar s. 64A and Central s. 64A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is made to the State Government by a person aggrieved by such an order of the Regional Transport Authority which be not appeal,able under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar s. 64A."

In view of above, I find myself unable to agree with the arguments advanced by the learned Additional Government Advocate. In my opinion, special remedy of filing appeal under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act does not abrogate or extinguish the right to move bail application under section 439 of the Code of Criminal Procedure before this Court, this normal remedy to an accused under the Special Act would remain in suspension during the time special remedy provided by section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be availed by such an accused but after expiry of this limited period, he would be entitled like other accused to seek his bail under section 439 of the Code of Criminal Procedure.

After ascertaining the correct legal position matter in hand have been subjected to scrutiny. First bail application of the appellant has been rejected vide Court's order dated 03.08.2017 on the ground of availability of alternative remedy. Bail rejection order dated 25.06.2016 is beyond 357 days, the period prescribed for filing of an appeal under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In view of second proviso to section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the memo of appeal can not be entertained. Legislative mandate is in prohibitory form it cannot be ignored. Therefore, in my opinion, memo of appeal presented pursuant to the order dated 03.08.2017 is not maintainable. It has been ascertained earlier that after expiry of 180 days from the date of filing of the appeal appellant is entitled to move bail application before this Court and having due regard to the Court's order dated 03.08.2017 and in exercise of inherent powers of the Court conferred under section 482 of the Code of Criminal Procedure to secure the ends of justice, I hereby permit the learned counsel for the appellant to convert his memo of appeal into bail application.

Let necessary incorporation be made in the memo of appeal. After corrections are carried out office is directed to allot regular bail application number to the corrected memo of appeal and put up the bail application as fresh before appropriate Court on 12.09.2017.

The Court is very thankful to Sri V.P. Srivastava, Senior Advocate, of this Court, who has spent his valuable time in assisting the Court on the above subject properly.

[Pratyush Kumar,J]

Order Date :- 29.8.2017

Prajapati