Bombay High Court
The State Of Maharashtra vs Devidas Shankar Kale And Another on 2 May, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1964 OF 2019
THE STATE OF MAHARASHTRA
VERSUS
DEVIDAS SHANKAR KALE AND ANOTHER
...
WITH
CRIMINAL APPEAL NO.71 OF 2019
DEVIDAS S/O SHANKAR KALE
VERSUS
THE STATE OF MAHARASHTRA
...
WITH
CRIMINAL APPEAL NO.1008 OF 2022
THE STATE OF MAHARASHTRA
VERSUS
DEVIDAS SHANKAR KALE AND ANOTHER
...
Mr. A. V. Deshmukh, APP for the appellant - State in Criminal
Application No.1964 of 2019 and Criminal Appeal No.1008 of 2022.
Mr. N. B. Narwade and Mr. V. B. Kale, Advocate for appellant in
Criminal Appeal No.71 of 2019 and for respondent No.1 in Criminal
Application No.1964 of 2019 and Criminal Appeal No.100/ of 2022.
Mr. A. C. Sisodiya h/f Mr. A. B. Girase, Advocate for respondent No.2 in
Criminal Application No.1964 of 2019.
Mr. A. P. Avhad, Advocate for respondent No.3 in Criminal Application
No.1964 of 2019 and Criminal Appeal No.1008 of 2022 (Appointed
through Legal Aid). (Absent)
...
CORAM : SMT. VIBHA KANKANWADI AND
Y. G. KHOBRAGADE, JJ.
DATE : 2nd May, 2023.
appln-1964-2019 appeal-71-2019 & 1008-2022.odt
ORDER :- (Per Smt. Vibha Kankanwadi, J.)
. Criminal Application No.1964 of 2019 has been filed for
condoning the delay of 33 days in filing application seeking leave to
appeal under Section 378(1)(b) of the Code of Criminal Procedure.
The prosecution intends to challenge the acquittal of respondent No.1
- original accused No.1 from the offences punishable under Section
120-B Indian Penal Code and Section 3(2)(va) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short
"Atrocities Act") so also they want to challenge the acquittal of
respondent No.2 from the offence punishable under Section 307 and
120-B of Indian Penal Code as well as Section 3(2)(va) of the Atrocities
Act. Here, the fact will have to be placed on record is that already the
State has filed Criminal Appeal No.1008 of 2022 under Section 377 of
the Code of Criminal Procedure, which was against original accused
No.1 for enhancement in sentence. Here, the respondents - original
accused Nos.1 and 2 stood prosecuted in Special Case No.41 of 2018
before the learned Special Judge/Additional Sessions Judge,
Ahmedngar for the offence punishable under Sections 307, 120-B of
Indian Penal Code and Section 3(2)(va) of the Atrocities Act. After the
evidence was led, considering the entire evidence and hearing both
sides, the learned Trial Judge has convicted accused No.1 on
10.01.2019 for the offence punishable under Section 307 of Indian
appln-1964-2019 appeal-71-2019 & 1008-2022.odt
Penal Code and sentenced him to suffer rigorous imprisonment for
seven years and to pay fine of Rs.1,00,000/-, in default to suffer simple
imprisonment for one year. The fine amount has been directed to be
paid as compensation to the injured under Section 357(1) of the Code
of Criminal Procedure. However, original accused No.2 was acquitted
of all the charges. Thus, as aforesaid, Criminal Appeal No.1008 of
2022 has been filed under Section 377 of the Code of Criminal
Procedure for enhancement in the sentence along with application
for condonation of delay, however, by order dated 22.12.2022, the
said delay was condoned and, thus, the said appeal came to be
registered. It is still pending for admission and now, Criminal
Application No.1964 of 2019 is for condonation of delay of 33 days in
filing Application for Leave to Appeal under Section 378(1)(b) of the
Code of Criminal Procedure. It will not be again out of place to
mention here that original accused No.1 has filed Criminal Appeal
No.71 of 2019 challenging the conviction under Section 374 of the
Code of Criminal Procedure.
2. Heard learned Advocates for the respective parties and learned
APP for the State.
3. At the outset, we would like to say that the prosecution side as
well as the side of the accused appears to be under wrong impression
appln-1964-2019 appeal-71-2019 & 1008-2022.odt
that the provisions for appeal under the Code of Criminal Procedure
are applicable to the proceedings. Here, the offence was not only
under Indian Penal Code, but also under Section 3(2)(va) of the
Atrocities Act. Therefore, the investigation was carried out as per the
said Act and the charge-sheet was filed before the Special Court
under Section 14 of the Atrocities Act. Section 14 of the Atrocities Act
prescribes that for the purpose of providing speedy trial, exclusive
Special Courts are required to be established in each District and
such Courts shall have power to directly take cognizance of offences
under the Act. Section 14 was amended in 2016. That means the
charge-sheet will have to be filed directly before the Special Court
established under Section 14 of the Atrocities Act and accordingly, in
this case also, the charge-sheet was filed before the Special Court and,
therefore, it has been numbered as Special Case on 24.01.2018.
4. Section 14-A of the Atrocities Act deals with appeals, which
reads thus :-
14A. 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
appln-1964-2019 appeal-71-2019 & 1008-2022.odt
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 ."
The words "Notwithstanding anything contained in the Code of
Criminal Procedure, 1973" would carve out the right to file appeal
under any Section in the Code of Criminal Procedure and then confer
the right to file appeal under Section 14-A of the Atrocities Act. As
per Section 14-A(1), an appeal would lie from any judgment, sentence
or order of a Special Court to the High Court both on facts and on
law. Therefore, when specific provision is made under a special
appln-1964-2019 appeal-71-2019 & 1008-2022.odt
enactment, the general provisions of the Code of Criminal Procedure
will not be applicable. Therefore, all the appeals in the present
matter ought to have been under Section 14-A(1) of the Atrocities Act.
No doubt, as per Section 14-A(3) of the Atrocities Act, every appeal
under this Section has to be preferred within a period of ninety days
from the date of judgment, sentence or order appealed from.
Therefore, limitation is prescribed and the proviso to sub-section (3)
of Section 14-A gives power to this Court to entertain an appeal after
expiry of the said period of ninety days, if this Court is satisfied that
the appellant had sufficient cause for not preferring the appeal
within the period of ninety days. Further, special provision is made
in the second proviso to sub-section (3) of Section 13-A of the
Atrocities Act that no appeal would be entertained after the expiry of
period of one hundred and eighty days. Therefore, even the general
provisions of Section 5 of the Limitation Act for getting the delay
condoned in preferring an appeal or application will not be
applicable, when it comes to a judgment or order passed by the
Special Court established under Section 14 of the Atrocities Act.
5. In view of the above-said legal position, which is now accepted
by learned APP as well as learned Advocate Mr. N. B. Narwade for
the appellant in Criminal Appeal No.71 of 2019, both of them seek
leave to amend.
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Further, learned APP prays that he be allowed to carry out the
similar amendment, which by way of application under Section
378(1)(B) of the Code of Criminal Procedure the prosecution intends
to file, to be made in Criminal Appeal No.1008 of 2022, wherein
already the delay has been condoned by this Court. As the mistake
has been committed by both sides, definitely, the amendment needs
to be allowed. Accordingly, the following order is passed :-
ORDER
i) The prosecution is allowed to carry out necessary
amendments in Criminal Appeal No.1008 of 2022, which
could be in the nature of the grounds, which they wanted
to raise in proceedings, which they intended to file in
application under Section 378(1)(b) of the Code of
Criminal Procedure.
ii) In view of the said amendment being carried out,
Criminal Application No.1964 of 2019 stands disposed of.
iii) Appellant in Criminal Appeal No.71 of 2019 is also
allowed to carry out the necessary amendments in the
said appeal.
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iv) Original informant - victim be added as party
respondent wherever necessary and amendment to that
effect stands allowed, if not already made.
v) All the amendments to be carried out on or before
14.06.2023.
[ Y. G. KHOBRAGADE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
