Madhya Pradesh High Court
Devdatt Banwasi vs The State Of Madhya Pradesh on 17 March, 2025
..1..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
IN THE HIGH COURT OF MADHYA PRADESH
AT JAB A L PU R
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
CRIMINAL APPEAL No. 9530 of 2024
DHARAM SINGH PARIHAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WITH
CRIMINAL APPEAL No. 9968 of 2024
RAVI YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
CRIMINAL APPEAL No. 10414 of 2024
DEVDATT BANWASI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
CRIMINAL APPEAL No. 13656 of 2024
SHAJID KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ranjan Banerjee, Ms. Abhilasha Bagri, Shri Aryan Urmaliya, Shri Manoj Kumar
Mishra and Shri Shailendra Dwivedi - Advocates for the appellant in their respective
appeal.
Signature Not Verified
Signed by: CHRISTOPHER
PHILIP
Signing time: 17-03-2025
18:03:42
..2..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
Shri Anubhav Jain - Government
Government- Advocate for respondent/State.
Reserved on - 10.02.2025
Pronounced on - 17.03.2025
........................................................................................................................................
...............................................................................................................................
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
Justice:
1. By order dated 09.09.2024 passed in Criminal Appeal
No.9530/2024, the learned Single Judge has referred the following
question to be consider
considered by this Court:-
"as
as to whether a second criminal appeal is maintainable
against the same impugned order rejectinrejecting
g bail, after
rejection of first criminal appeal under Section 14(A) of the
SC and ST (Prevention of Atrocities) Act and the accused is
not required to file a fresh application for grant of bail
before the Special Court after dismissal of first criminal
appeal
peal by this Court".
Court
2. Similar is the situation in connected Criminal Appeal
Nos.9968/2024, 10414/2024 and 13656/2024. Hence, we are proceeding
ahead to consider the said referred question.
3. When the matter came before the learned Single Judge, he found
two divergent views on the issue in question expressed by two different
learned Single Benches. On one way, in
n Criminal Appeal No.4668/2017
(Ramu
Ramu @ Ramlal Vs. State of Madhya Pradesh vide order dated
05.12.2017 following observations have been made:-
"10. Further, the 'law of bail' is an integral part of Article
21 of the Constitution of India which provides that no
..3..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
person shall be deprived of life and liberty except by due
process of law. It is often said that 'bail' is the right and
refusal thereof is an exception thereto.
11. In the backdrop of the aforesaid, the provision for
'appeal' under section 14(A)(2) of the Act of 1989 in effect
is an application for regular bail against rejection
re order by
the Special Court or the Exclusive Special Court under
section 439 Cr.P.C., for the reason that section 14(A)(2)
opens up nonnon-obstinate clause providing; notwithstanding
anything contained in subsection (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.
12. Section 378 deals with appeal in case of acquittal,
sub-section
section (3) of section 378 Cr.P.C. provides that no
appeal to the High Court under sub-section
sub section (1) or
subsection (2) shall be entertained except with the leave of
the High Court.
As such, the nomenclature of 'appeal' used in section 14A
of the Act of 1989 is not an appeal in sstrict sense but, a
provision enabling a person before the High Court against
granting or refusing bail by the Special Court or the
Exclusive Special Court specified therein.
If an appeal under section 14(A)(2) of the Act of 1989 for
grant of bail is refus
refused by the High Court and the accused
prefers a fresh appeal for grant of bail then if interpreted
the word 'appeal' in its strict sense as an appeal under
section 378 Cr.P.C., then the provision shall be in direct
conflict with the settled law as the principles of res judicata
or constructive res judicata does not apply to a bail
application and also in conflict with the personal liberty
enshrined under Article 21 of the Constitution
onstitution of India.
India
13. In view of the discussion in the preceding paragraphs
paragraph
of the order, the objection on behalf of the respondent/State
..4..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
is overruled. It is held that a fresh appeal is maintainable
after rejection of first appeal under section 14(A)(2) of the
Act of 1989.""
4. On other way, in another case i.e. Atul Rajput Vs. The State of
Madhya Pradesh & another in Criminal Appeal No.3261/2024 vide
order dated 10.04.2024 relying on the decision dated 31.08.2023 passed
in Criminal Appeal No.7453/2023 (Ketan
(Ketan Vs. State of M.P.),
M.P. the
another coordinate Single Bench observed as follows:
'3. The question which arise for consideration is whether
second or more appeal under Section 14-A 14 A of the SC/ST
(Prevention of Atrocities) Act can be repeatedly filed against
one and same order by which an application under Section
439 of Cr.P.C. has been dismissed by the trial Court.
4. In the case, two appeals preferred assailing order dated
26.10.2021 have already been dismissed. As per the law laid
down by the CoCo-ordinate Bench of this Court in the case of
Ketan vs. The State of M.P. and others order rder dated
31.08.2023 passed in Cr.A. No.7453/2023 , in para 20 and 21
of the order, Coordinate Bench has held that an appeal under
Section 14-AA (2) of the Act is maintainable against a fresh
order passed by the Special Court rejecting the subsequent
application
cation for grant of bail irrespective of the fact whether
the appeals are mentioned as second, third or fourth. The
mere mentioning of criminal appeal as second, third or fourth
would not change the right of the applicant to challenge the
fresh order.
5. A Division Bench of the High Court of Chhattisgarh in
the case of Dushyant Pandey vs. State of Chhattisgarh by
order dated 12.04.2023 passed in Cr.A. No.1797/2022 also
answered the reference in following terms. Para 31 is
reproduced as under:
"Thus, we are of the considered opinion that once the appeal
under Section 14A(2) of the POA Act is dismissed by this
..5..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
Court on merits, the subsequent appeal under any change of
circumstances would not be maintainable for two reasons
firstly, that by the statutory scheme
heme of appeal enacted under
Section 14A, the jurisdiction of this Court under Section 439
of the CrPC stands impliedly excluded as the power to grant
bail under Section 439 of the CrPC hashas now only been vested
to the Special Court constituted under Section 14 of the POA
Act and this Court is only empowered to hear appeal under
Section 14A(2) of the POA Act against refusal or grant of bail
by the Special Court under the POA Act and secondly, that
entertaining the subsequent appeal under change of
circumstances
umstances directly would amount to review of its earlier
order which is expressly provided by Section 362 of the
CrPC, as the Court has also become functus officio in respect
of that matter. Accordingly, we hereby answer the reference
as under: -
"1. Once an appeal under Section 14A of the POA Act
against the order passed by the Special Court rejecting the
application under Section 439 of the CrPC is decided on
merits or otherwise by this Court, subsequent appeal under
change of circumstances would not be directly
irectly maintainable
under Section 14A of the POA Act before this Court even on
change of circumstances and remedy to the accused, if any, is
to file an application before the Special Court for grant of
bail.
2. Since the answer to the first stated questi
question
on is in
negative, it would not be expedient to answer the second
stated question."
6. In the light of above settled law, I am of the considered
view that this appeal which is a third appeal against one and
same order which have already been appealed two times
being not maintainable is dismissed.
7. However, appellant shall be at liberty to move fresh
application under Section 439 of Cr.P.C. before the trial
Court. In case repeated bail application is dismissed, he shall
..6..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
be at liberty to prefer an appeal before this Court in
accordance with the provisions of the Act.
Act."
5. Learned counsel for the appellants inter alia submitted that there
are two contradictory views expressed by the two different Single
Benches under reference,
reference which requires to be considered and decided
by this Court in either way.
6. Shri Anubhav Jain, learned
earned Government Advocate argued that
repeat appeal under Section 14
14-A(2)
A(2) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the
Special Act") for grant of bail before this Court is not maintainable but
fresh bail application under Section 439 of the Cr.P.C. for the offences
under the Special Act is maintainable before the Trial
rial Court/Special
Court
Court. Relying on the judgments passed by the learned Single Bench in
Criminal Appeal No.7453/2023 ((Ketan Vs. State of M.P.)) vide order
dated 31.08.2023, order da
dated 05.04.2023 passed in Criminal Appeal
No.1502/2023 (Neeraj
Neeraj Verma Vs. State of M.P.
M.P.) and order dated
12.04.2023 passed by the Division Bench of High Court of Chhattisgarh
in Criminal Appeal No.1797/2022 ((Dushyant
Dushyant Pandey Vs. State of
Chhattisgarh),, he contended that once the High Court exercises the
appellate jurisdiction while deciding the bail application captioned as
'criminal appeal' under Section 14
14-A(2)
A(2) of the Special Act for the
offence under the Special Act against the order of the Special Court/Trial
Court granting
ting or refusing to grant bail under Section 439 of the Cr.P.C.
Cr.P.C.,
the statutory enactment of the legislature does not confer authority upon
the High Court to exercise appellate jurisdiction against the same order
of the Special Court. However, fresh bail application under Section 439
..7..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
of the Cr.P.C on the changed circumstances
circumstances is maintainable before the
Trial
rial Court/Special Court, against which whether allowing or refusing to
grant bail, the applicant can invoke the appellate jurisdiction of the High
Court under Section 14-A(2)
14 of the Special Act against that order of the
Special Court.
7. Heard learned counsel for the parties on the said limited point.
8. To resolve the issue in question, it is necessary to consider the legal
aspect on the subject. The Parliament enacted the Special Act which came
into effect from 12th September, 1989. As per Section 2((d), "Special
Court" means a Court of Session specified as a Special Court in Section
14. The "Exclusive Special Court" has been defined as per Section 2(bd)
that "Exclusive Special Court" means the Exclusive Special Court
established under sub
sub-section
section (1) of Section 14 exclusively to try the
offences under this Act.
Act
9. Section 14 of the Special Act envisages establishment of the
"Special Court" and "Exclusive Special Court" for the purpose of
providing speedy trial of the cases under the Special Act.
10. The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities)
s) Amendment Act, 2015 was brought into force with effect
from 26.01.2016
2016 by which the extensive amendment was made in the
Act. Section 14 of the Act provides for Special Court and Exclusive
Special Court with power and jurisdiction to try the offences under the
Act and further, power to directly take cognizance of the offence under
the Act was introduced. Section 14A was also introduced with effect
..8..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
from 26.01.2016
2016 which provides for appeals from any judgment,
sentence or order, not being an interlocutor
interlocutoryy order, of a Special Court or
an Exclusive Special Court, to the High Court both on facts and on law.
Sub-section
section (2) of Section 14A further provides that an appeal shall lie to
the High Court against an order of the Special Court or the Exclusive
Special Court granting or refusing bail. For ready reference, Section 14
of the Special Act is reproduced as follows:
"14.
14. Special Court and Exclusive Special Court.--(1)
Court (1) For the
purpose of providing for speedy trial, the State Government shall,
with the concurrence of the Chief Justice of the High Court, by
notification in the Official Gazette, establish an Exclusive Special
Court for one or more Districts:
Provided that in Districts where
where less number of cases under this
Act is recorded, the State Government shall, with the concurrence
of the Chief Justice of the High Court, by notification in the Official
Gazette, specify for such Districts, the Court of Session to be a
Special Court to try the offences under this Act:
Provided further that the Courts so established or specified
shall have power to directly take cognizance of offences under this
Act.
(2) It shall be the duty of the State Government to establish
adequate number of Courts ttoo ensure that cases under this Act are
disposed of within a period of two months, as far as possible.
(3) In every trial in the Special Court or the Exclusive Special
Court, the proceedings shall be continued from day
day-to-day
day until all
the witnesses in atte
attendance
ndance have been examined, unless the Special
Court or the Exclusive Special Court finds the adjournment of the
same beyond the following day to be necessary for reasons to be
recorded in writing:
..9..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
Provided that when the trial relates to an offence under this th
Act, the trial shall, as far as possible, be completed within a period
of two months from the date of filing of the charge sheet".
sheet
11. Sub-section
section (2) of Section 14-A
A of the Special Act specifically
provides that an appeal shall lie to the High Court against an order of the
Special Court or the Exclusive Special Court granting or refusing bail.
Section 14-A
A of the Special Act is quoted as hereunder:-
"14-A.
A. Appeals.--(1)
Appeals 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
sub-section
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
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
ovided 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
sub-section
section (1) shall, as far
as possible, be disposed of within a period of three months from
the date of admission
dmission of the appea
appeal."
12. The word used in Section 14A of the Special Act is "appeal". The
scope of appeal is limited only to see correctness of the order passed by
..10..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
Trial
rial Court/Special Court.
Court Once
nce the appeal for granting or refusing bail
has been considered by the High Court then aagain
gain in the event of change
of circumstances, the High Court cannot consider repeated appeal against
the same order granting or refusing bail. The reason is that the doctrine of
functus officio would apply in such a case. In appeal, the Court is
required to consider whether the Special Court has erred in granting or
denying relief to the appellant on the basis of the order under challenge.
The Court is required to see whether the order of the Court below can be
sustained and
nd its findings are in accordance with the legal and factual
issue involved in the consideration of bail application of the accused by
the Special Court or not.
13. The Supreme Court in the case of Shakar Kerba Jadhav Vs. State
of Maharashtra reported in 11969
969 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.
appeal. Its jurisdiction should be coextensive with
that of the Trial
rial Court. Therefore, the Court while hearing the appe
appeal
under Section 14A(2) of the Special Act considers the error committed
by the Special Court and grant/deny relief after such consideration.
14. The only remedy would be to file fresh application before the
Special Court for grant of bail. In that situa
situation,
tion, if the bail application is
rejected by the Special Court then repeat appeal can be filed before the
High Court against that order granting or refusing the bail. It is pertinent
to mention here that mere mentioning of criminal appeal as second, third
or fourth would not change the right of the applicant to challenge the
fresh order.
..11..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
15. The section does not contemplate that a second criminal appeal
will lie to the High Court against the same rejection order of the Special
Court, if the High Court earli
earlier
er 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.
filed
Therefore,
efore, every time an accused has to approach the court below for
grant of bail unsuccessfully, he may prefer a fresh criminal appeal
against the order passed therein before the High Court.
16. On earlier occasion, the learned Single Judge of this Court in the
case of Neeraj Vs. State of Madhya Pradesh in Criminal Appeal
No.1502/2023 by order dated 05.04.2023 considering
consider the similar issue
observed that once an appea
appeal has been decided under Section
n 14A of the
Special Act, the order that was challenged in the said appeal ceases to
exist, therefore, the second appeal against the original order granting or
rejecting bail passed by the Special Court or the Exclusive Special Court,
is not maintainable. The appellant would have to approach the Special
Court or Exclusive Special Court afresh for an order of bail. The learned
Single Judge further observed that the constraint of an order passed by
the High Court under 438 or 439 of Cr.P.C. barring the inferior
infer court
from entertaining an application for bail in line with judicial propriety,
will not apply in the case of a fresh application under the Special Act.
Even though the High Court may have dismissed an appeal against the
previous order passed by the learned
learned Court below rejecting the
application for bail of the accused, a change in circumstance
demonstrated by the accused before the learned T
Trial
rial Court does not bar
..12..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
it from entertaining the fresh application. The relevant paras are as
follows:-
"4. Section 20 of the Special Act provides that the Act shall
have an overriding effect over all other laws which are
inconsistent with the Special Act. Section 14A of the Special Act
deals with appeals. Sub
Sub-section
section (1) of Section 14 (A) ousts the
jurisdiction of the Cr.P.C. with regard to appeals arising from a
judgment, sentence or order, not being an interlocutory order,
passed by a Special Court or an Exclusive Special Court to the
High Court, both on facts and on law.
5. Subsection 2 of Section 14 (A) provides
provides that an appeal
shall lie to the High Court against an order of the Special Court
or the Exclusive Special Court granting or refusing bail. A
purposive interpretation of the said provision reveals that in the
scheme of the Special Act, it is only the SSpecial
pecial Court or the
Exclusive Special Court, which has the authority to entertain an
application under section 438 and 439 of the Cr.P.C. Either of
the parties, who are dissatisfied by the order passed by the
aforementioned Courts, can approach the High Court Court under
Sub-section
section 2 of Section 14A of the Special Act. The High Court,
when it examines the order passed by the lower Court, is acting
in an appellate capacity under section 14A of the Special Act
which is different from its concurrent jurisdiction under
under Section
438 or 439 of the Cr.P.C. While entertaining an application for
bail under Section 438 or 439 Cr.P.C., the High Court, which
has concurrent jurisdiction along with the Court of Sessions and
can examine first hand whether, on the basis of the allallegations
against an accused, he is entitled for the benefit of bail or
anticipatory bail. However, while acting as a court of appeal
under section 14A(2), the High Court is not acting as a Court of
original jurisdiction but, it is performing the function oof an
appellate Court where all that it has to examine is the
correctness of the order passed by the learned Court below
under Section 438 or 439 Cr.P.C. If the High Court approves of
the order passed by the learned Court below then it dismisses
the appeal upholding the impugned order. However, if the High
Court is of the opinion that the order granting or rejecting bail
..13..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
to the accused by the learned Court below is not in order, then it
allows the appeal and sets aside the impugned order. Once an
appeal has been decided under 14A the order that was
challenged in the said appeal ceases to exist. Therefore, a
second appeal against the original order granting or rejecting
bail passed by the Special Court or the Exclusive Special Court,
is not maintainable.
6. Once an appeal is dismissed, the appellant would have
to approach the Special Court or the Exclusive Special Court
afresh for an order of bail. While entertaining such a second
application, the learned Court below can pass an order granting
bail, if it finds
ds a change in circumstance. The constraint of an
order passed by the High Court under 438 or 439 baring the
inferior Court from entertaining an application for bail in line
with judicial propriety, will not apply in the case of a fresh
application under tthe
he Special Act. Even though the High Court
may have dismissed an appeal against the previous order
passed by the learned Court below rejecting the application for
bail of the accused, a change in circumstance demonstrated by
the accused before the learned trial Court does not bar it from
entertaining the fresh application.
application."
17. The similar issue was considered by the learned Single Bench
of this Court in the case of Ketan Vs. The State of Madhya Pradesh
CRA No.7453/2023 vide order dated 31.08.2023 wherein the learned
Single Judge observed that under Section 14A(2) of the Special Act,
criminal appeal is maintainable against an order of the Special Court
or Exclusive Special Court granting or refusing bail.
bail After rejecting
or withdrawal of criminal appeal before this Court and approaching
the Special Court for grant of bail with the changed circumstances,
the order passed by the Special Court is fresh order on merit and,
therefore, the same can be challenge
challenged
d under Section 14A(2) by filing
an appeal before the High Court
Court.. The learned Single Judge further
..14..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
observed that subsequent app
appeal for grant of bail is maintainable
against fresh order passed by the Special Court rejecting the bail
irrespective of the fact whether the appeals are mentioned as second,
third or fourth. The learned Single Judge elaborately dealt with the
aspect of non-obstante
obstante clause where the provision starts with
"Notwithstanding anything contained". The relevant par
paras
as are as
follows:-
"14. Section 14A(2) of the POA Act begins with non obstante
clause "notwithstanding anything contained in sub
sub-section
section (3)
of section 378". It would be appropriate to notice the meaning
and purport of "non obtante clause".
15. A non obst
obstante
ante clause is generally incorporated in a
statute to give overriding effect to a particular section or the
statute as a whole.The meaning of 'non obstante clause' has
been explained in the Advanced Law Lexicon by P. Ramnath
Aiyar as follows: -
"Non obstantete clause. A clause in a statute which overrides all
provisions of the statute. It is usually worded :
'Notwithstanding anything in ...' Need not always have effect of
cutting down clear terms of enactment. Enacting part when clear
can Control non obstante clause. A clause used in public and
private instruments intended to preclude, in advance, any
interpretation contrary to certain declared objects or purposes."
16. A clause beginning with 'notwithstanding anything
contained in this Act or in some particular provision in the Act
or in some particular Act or in any law for the time being in
force', is sometimes appended to a section in the beginning, with
a view to give the enacting part of the section in case of conflict
an overriding effect over th
thee provision or Act mentioned in the
non obstante clause. It is equivalent to saying that in spite of the
provision or Act mentioned in the non obstante clause, the
enactment following it will have its full operation or that the
..15..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
provisions embraced in the nnon
on obstante clause will not be an
impediment for the operation of the enactment. Thus a non
obstante clause may be used as a legislative device to modify the
ambit of the provision or law mentioned in the non obstante
clause or to override it in specified circumstances. (See page
364 of Principles of Statutory Interpretation by Justice G.P.
Singh, 12th Edition 2010.)
17. The nature and object of non obstante clause came to be
considered by their Lordships of the Supreme Court in the
matter of Union of India and another v. G.M. Kokil and others
AIR 1984 SC 1022 in which it has been held that a non obstante
clause is a legislative device employed to give overriding effect
to certain provisions over some contrary provisions that may be
found either in the same enactment or some other enactment to
avoid the operation and effect of all contrary provisions.
18. Similarly, in the matter of State of Bihar and others v.
Bihar M.S.E.S.K.K. Mahasangh and others AIR 2005 SC 1605,
the effect of non obstante clause has been
been explained by their
Lordships of the Supreme Court in paragraph 47 of the report
as under: -
"47. Normally the use of phrase by the Legislature in a
statutory provision like 'notwithstanding anything to the
contrary contained in this Act' is equivalent to saying that the
Act shall be no impediment to the measure (See Law Lexicon
words 'notwithstanding anything in this Act to the contrary).
Use of such expression is another way of saying that the
provision in which the non obstante clause occurs usually
wouldld prevail over other provisions in the Act. Thus, non
obstante clauses are not always to be regarded as repealing
clauses nor as clauses which expressly or completely
supersede any other provision of the law, but merely as
clauses which remove all obstruc
obstructions
tions which might arise out
of the provisions of any other law in the way of the operation
of the principle enacting provision to which the non obstante
clause is attached. (See Bipathumma and others vs. Mariam
Bibi; (1966(1) Mysore Law Journal page 162 and and at page
165."
..16..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
19. Thus, it is quite vivid that a non obstante clause is a
legislative device which is employed by the competent Legislature
to give overriding effect in case of any conflict or inconsistency
over the provisions of the same Act or other Ac
Acts.
ts. The purpose of
non obstante clause is to provide the way for full operation of
enacting provision without any impediment of obstruction of any
provisions of the same Act or any other Act. The main object is to
provide full operation of the Act.
Act."
18. We may consider the order dated 12.04.2023 passed in Criminal
Appeal No.1797/2022 by the Division Bench of the High Court
Chhattisgarh in the case of Dushyant Pandey Vs. State of Chhattisgarh
wherein the Division Bench also considered the provisions of Sec
Section
14A(2) of the Special Act and is of the view that once
once the appeal is
dismissed by the High Court on merit, the subsequent appeal under any
change of circumstances would not be directly maintainable and remedy
to accused, if any, is to file an application
application before the Special Court for
grant of bail.. The relevant para of the said order is as follows:
follows:-
"31. Thus, we are of the considered opinion that once the
appeal under Section 14A(2) of the POA Act is dismissed by
this Court on merits, the subsequent appeal
appeal under any change
of circumstances would not be maintainable for two reasons
firstly, that by the statutory scheme of appeal enacted under
Section 14A, the jurisdiction of this Court under Section 439
of the CrPC stands impliedly excluded as the power to grant
bail under Section 439 of the CrPC has
has now only been vested
to the Special Court constituted under Section 14 of the POA
Act and this Court is only empowered to hear appeal under
Section 14A(2) of the POA Act against refusal or grant of bail
by thee Special Court under the POA Act and secondly, that
entertaining the subsequent appeal under change of
circumstances directly would amount to review of its earlier
order which is expressly provided by Section 362 of the
CrPC, as the Court has also become functus officio in respect
..17..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
of that matter. Accordingly, we hereby answer the reference
as under: -
"1. Once an appeal under Section 14A of the POA Act
against the order passed by the Special Court rejecting the
application under Section 439 of the CrPC is decided on
merits or otherwise by this Court, subsequent appeal under
change of circumstances would not be directly maintainable
under Section 14A of the POA Act before this Court even on
change of circumstances and remedy to the accused, if any, is
to filee an application before the Special Court for grant of
bail.
2. Since the answer to the first stated question is in
negative, it would not be expedient to answer the second
stated question."
19. Keeping in view the aforesaid provisions relating to appeal against
the order granting or refusing bail as envisaged under Section 14A(2)
14A of
the Special Act and after
after minute scrutiny of the above judgments,
judgment we are
of the considered view that after dismissal of the appeal under Section
14A(2) of the Special Act by the
t High Court on any ground,
ground the
subsequent appeal before the High Court would not be maintainable. It is
needless to mention that the repeat appeal for bail after dismissal of the
appeal would not be maintainable even if the accused wishes to prefer
the subsequent
ubsequent appeal before the High Court on any changed
circumstances. However, since tthe party cannot be left remediless in the
event of any changed circumstances, the aggrieved party has liberty to
prefer fresh application for bail before the Special Court
Court.. If such an
application is preferred, the same may be considered by the Special
Court on demonstrating any change in circumstances and needless to
mention that the Special Court or Exclusive Special Court may pass an
..18..
NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC-JBP:7868
order on its own without being influenced
influen by the order of dismissal of
the appeal by the High Court or the earlier order of grant or refusal of
bail by the Special Court.
20. In this regard, we find that the view taken by the High Court of
Chhattisgarh in Dushyant Pandey (supra) is more appropriate. Having
thus opined, we find no reason to differ with the view taken by the High
Court of Chhattisgarh in the said case and the judgments in the cases
case of
Atul Rajput, Ketan and Neeraj Verma (supra). Accordingly we hold that
the finding of the learned Single Judge in its order dated 05.12.2017
passed in the case of Ramu @ Ramlal (supra) that the repeat appeal
under Section 14A(2) of the Special Act after rejection of appeal would
be maintainable against the order of grant or refusal of bail, is not the
correct enunciation of law. The same is hereby overruled.
21. The question referred to us is thus answered accordingly.
22. The matter be listed before the appropriate Bench for
for decision in
accordance with opinion rendered by us.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
C.
