Mukul Goyal S/O Arvind Goyal vs The State Of Maharashtra And Ors
2022 Latest Caselaw 12205 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.603 OF 2022
                                       .....
                                      WITH
                       INTERIM APPLICATION NO.3315 OF 2022
                                       IN
                         CRIMINAL APPEAL NO.603 OF 2022

Mukul Goyal s/o. Arvind Goyal               ... Appellant
           Versus
The State of Maharashtra & Anr.             .... Respondents
                                      .....
                                     WITH
                         CRIMINAL APPEAL NO.740 OF 2022

Naina Surat Rawat w/o Mukul Goyal
d/o Surat Singh Rawat                  ... Appellant
           Versus
Arvind Goyal s/o Ishwar Prasad Goyal
& Anr.                                 ....Respondents
                                   .....
                                  WITH
                    CRIMINAL APPEAL NO.741 OF 2022

Naina Surat Rawat w/o Mukul Goyal            ... Appellant
             Versus
Meena Arvind Goyal & Anr.                    ....Respondents
                                     -----
Dr. Abhinav Chandrachood, Advocate a/w. Swati B. Sharma i/b. Nilesh
S. Patil, for the Appellant in Criminal Appeal No.603/2022.
Mr. Ashish Deep Varma, Advocate i/b. Advait U. Shukla, for the Appellant
in Criminal Appeal Nos.740/2022 & 741/2022 and for Respondent No.2
in Criminal Appeal No.603/2022.
Ms. Swati B. Sharma, Advocate for Respondent No.1 in Criminal Appeal
No.740/2022 & 741/2022.
Mr. S.R. Agarkar, APP for the Respondent-State in all matters.
API Mr. Mansing Patel, Kharghar police station is present.
                                     -----


   Deshmane(PS)
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                            CORAM : SARANG V. KOTWAL, J.

                            DATE       : 28th NOVEMBER, 2022
P.C. :

1. Two important issues arise in these three matters as I

shall elaborate further in this order. Appeal Nos.740/2022 and

741/2022 in effect are filed by the original complainant for

cancellation of anticipatory bail granted to the respondent No.1

respectively in those appeals; whereas Criminal Appeal

No.603/2022 is preferred by the appellant challenging the order

dated 22.4.2022 passed in Criminal Bail Application No.441/2021

by the Additional Sessions Judge, Panvel-Raigad. By the impugned

order the appellant's anticipatory bail application under Section

438 of Cr.P.C. was rejected. All these three appeals are filed under

the provisions of Section 14-A of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as the 'Atrocities Act'). For the sake of convenience, the

respondent No.2 in Criminal Appeal No.603/2022 is referred to as

the 'complainant', the appellant in Criminal Appeal No.603/2022 is

referred to as the 'husband' and the respondent No.1 in each of

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other appeals are referred to as the 'parents-in-law'.

2. The FIR was lodged by the complainant, who is wife of

the appellant in Criminal Appeal No.603/2022 on 25.11.2020 at

Kharghar police station vide C.R. No.252/2020 under Sections 498-

A, 323, 504, 506 read with 34 of the Indian Penal Code. Initially

the provisions of the Atrocities Act were not invoked. On

25.1.2021, the provisions under Sections 3(1)(r) and 3(1)(s) were

applied. Subsequently on 6.4.2022, Sections 3(1)(c),(p),(q), and

(zb) of the Atrocities Act were added. Since at this stage I am not

deciding these appeals on merits I am not making observations on

the merits of the case. For the purpose of passing this order, it is

necessary to refer to only the gist of the allegations in the FIR. The

FIR mentions that the complainant belongs to a Scheduled Tribe

from Uttarakhand. She came in contact with the husband through a

matrimonial site. The marriage took place between them on

4.2.2020. There are various allegations in the FIR, which according

to the complainant attract the provisions of Indian Penal Code

under which the FIR is lodged as well as the provisions under the

Atrocities Act which are mentioned hereinabove. Various instances

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are described in detail in the FIR.

3. Learned counsel for the appellant-husband

Dr.Chandrachood addressed some issues on merits of the case.

However, his main thrust of argument at this stage was that the

Scheduled Tribe to which the complainant allegedly belongs, was

declared as a 'Scheduled Tribe' only in the State of Uttarakhand and

not in any other State. The allegations pertain to the incidents

which had allegedly taken place in Delhi and in U.K. Therefore,

according to Dr. Chandrachood the provisions of the Atrocities Act

are not applicable. This was his main contention.

4. Today the arguments were heard mainly on this point

and all the points on merits of the matter were left open because I

propose to refer these issues to a Larger Bench and, therefore, all

the points on the merits of the matter are left open.

5. As far as the main contention raised before me today is

concerned, this is an important issue which will have impact on

many cases in different States and, therefore, it is necessary that

this issue is decided with reference to the submissions made by

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Dr.Chandrachood. His main argument was based on two

judgments of the Hon'ble Supreme Court which were delivered by

two different Constitution Benches consisting of five Judges

6. Before referring to submissions of both sides in detail, it

is necessary to refer to certain provisions which would help in

crystallizing the issue before the Court. The Atrocities Act was

enacted in the year 1989. The "Scheduled Castes and Scheduled

Tribes" were defined under Section 2(1)(c) of the Atrocities Act

thus :

"2. Definitions.--(1) In this Act, unless the context otherwise requires,--

xxxx xxxx

(c) "Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of article 366 of the Constitution;"

. Article 366 and the relevant clauses (24) and (25)

thereof read thus:

"366. Definitions.--In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say--

xxxx

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xxxx xxxx (24) "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution;

(25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;"

. The other Articles with reference to these clauses are

Articles 341 and 342; they read thus :

"341. Scheduled Castes.--(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

342.Scheduled Tribes.--(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union

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territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

7. According to Dr. Chandrachood, Articles 341 and 342 of

the Constitution of India specifically mention that the notifications

regarding Scheduled Castes and Scheduled Tribes are restricted to

that particular Union Territory or to that particular State and those

can never be extended to any other State or Union Territory. In

support of his contention, he relied on two Constitution Bench

judgments of the Hon'ble Supreme Court as in the case of :

(i) Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others1

(ii) Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes In the State of Maharashtra and another Vs.

Union of India and another2

8. He submitted that in both these Constitution Bench

judgments, there are clear observations that the rights giving rise to 1 (1990) 3 SCC 130

2 (1994) 5 SCC 244

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the members of Scheduled Castes and Scheduled Tribes are

restricted to that particular State or the Union Territory. He

particularly relied on the observations of the Hon'ble Supreme

court in Marri Chandra Shekhar Rao's case (supra) made in

Paragraphs-10, 13 and 14. They read thus :

"10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i.e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to other community or part of community or section.

Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other

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communities. This must be the basic approach to the problem. If one bears this basic approach in mind, then the determination of the controversy in the instant case does not become difficult. For the purpose of understanding the problem, it may be worthwhile to refer to the Report of the Joint Committee of the Parliament on the Scheduled Castes and Scheduled Tribes (Amendment) Order Bill, 1967. It may also be worthwhile to refer to the proceedings of the Constituent Assembly on September 17, 1949 dealing with draft Articles 303 and 304, which later on became Articles 341 and 342 respectively. Dr B.R. Ambedkar moving the Resolution observed as follows:

"That after Article 300, the following articles be inserted:

300-A. (1) The President may, after consultation with the Governor or Ruler of a State, by public notification specify the castes, races or tribes or parts of or groups within castes races or tribes, which shall for purposes of this Constitution be deemed to be Scheduled Castes in relation to the State.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued by the President under clause (1) of this article any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

300-B. (1) The President may after consultation with the Governor or Ruler of a State, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued by the President under clause (1) of this article any

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tribe or tribal community or part of or group within any tribe or tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the gazette specifying all the castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the government of each State, thereafter, if any elimination was to be made from the list so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President."

11. xxxxxx

12. xxxxxx

13. It is trite knowledge that the statutory and constitutional provisions should be interpreted broadly and harmoniously. It is trite saying that where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. This is well settled. See the observations of this Court in Venkataramana Devaru v. State of Mysore, 1958 SCR 895, 918 : AIR 1958 SC 255, where Venkatarama Aiyer, J. reiterated that the rule of construction is well settled and where there are in an enactment two provisions which cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that

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the expression 'for the purposes of this Constitution' in Article 341 as well as in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all -- to Scheduled Castes or Tribes and to non-scheduled castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates. There should be harmonious construction, harmonious in the sense that both parts or all parts of a constitutional provision should be so read that one part does not become nugatory to the other or denuded to the other but all parts must be read in the context in which these are used. It was contended that the only way in which the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words "for the purposes of this Constitution" must be given full effect. There is no dispute about that. The words "for the purposes of this Constitution" must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are

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carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution.

14. Our attention was drawn to certain observations in Elizabeth Warburton v. James Loveland, [1832 HL 499]. It is true that all provisions should be read harmoniously. It is also true that no provision should be so read as to make other provisions nugatory or restricted. But having regard to the purpose, it appears to us that harmonious construction enjoins that we should give to each expression

--"in relation to that State" or "for the purposes of this Constitution" -- its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. Otherwise, one has to bear in mind that

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if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted (sic inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non-Scheduled Castes or non- Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution."

9. The relevant portion in the other Constitution Bench

judgment referred to by Dr. Chandrachood in the case of Action

Committee (supra) is paragraph-16, which reads thus:

"16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different.

Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in

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another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:

"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them...."

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin."

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10. Learned counsel for the complainant as well as

Dr.Chandrachood also referred to two judgments which had

touched this particular issue. The first is the judgment of a Single

Judge Bench of Jharkhand High Court in Ashutosh Kumar Vs. State of

Jharkhand and another3; and the other judgment is of a Single Judge

Bench of Gujarat High Court in the case of Vaghela Dilipbhai Gulabsang

Vs. State of Gujarat4. Ashutosh Kumar's case does not clearly lay down

any proposition but leaves the matter for investigation by the

investigating officer. However, the Gujarat High Court judgment

does make a reference to this issue and it is observed in

paragraph-10 that in such case it may not confer any right or

privilege but the Atrocities Act does confer respect and dignity on

them and, therefore, it was held that due to migration they do not

lose their identity as persons belonging to Scheduled Caste or

Scheduled Tribe, as the case may be, and it was held that the

provisions of the Atrocities Act were applicable.

11. Learned counsel appearing for the complainant supported

3 2019 SCC OnLine Jhar 321

4 Decided on 31.7.2019 in R/Criminal Appeal No.1355/2019 (Gujarat High Court)

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this view taken by the Gujarat High Court and submitted that the

distinction will have to be made between civil rights and

commission of the offence. The object for enacting the Atrocities

Act was to protect dignity of a person belonging to Scheduled Caste

or Scheduled Tribe and, therefore, when an accused commits any of

the offences mentioned under the Atrocities Act with full

knowledge and with intention to humiliate or cause harm to the

person belonging to Scheduled Caste or Scheduled Tribe, then the

provisions of the Atrocities Act as far as commission of offences are

concerned, are directly attracted.

12. Learned APP Shri Agarkar also supported the stand taken

by learned counsel for the complainant.

13. The argument on behalf of the appellant appears to be

that since the issue involves liberty of a citizen, the statutory

provisions will have to be strictly interpreted. Whereas the

contention of the complainant is that the offences under the

Atrocities Act are defined to protect the victims from humiliation

and other atrocities. The mindset of the accused is relevant. If the

accused has knowledge that the victim is a member of Scheduled

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Caste or Scheduled Tribe in one State or Union Territory, his

intentional act defined as offence under the Atrocities Act would

still be an offence outside that particular State or Union Territory.

14. I have given my anxious consideration to the issue raised

before me and there is no doubt that it is an important question

which governs many such cases and an authoritative

pronouncement on the issue is necessary. Though no particular

view taken by any Bench of this Court is brought to my notice,

considering the importance of the issue I am invoking the

provisions of Rule 8 of Chapter I of the Bombay High Court

Appellate Side Rules, 1960. The said Rule reads thus :

" CHAPTER I JURISDICTION OF SINGLE JUDGES AND BENCHES OF THE HIGH COURT

8. Reference to two or more Judges.--If it shall appear to any Judge, either on the application of a party or otherwise, that an appeal or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he shall think fit."

15. For referring to a Larger Bench, it is not necessary that

there has to be a differing view from any other Bench. It was

observed thus by a Division Bench of this Court in the order dated

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5.5.2022 passed in Anticipatory Bail Application No.161/2022 and

companion mattes. It was observed that considering the importance

of the issue if the Court feels that the matter is required to be

decided by a Larger Bench because in its opinion it can more

advantageously heard by a Larger Bench, then there is no

impediment in referring the issue to a Larger Bench for

consideration. Therefore, I am inclined to refer this issue to a

Larger Bench under the said Rule.

16. The issue which is framed for consideration of the Larger

Bench is as follows :

"If a person belongs to a caste or a tribe which is declared

by notification as a Scheduled Caste or Scheduled Tribe

in a particular State or Union Territory, but not in other

parts of the country, then whether any act defined as an

offence under the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989; can be an

offence outside that State or Union Territory."

17. When I was hearing the submissions, another important

issue arose for consideration before me. All these three matters are

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filed as Appeals under Section 14-A of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The

question was whether such Appeals would lie before a Single Judge

or a Division Bench.

18. As of today, the judgment that governs the field is passed

by a Division Bench (Coram: R.K. Deshpande & M.G. Giratkar, JJ.)

of the Nagpur Bench of this Court in the case Gulabrao Marotrao Ulhe

Vs. The State of Maharashtra5. In that judgment, it was observed that

such appeals involving bail or anticipatory bail applications would

lie before a Single Judge Bench or a Division depending on the

punishment provided by the provisions of the Atrocities Act applied

in such cases. In other words, if the offence was punishable with

life imprisonment or death penalty, the appeals were to be placed

before a Division Bench and all other appeals were to be placed

before a Single Judge Bench.

19. Recently another Division Bench of this Court (Coram:

A.S. Gadkari & Milind N. Jadhav, JJ.) differed with the view taken

in Gulabrao Ulhe's case (supra) by passing an order in the case of

5 Decided on 24.4.2018 in Criminal Appeal No.193/2018.

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Sanjay Krushna Katkar Vs. The State of Maharashtra and another 6. While

disagreeing with the view of the Gulabrao Ulhe's case, it was

observed that these appeals were not appeals against conviction

and, therefore, they were not governed by the provisions

mentioned in Chapter I of the Bombay High Court Appellate Side

Rules, 1960 relating to the Criminal Matters which could be

decided by a Single Judge. The provision was mentioned in the

said Rules in Chapter I Rule 2 sub-rule (II). The Division Bench in

Sanjay Katkar's case held that clause (a) of Rule 2(II) deals with the

appeals against conviction and the distinction made on the basis of

the ultimate sentence was restricted to the appeals against

conviction. These appeals basically were for bail and anticipatory

bail and, therefore, clause (a) was not applicable. By these

observations, the issue was referred to the Larger Bench.

20. Today, it was argued before me that such appeals as per

the Rules are required to be heard by a Division Bench of this

Court. Both learned counsel referred to Section 14-A of the

Atrocities Act, which reads thus :

6 Order dated 10.11.2022 passed in Criminal Appeal No.949/2022.

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"14-A. Appeals.--(1) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

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

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

21. This Section is clear departure from the ordinary bail

applications and it is intended to have different considerations for

deciding such appeals. A special provision was made under Section

14-A(2) for preferring an appeal to High Court against the order of

the Special Court granting or refusing bail. This is different from

the provisions of the appeal under the Maharashtra Control of

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Organised Crime Act, 1999 (for short, 'MCOC Act') referred to by

the Division Bench in Sanjay Katkar's case (supra). Section 12 of

the MCOC Act reads thus :

"12. Appeal.- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgement, sentence or order, not being an interlocutory order, of a Special court to the High Court.

(2) Every appeal under this section shall be preferred within thirty days from the date of the judgment, sentence or order."

. The orders in Bail Applications are interlocutory in

nature. Therefore, the appeal under Section 12 of the MCOC Act

would not lie against orders granting or refusing bail.

22. Thus, as far as the MCOC Act is concerned, the bail

applications are maintainable before the High Court as ordinary

bail applications. There is no separate provision of appeal against

the order granting or refusing bail applications. This is quite

distinct from the provisions of the Atrocities Act which make special

provision of appeal even in the matter of grant or refusal of bail.

The considerations for Appeals are distinct. High Court can

examine correctness of the order of the Special Court granting or

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refusing bail. Therefore, it will have to be examined whether such

appeals would be governed by Rule 2 sub-rule (II) clause (e) of the

Chapter I of the Bombay High Court Appellate Side Rules, which

refers only to Bail Applications.

23. Since the matter is already referred to a Larger Bench I

am refraining from expressing my opinion, but it is necessary to

consider whether Section 14-A appeals would fall in any of the

categories mentioned for the matters which can be disposed of by a

Single Judge Bench. It would be advantageous if this issue is

placed before the same Bench considering the issue framed in

Sanjay Katkar's case (supra). Hence, this issue will have to be

decided by a Larger Bench. This particular issue can be formulated

as follows :

"The appeals under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 can be decided by a Single Judge Bench or by a Division Bench and whether such appeals would fall within any of the clauses (a) to (i) of the Rule 2(II) [Criminal] of Chapter I of the Bombay High Court Appellate Side Rules, 1960."

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24. Thus for convenience, both the issues are reproduced

hereinbelow as follows :

[i] If a person belongs to a caste or a tribe which is declared by

notification as a Scheduled Caste or Scheduled Tribe in a

particular State or Union Territory, but not in other parts of the

country, then whether any act defined as an offence under the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989; can be an offence outside that State or

Union Territory.

[ii] The appeals under Section 14-A of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989 can

be decided by a Single Judge Bench or by a Division Bench

and whether such appeals would fall within any of the clauses

(a) to (i) of the Rule 2(II) [Criminal] of Chapter I of the

Bombay High Court Appellate Side Rules, 1960.

25. As per Rule 8 of Chapter I of the Bombay High Court

Appellate Side Rules, 1960 the office is directed to place these

matters before the Hon'ble the Chief Justice for consideration.

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26. It is, of course, the prerogative of the Hon'ble the Chief

Justice under Rule 8 of Chapter I of the Bombay High Court

Appellate Side Rules, 1960 to constitute Bench of two or more

judges to decide the issues under reference.

27. Looking at the urgency cited by Dr. Chandrachood on

behalf of the appellant in Criminal Appeal No.603/2022 the parties

are at liberty to make appropriate application in the registry as also

appropriate applications for tagging these matters with Criminal

Appeal No.949/2020 . For the time being, interim order granted in

favour of the appellant in Criminal Appeal No.603/2022 is

extended till further orders.

(SARANG V. KOTWAL, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.12.01 18:22:33 +0530

Deshmane (PS)

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