Sunil @ Shivkumar vs State Of U.P. And Another
2023 Latest Caselaw 26932 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:190342
 
Court No. - 64
 

 
Case :- CRIMINAL APPEAL No. - 7584 of 2023
 

 
Appellant :- Sunil @ Shivkumar
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ishwar Chandra Tyagi,Anmol Kumar Dubey
 
Counsel for Respondent :- G.A.,Kamlesh Kumar
 

 
Hon'ble Siddharth,J. 

Heard learned counsel for the appellant; Shri Kamlesh Kumar,learned counsel for the opposite party no.2 learned AGA for opposite party no.1 and perused the material placed on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 27.6.2023, whereby the Additional District & Sessions Judge/Special Judge, SC/ST Act, Amroha/J.P. Nagar has rejected the bail application of the appellant moved by him in Case Crime No. 208 of 2022, under Section 302 IPC and Section 3(2) (V) SC/ST Act, Police Station Adampur, District Amroha/J.P. Nagar.

This is the second criminal appeal of the appellant. The first criminal appeal of the appellant was rejected by this court vide order dated 12.5.2023 directing the trial court to conclude the trial against the appellant within one year.

After rejection of the first criminal appeal of the appellant he approached the court below again and his bail application has again been rejected by the court below vide second bail rejection order dated 27.6.2023. Hence he is before this court again.

This court vide judgement in Criminal Appeal No. 9226 of 2022, Raghvendra Vs. State of U.P. and another, has held that since impugned order in the subsequent criminal appeal gets replaced after fresh rejection order is passed on subsequent bail application of appellant, hence second criminal appeal cannot be treated as tied up or part heard to the earlier Bench which rejected the earlier Criminal Appeal of the accused-appellant as follows:- .

7. After hearing the rival contentions, this Court finds that before proceeding further, it is required to be decided whether once an appeal under Section 14-A (2) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been dismissed by one Bench of this Court, then after rejection of second bail application by the court below, the Criminal Appeal preferred again before this Court, but against a different rejection order, would be heard by the same Bench which dismissed the earlier appeal and is sitting in different jurisdiction or shall be heard by the Bench which is currently having jurisdiction to hear the same. The relevant provisions necessary for deciding this controversy are Section 14-A(2), SC/ST Act and Chapter V, Rule, 13 of Rules of Court which are quoted herein below;-

14A. Appeals. (2) Notwithstanding anything contained in sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973 (2 of 1974) an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting refusing bail.

13. Subsequent application on the same subject to be heard by the same Bench:- No application to the same effect or with the same object as a previous application upon which a Bench has passed any order other than an order of reference to another Judge or Judges, shall, except by way of appeal,ordinarily be heard by any other Bench.

8. A perusal of the Section 14A (2) of SC/ST Act shows that an appeal lies to this Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail to an accused.

9. It is clear that every grant or refusal of bail by the Special Court can be subjected to separate appeal before this Court. Like second bail application under Section 438/439 Cr.P.C., second appeal is not provided in the SC/ST Act. Anticipatory Bail Application under Section 438 Cr.P.C., and Bail Application under Section 439 Cr.P.C., can be filed before this Court directly without any approach to the court below. It can also be filed after rejection of the bail application of an accused by the court/courts below. The applications under Sections 438/439 Cr.P.C., are not filed against the findings recorded by the court/courts below rejecting the bail application of an accused. The merits of the order passed by the court/courts below are not required to be seen and the findings recorded therein are not required to be referred or set aside by the High Court before granting anticipatory bail/bail to an accused by exercising powers under Sections 438/439 Cr.P.C.

10. Compared to the above provisions of anticipatory bail/bail under Cr.P.C., Section 14-A (2) of SC/ST Act, clearly provides that an appeal shall lie to the High Court against an order of Special Court or the Exclusive Special Court granting or refusing bail.

11. The section does not contemplates that a second criminal appeal will lie to the High Court against the same rejection order of the Special Court, if the High Court earlier dismissed the appeal preferred against the order of rejection passed by the court below. Rightly so, because an order once affirmed or set aside in appeal by the High Court cannot be revisited by means of another Criminal Appeal subsequently filed therefore, every time an accused approaches the court below for grant of bail unsuccessfully, he has to prefer a fresh criminal appeal against the order passed therein before this Court.

12. A perusal of Chapter V, Rule 13 of the High Court Rules shows that it provides that subsequent application on the same subject will be heard by the same Bench. It provides that no application to the same effect or with the same object, as previous application upon which a Bench has passed any order other than order of reference to any Judge or Judges, shall, except by way of appeal, ordinarily be heard by any other Bench.

13. A perusal of Chapter V, Rule 13 of the High Court Rules, clearly shows that it provides for a subsequent application to be heard by the same Bench regarding the same subject or with the same object as the previous application. However, it exempts an order of reference to another Judge or Judges and order by way of appeal.

14. It is true that the Courts have held that an application also includes an appeal. For the purpose of deciding the present controversy, the difference between application and appeal are required to be considered. As considered hereinabove, Chapter V, Rule 13 of the Rules of Court distinguishes an application from an appeal. The reason is that the appeal under Section 14-A(2) of SC/ST is not the same as application filed before the High Court after refusal/grant bail by the court below under Section 438/439 Cr.P.C. An appeal affirming or setting aside the judgement of the court below attaches finality to the proceedings so far as the order of the court below is concerned. However, application for grant of relief after exercise of discretion of this Court after once refusing or granting bail to an accused is maintainable subsequently, irrespective of the order of the court below. Anticipatory bail application/bail application filed after rejection or grant of bail by court below are not directed against any order of the court below, but are filed praying for grant/cancellation of bail on the ground that the court below has not properly appreciated the case of an accused and the discretion of the High Court is therefore, required to be exercised.

15. The Special Court under the SC/ST Act undoubtedly exercises the same powers of bail and are governed by the same principles of grant/refusal of bail, but in appeal before this court, the considerations do not remain the same as the considerations in anticipatory bail application/bail applications under Sections 438/439 Cr.P.C. The powers and jurisdiction of appellate court are different than the powers of this Court while entertaining an application. In appeal, this court is required to consider whether the Special Court has erred in granting denying relief to the appellant on the basis of the order under challenge. This court is required to see whether the order of the court below can be sustained and its findings are in accordance with the legal and factual issues involved in the consideration of bail application of the accused by the Special Court or not. The Apex Court in the case of Shakar Kerba Jadhav and others Vs State of Maharashtra 1969 (2) SCC 793 has held that a court of appeal is a "court of error" and its normal function is to correct the order of court below in appeal. Its jurisdiction should be coextensive with that of the trial court. Therefore, this Court while hearing the appeal under Section 14-A(2) of SC/ST Act, considers the errors committed by the Special Court and grants/denies relief after such consideration. It exercises co-extensive powers with the trial court. Regarding consideration of applications under Sections 438/439 Cr.P.C., this Court never corrects the error committed by the court below in granting/denying relief to the applicant nor its exercises any co-extensive power with that of the trial court on the Sessions Court. Therefore, the effect and the object of application under Section 438/439 Cr.P.C., are different from that of an Appeal under Section 14-A(2) of SC/ST Act.

16. The Blacks Law Dictionary, VIIIth Edition, South Asian Edition defines appeal " to seek review from a lower court decision" by High Court.

17. It is abundantly clear that the object and subject of application under Section 438/439 Cr.P.C., is different from the object and subject of appeal under Section 14-A (2) of SC/ST, Act. Therefore, it is hereby held that the criminal appeal preferred before this Court under Section 14A-(2) of SC/ST Act after rejection of subsequent bail application by the Special Court can be heard by the Bench having jurisdiction to hear such appeal and it is not required to be placed before the earlier Bench which rejected the earlier appeal which was preferred against different order of rejection/grant of bail by the Special Court.

Despite the aforesaid judgement of this court, the coordinate Bench of this court relying upon the judgment of Apex Court in the judgement in Criminal Appeal No. 1503 of 2023, Pradhani Jani Vs. State of Odisha dated 15th May, 2023, which directed that bail applications arising out of same crime number filed by different accused be heard by the same Bench, has directed the matter to be placed before this court.Thereafter matter was placed before the Hon'ble The Chief Justice, who has nominated this matter to this Bench.

This court is bound by its judgement in the case of Raghvendra(supra) and subsequent judgement of the Apex Court, Pradhani Jain (Supra) does not applies to criminal appeal.However since this case has been nominated to this Bench, it is being heard.

Learned counsel for the appellant submits that before the trial court six prosecution witnesses have been examined.P.W.4,5 and 6 have been turned hostile. P.W.1,2 and 3 have also not made any allegation against the appellant. It is a case of circumstantial evidence.There is no eyewitness of the incident.The appellant is in jail since28.9.2022 and has no criminal history. In case, the appellant is released on bail, he will not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the opposite party no.2 have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submitted that the allegations involved are very serious in nature. But they could not point out any material to the contrary. They have further submitted that in case the appellant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 27.06.2023 is, hereby, set aside.

Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail.

Let appellant, Sunil @ Shivkumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The appellant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The criminal appeal is allowed.

Order Date :- 4.10.2023

Atul kr. sri.