Jharkhand High Court
Ganesh Rana @ Ganesh Mistry vs The State Of Jharkhand on 24 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 1487 of 2022
------
1. Ganesh Rana @ Ganesh Mistry
2. Krishna Rana
3. Harish Rana
4. Sahash Ram Rana @ Sasaram Rana ... Petitioners
Versus
The State of Jharkhand ... Opposite Party
------
CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
------
For the Petitioners : Mr. Sushant Kr. Sinha, Advocate
: Mr. Rajiv N. Prasad, Advocate
For the State : Mr. Subodh Kr. Dubey, Addl. P.P.
------
Order No.03 Dated- 24.03.2022
Heard the parties.
Apprehending their arrest, the petitioners have moved this
Court for grant of privilege of anticipatory bail in connection with
Gidhour P.S. Case No.21 of 2021 registered under sections 147/
148/149/341/447/323/307/504/506/34 of the Indian Penal Code
and under Section 3 and 4 of SC/ST (Prevention of Atrocities) Act.
The Learned counsel for the petitioners submits that rejection
order of anticipatory bail application has been passed by the
Special Judge, under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act,1989 Cases, Chatra. It is submitted
by the learned counsel for the petitioners that earlier the
petitioners filed Cr. Appeal (S.J.) No.350 of 2021 and the learned
Addl. P.P. before a coordinate Bench of this Court has submitted
that police after investigation has found the offence under the
Indian Penal Code and not under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,1989 and in view of
the said submission, learned counsel for the petitioner-appellants
sought permission to withdraw the Cr. Appeal (S.J.) No.350 of 2021
and accordingly, the criminal appeal was dismissed.
Learned counsel for the petitioners draws attention of this
court to the judgment of Hon'ble Supreme Court of India in the
case of Prathvi Raj Chauhan v. Union of India reported in (2020) 4
SCC 727, paragraph no.11 of which reads as under:-
"11. Concerning the applicability of provisions of
Section 438 CrPC, it shall not apply to the cases
under the 1989 Act. However, if the complaint
does not make out a prima facie case for
applicability of the provisions of the 1989 Act, the
bar created by Sections 18 and 18-A(i) shall not
apply. We have clarified this aspect while deciding
the review petitions."
And submits that the offence punishable under the penal
provisions under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act,1989 is not made out, hence the
petitioner be given the privilege of anticipatory bail in exercise of
the powers under section 438 of the Code of Criminal Procedure.
The stamp reporter has raised objection regarding
maintainability of the petitioner under section 438 of the Code of
Criminal Procedure, as admittedly the anticipatory bail of the
petitioner was rejected by the Special Judge, under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 in
view of section 14-A (2)of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,1989 which prescribes for
filing of an appeal in respect of an order of refusing to bail passed
by the Special Court under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,1989.
It will be profitable at this stage to refer to section 14-A (2) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 reads as under:-
"Section 14-A(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." (Emphasis supplied)
The bare perusal of section 14 A (2) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act,1989, makes it
crystal clear that deciding factor as to whether an appeal will lie or
an application under Section 438 Cr.P.C. will lie when the bail is
refused by the Special Court under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act,1989, is answered
in the verbatim of Section 14 A (2) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 itself which
says that when an order is passed by the Special Court, the appeal
will lie and as there is no dispute that the rejection order was
passed by the Special Court under Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, so the appeal
will lie and when the appeal lies to this Court certainly an
application under Section 438 Cr.P.C. which is the concurrent
power exercised by the learned Special Court under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989
already will not be maintainable.
So far as the judgment relied by the learned counsel for the
petitioners in the case of Prathvi Raj Chauhan v. Union of India
(supra) is concerned, the same relates to the exercise of power
under Section 438 Cr.P.C. but in this matter, the issue of a
procedure as to whether an appeal will lie in view of Section 14-A
(2) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 or an application under Section 438 Cr.P.C.
will lie.
It is a different matter while exercising the appellate
jurisdiction under Section 14-A (2) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellate
court may consider as to whether the Special Court under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 has passed order as per law or not.
In view of the discussion made above, this Court is of the
considered view that the application under Section 438 of the
Cr.P.C. is not maintainable when the bail has been refused by the
Special Court under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act,1989 in view of these specific
provision that an appeal will lie against such order, hence, this
anticipatory bail application is not maintainable. Accordingly, the
same is dismissed as not maintainable.
(Anil Kumar Choudhary, J.)
AFR-Sonu/Gunjan-
