Uttam Jaiswal vs State Of U.P.
2017 Latest Caselaw 6438 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 53
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41764 of 2017
 

 
Applicant :- Uttam Jaiswal
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Ajeet Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Harsh Kumar,J.

Supplementary affidavit filed by learned counsel for the applicant is taken on record.

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

At the very outset preliminary point of maintainability of bail application was raised by learned A.G.A. in view of amended provisions of S.C./S.T. Act, whereby provisions of Section 14A, 15A etc. were inserted making the order allowing or rejecting bail application, appellable.

The learned counsel for the applicant submits that the F.I.R. of the case was lodged on 13.4.2015 and upon investigation and submission of charge-sheet, cognizance was taken on 15.7.2015; that since the incident did take place and cognizance was taken much before the enforcement of amended provisions of Section 14-A of the S.C./S.T. Act, which came into force w.e.f. 26.1.2016, the impugned order of rejection of bail dated 28.9.2017 is not appellable under the amended provisions of Section 14-A of S.C./S.T. Act and the bail application under Section 439 Cr.P.C. is competent in the matter relating to offences which have taken place prior to 26.01.2016; that the newly added provisions of Section 14A, 15A etc. of S.C./S.T. Act inserted through Amendment Act No.1 of 2016 w.e.f. 26.1.2016, have not been made retrospective; that it is settled principle of law that substantive rights of parties remain intact as on the date of initiation of legal proceedings, unless by subsequent legislation they have been altered retrospectively; that since the provisions of Section 14-A S.C./S.T. Act brought through amending Act No.1 of 2016, have not been given retrospective effect, the order of rejection of bail in a case relating to incident which did take place prior to enforcement of such amendment, shall not be appellable and the remedy of moving bail application before this Court under provisions of Section 439 Cr.P.C., is available to the accused.

Learned counsel for the applicant further submitted that in view of law laid down by Hon'ble the Apex Court in the case of Garikapati Veeraya Vs. N. Subbiah Choudhry and others, AIR 1957 S.C. 540, a co-ordinate Bench of this Court vide order dated 25.8.2017 passed in Criminal Appeal No.2943 of 2017 held that since Act No.1 of 2016 has not been given retrospective effect so in the matter of incident dated 24.11.2000 the remedy of accused was to move an application under Section 439 Cr.P.C. because the amended Act No.1 of 2016 has been enforced w.e.f. 26.1.2016 and in exercise of powers under Section 482 Cr.P.C. converted the appeal into application for bail and treating it a bail application rejected it on merits.

Per contra, learned A.G.A. submitted that it is settled principle of law that amendment in legislation in respect of substantive law is applicable from the date of enforcement and will not be retrospective unless provided, while in the matters of procedural law it is enforceable from the date on which it is made enforceable and in absence of any specific classification, there can be no classification that the matters in which cognizance was taken prior to the enforcement of the Act will be governed by the general provisions of Section 439 of Cr.P.C. as per old procedure and only the matters in which cognizance has been taken subsequent to the enforcement of the newly inserted provisions, will be governed by the amended procedure.

Learned A.G.A. submitted that the case of Garikapati Veeraya (supra) is based on different facts relating to substantive and vested rights of the party and may not be applicable in the matters relating to amendment in respect with the procedural law.

Upon hearing learned counsel for the parties and perusal of record as well as the judgment in the case of Garikapati Veeraya (supra), I find that in the case of Garikapati Veeraya (supra) the question of procedural law was not at all involved rather it was a case of vested substantive right of the appellant therein. In above case an application for special leave to appeal from the judgment passed on 10.2.1955 by the Andhra Pradesh High Court was moved, relating to the suit instituted on 22.4.1949 and dismissed by trial court on 14.11.1950 and the contention of petitioner that since from the date of institution of suit, he had acquired a vested right of appeal to the Federal Court which has since been replaced by the Supreme Court, was accepted and considering that he may not be deprived of his vested right of appeal, the appeal before Supreme Court was held maintainable.

The controversy raised with regard to provisions of Section 14A/15A etc. of S.C./S.T. Act inserted by way of Amendment Act 1 of 2016 w.e.f. 26.1.2016 being not retrospective has been totally misunderstood by the applicant. The only effect of above provisions having not been made retrospective will be that, upon an order on bail application passed by the Special Judge under S.C./S.T. Act rejecting or allowing the same, the aggrieved person if has moved application for bail or for cancellation of bail before this Court prior to 26.1.2016, despite the fact of its being listed for disposal after 26.01.2016 the same shall be competent and may not be rejected in view of above provisions after enforcement of the newly inserted provisions w.e.f. 26.01.2016 against any order passed before or after 25.01.2016 only appeal shall lie as per provisions of Section 14-A of S.C./S.T. Act and no application under Section 439 Cr.P.C. for bail or for cancellation of bail shall be maintainable or entertainable. In other words since 26.1.2016 and onwards upon passing of any order of allowing or rejecting the bail application by a special Judge under S.C./S.T. Act, including orders passed on or before 26.1.2016, if no application for bail or cancellation of bail has been moved before this Court prior to 26.01.2016, the only available remedy for seeking bail or seeking cancellation of bail, will be by filing appeal within 90 days from the date of order and within a maximum period of 180 days from the order, after which period no appeal can be entertained. Even after expiry of 180 days from the date of order passed by Special Judge, S.C./S.T. Act, no application under Section 439 Cr.P.C. may be maintainable before this Court. It will not be unnecessary to mention that since principle of res-judicata is not applicable to criminal matters (as in civil cases) so upon rejection of bail application the aggrieved person will be at liberty to move another application, on rejection of which he will be having fresh cause of action of filing appeal as prescribed under Section 14A of S.C./S.T. Act.

In view of discussions made above, I am of the considered view that in a case registered on lodging of F.I.R. dated 13.4.2015 in which cognizance was taken by Court on 15.7.2015 and the bail application of applicant was rejected vide order dated 28.9.2017, (undisputedly after enfrocement of provisions of Sections 14-A, 15-A etc. of S.C./S.T. Act inserted by amending Act No.1 of 2016 w.e.f. 26.01.2016), for seeking bail from this Court the only remedy available to the applicant is by filing appeal under Section 14A of S.C./S.T. Act. The argument advanced on behalf of the applicant that against order rejecting bail, appeal shall not be competent under Section 14-A of S.C./S.T. Act on the ground that cognizance in the case was taken prior to enforcement of the amended provisions of Section 14-A of S.C./S.T. Act, has no force or substance and may not be accepted. There can be no controversy in this regard that from 26.1.2016 and onwards when the provisions brought through this amendment have been enforced, against every order allowing or rejecting any bail application by Special Judge under S.C./S.T. Act, even before or after enforcement of such provision only appeal lies as provided, with a view to make effective justice in the matters relating to the offences against the persons of Schedule Castes and Schedule Tribes so as to give them an opportunity of hearing after service of notice on them before the High Court. It will not be correct to say that if in a matter cognizance has been taken on or before 25.1.2016 then no appeal shall lie and the provisions of appeal U/s 14A of S.C./S.T. Act will apply only if the cognizance has been taken on 26.1.2016 or onwards. To make it more clear if in a matter the bail application was rejected and the aggrieved person/accused approaches this Court through an application for bail or for cancellation of bail before the High Court on or before 25.1.2016 and it comes for hearing after 26.1.2016 it may not be rejected as not maintainable in view of the newly inserted provisions of Section 14-A of S.C./S.T. Act which have been enforced on 26.1.2016. In such matters the applications filed before 26.1.2016 will remain maintainable and will not be governed by subsequently amended provisions.

In view of the discussions made above, the present application is not maintainable and is rejected accordingly without expressing any opinion on merits.

Let the certified copy of the impugned order be returned to learned counsel for the applicant, as per Rules of the Court.

Order Date :- 7.11.2017

Kpy