SC & ST Atrocities Act; Raghav Nath Jha Vs. State of Bihar [Patna High Court, 27-10-2016]

Contents

Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 – Section 14-A – Code of Criminal Procedure, 1973 – Section 438 – Pre- arrest bail – The accused will have no right to directly file an application under Section 438 of the Code before High Court for grant of pre-arrest bail.

Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 – Section 14-A – Code of Criminal Procedure, 1973 – Section 438 – Pre- arrest bail – Unless there is an order of the Special Court or the Exclusive Special Court granting or refusing bail, the accused will have no right to file an appeal before the High Court for grant of pre-arrest bail.

Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 – Section 14-A – Code of Criminal Procedure, 1973 – Section 438 – Pre- arrest bail – Existence of an order of the Special Court or the Exclusive Special Court is a sine qua non for approaching the High Court in appeal. This is because the provisions, prescribed under Section 14-A of the Act, have an overriding effect over the provisions of the Code in view of the provisions prescribed under Section 4(2) of the Code.

Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 – Section 14-A – Code of Criminal Procedure, 1973 – Section 438 – Pre- arrest bail – In order to obtain an order under Section 438 of the Code, an accused is required to, first, apply to the Special Court or the Exclusive Special Court, as the case may be, and he can, thereafter, prefer an appeal against an order refusing bail if his application for is rejected by such Court.

Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 – Section 14-A – Code of Criminal Procedure, 1973 – Section 438 – Pre- arrest bail – Even the State can prefer an appeal if the Special Court or the Exclusive Special Court, as the case may be, allows an application for pre- arrest bail made under Section 438 of the Code, to such an accused person.

# IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

Date: 27-10-2016

Criminal Miscellaneous No.25276 of 2016

Arising Out of PS.Case No. -312 Year- 2016 Thana -BHABHUA District- BHABHUA (KAIMUR)

1. Bisheshwar Mishra 2. Hanuman Mishra @ Sidheshwar Nath Mishra Both sons of Narayani Mishra, resident of village – Barhuli, P.S. – Sonhan, Dist. – Kaimur….. …. Petitioners Versus The State of Bihar….. …. Opposite Party

With Criminal Miscellaneous No.31747 of 2016 Arising Out of PS.Case No. -4 Year- 2016 Thana -DHIBRA District- AURANGABAD 1. Sunaina Devi, wife of Upendra Singh. 2. Upendra Singh, Son of Bhagwati Singh. Both are Resident of Village:- Tetrain, P.S.:- Dhibra, District:- Aurangabad (Bihar). …. …. Petitioners Versus The State of Bihar. …. …. Opposite Party

With Criminal Miscellaneous No.33782 of 2016 Arising Out of PS.Case No. -35 Year- 2016 Thana -ALIPUR District- GAYA  1. Nawal Sharma @ Nawal Singh S/o late Tapeshwar Sharma 2. Jairam Sharma S/o Prasidh Sharma Both residents of Village- Salempur, P.S Alipur Distt Gaya. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.33811 of 2016 Arising Out of PS.Case No. -59 Year- 2015 Thana -SIMRA District- WESTCHAMPARAN(BETTIAH)  1. Shravan Sharma son of Shahdev Sharma 2. Bindhwashini Sharma son of Shahdeo Sharma 3. Sanjay Sharma son of Shravan Sharma 4. Manoj Sharma son of Sharvan Sharma All resident of Village- Bairatpur, P.S.- Semra, District- West Champaran, Bihar. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.33861 of 2016 Arising Out of PS.Case No. -26 Year- 2012 Thana -Purnia SC/ST District- PURNIA  Raghav Nath Jha S/o Gopi Nath Jha, resident of Rai Hari Mohan Thakur Lane Barari , P.S. Barari, District Bhagalpur. …. …. Petitioner Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.33958 of 2016 Arising Out of PS.Case No. -35 Year- 2013 Thana -RIGA District- SITAMARHI  1. Pawan Kumar 2. Gorakh Sah 3. Makai Sah All sons of Sri Kishun Sah, All residents of village- Bulakipur, Police Station- Riga, District- Sitamarhi. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.34026 of 2016 Arising Out of PS.Case No. -28 Year- 2016 Thana -SC/ST P.S. District- MUZAFFARPUR  1. Suresh Singh S/o Late Kamal Singh, 2. Priyanka Kumari @ Dimple Kumari, 3. Sweta Kumari Both daughters of Suresh Singh 4. Dhananjay Kumar 5. Mritunjay Kumar, Both sons of Suresh Singh 6. Munna Singh S/o Late Kamal Singh 7. Deepak Kumar, 8. Jyoti Kumar Both sons of Munna Singh All resident of Rewa Bangala, P.S.- Sraiya, District- Muzaffarpur. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.34027 of 2016 Arising Out of PS.Case No. -35 Year- 2016 Thana -SC/ST Sitamarhi District- SITAMARHI  Raghunath Rai son of Ramashish Rai, resident of Village- Chingi Takia, P.S.- Bajpatti, District- Sitamarhi. …. …. Petitioner Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.34707 of 2016 Arising Out of PS.Case No. -79 Year- 2016 Thana -DIGHA District- PATNA  Acharya Bhushan Prasad Son of Rajnandan Prasad, Resident of Digha (behind Polson), Police Station- Digha in the district of Patna. …. …. Petitioner Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.34767 of 2016 Arising Out of PS.Case No. -42 Year- 2015 Thana -SC/ST District- PURNIA  1. Pappu Sah s/o Kuldeep Sah 2. Reena Devi W/o Pappu Sah Both are at present Resident of Village- Police Line Jail Road, Behind Kutti Mill, P.S.- K. Hat, District- Purnea and permanent resident of Village- Asherganj, P.S.- Asharganj, District- Munger. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.34785 of 2016 Arising Out of PS.Case No. -1 Year- 2016 Thana -SC/ST District- SAHARSA  1. Bijen Yadav S/o Hiralal Yadav 2. Bhaiyalal Yadav @ Bhailal Yadav S/o Hiralal Yadav 3. Pramod Yadav S/o Chandeshwari Yadav 4. Chandeshwari Yadav S/o Late Sunar Yadav 5. Sanjay Yadav S/o Bindo Yadav 6. Rupesh Kumar S/o Sanjay Yadav, All are resident of Village- Belwara, P.S.- Bakhtiyarpur, District- Saharsa. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.36760 of 2016 Arising Out of PS.Case No. -37 Year- 2013 Thana -SC/ST P.S. District- SARAN  1. Rama Shankar Singh S/o Late Chandradeep Singh, resident of Village- Chitrauli, P.S- Khaira, District- Saran at Chapra. 2. Bhuneshwar Prasad Yadav S/o Late Ramreet Rai, @ Ramreet Prasad Yadav resident of Village- Savri Kashi Tiwari Tola, P.S.- Jalalpur, District- Saran at Chapra. 3. Sanjesh Kumar Singh S/o Ramesh Kumar Singh resident of Village- Noornagar Kanhi P.S.- Jalalpur, District- Saran at Chapra. 4. Pappu Singh S/o Late Mahesh Prasad Singh @ Mahesh Singh resident of Village- Umanagar, Near West of Bazar Samiti, P.S- Chapra Muffasil, District- Saran at Chapra. 5. Mrigendra Kumar Sharma S/o Late Jitendra Narain Sharma, resident of Mohalla- Sadhnapuri, P.S.- Chapra Town, District- Saran at Chapra, Presently posted as Principal, Shankar Dayal Singh Inter College, Jalalpur, P.S.- Jalalpur, District- Saran at Chapra. …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.37390 of 2016 Arising Out of PS.Case No. -47 Year- 2016 Thana -CHIRAIYA District- EASTCHAMPARAN(MOTIHARI)  1. Nawal Rai S/o Late Bhajan Rai 2. Bigani Devi W/o Late Bhajan Rai 3. Phul Kumari @ Phul Kumari Devi W/o Kishori Rai 4. Manju Devi W/o Nawal Rai 5. Kishori Rai S/o Late Bhajan Rai All Resident of village- Mohadipur, P.S.- Chiraiya, District- East Champaran …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

With Criminal Miscellaneous No.37457 of 2016 Arising Out of PS.Case No. -171 Year- 2016 Thana -MAKHDUMPUR District- JEHANABAD  1. Premjeet Kumar @ Premjit Kumar Son of Sachchitanand @ Sachchitanand Prasad 2. Kundan Kumar Son of Gauri Mahto 3. Anil Kumar Son of Raju Mahto 4. Gauri Mahto Son of Ram Briksh Mahto All Residents of village – Saraiya, P.S. Makhdumpur, District – Jehanabad …. …. Petitioners Versus The State of Bihar …. …. Opposite Party

Appearance : (In Cr.Misc. No.25276 of 2016) For the Petitioner/s : Mr. Alok Kumar Choudhary, Advocate Mr. Kulanand Jha, Advocate Mr. Nagendra Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.31747 of 2016) For the Petitioner/s : Mr. Mrigendra Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP Mr. Binay Krishna, Spl. PP (In Cr.Misc. No.33782 of 2016) For the Petitioner/s : Mr. Arvind Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.33811 of 2016) For the Petitioner/s : Mr. Suresh Prasad Sharma, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.33861 of 2016) For the Petitioner/s : Mr. Davendra Kumar Pandey, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.33958 of 2016) For the Petitioner/s : Mr. Sunil Prasad Singh, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.34026 of 2016) For the Petitioner/s : Mr. Devendra Narayan Singh, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.34027 of 2016) For the Petitioner/s : Mr. Hans Lal Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.34707 of 2016) For the Petitioner/s : Mr. Vijay Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.34767 of 2016) For the Petitioner/s : Mr. Dhananjaya Nath Tiwari, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.34785 of 2016) For the Petitioner/s : Md. Nafisuzzoha, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.36760 of 2016) For the Petitioner/s : Mr. Dewendra Narayan Sing, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.37390 of 2016) For the Petitioner/s : Mr. Ajay Kumar Singh, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP (In Cr.Misc. No.37457 of 2016) For the Petitioner/s : Mr. Umesh Kumar, Advocate For the Opposite Party/s : Mr. Sadanand Paswan, Spl. PP

JUDGMENT

HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

These petitions have been filed by different persons, who are accused in different cases, for grant of pre-arrest bail in terms of

# Section 438 of the Code of Criminal Procedure, 1973

(for short „Code‟). First Information Reports were instituted against them at different police stations of the State of Bihar for having allegedly committed offences punishable under various provisions of

# The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short „the Act‟) and the

# Indian Penal Code, 1860

(for short „IPC‟). The applications of accused persons, in these cases filed under Section 438 of the Code, have already been rejected by different Courts of Sessions of the different districts of the State of Bihar.

2. In course of argument, in Cr. Misc. No. 25276 of 2016 (Bisheshwar Mishra and Anr. vs. State of Bihar), two conflicting orders passed by a learned single Judge, in two different cases, came to the notice of the learned single Judge.

3. In Cr. Misc. No. 24733 of 2016 (Dinesh Kumar and Ors. vs. The State of Bihar), the learned single Judge, taking note of insertion of new

# Section 14-A in the Act, vide The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015

(for short „the Amendment Act, 2015‟) dismissed the application of the petitioner filed, under Section 438 of the Code, for grant of pre-arrest bail holding the same to be not maintainable and granted liberty to the petitioner to file an appropriate appeal in terms of Section 14-A of the Amendment Act, 2015.

4. In Cr. Misc. No.24836 of 2016 (Munna Shaw @ Munna Saw vs. The State of Bihar) and analogous cases filed under Section 438 of the Code, after rejection of the pre-arrest bail application of the accused persons from the Court of Sessions Judge, the learned Single held that there would be no question of maintaining an appeal under the provisions of Section 14-A of the Amendment Act, 2015, against an order passed by the Court of Session granting or refusing pre-arrest bail under Section 438 of the Code in a case arising out of any of the offences under the Act. The learned single Judge further held that an application, under Section 438 of the Code, would not be ousted by virtue of the bar, under Section 18 of the Act, with respect to a person, who is an accused in a case registered for offence(s) punishable under various provisions of the Act if such a person is in a position to satisfy the court that even on the basis of allegations made in the First Information Report or the Complaint petition, no case of commission of offence, under the provisions of Section 3(1) of the Act, is made out against him.

5. In view of the conflicting views of the learned single Judge in Cr. Misc. No. 24733 of 2016 (supra) and Cr. Misc. No.24836 of 2016 (supra), the learned single Judge, vide order, dated 09.08.2016, passed in Cr. Misc. No. 25276 of 2016, referred the matter to be decided by a Division Bench, while hearing an application under Section 438 of the Code, in respect of two accused persons against whom Bhabhua P. S. Case No. 312 of 2016, was registered for certain offences of the IPC as also under the provisions of the Act and directed the Registry to place the case before Hon‟ble the Chief Justice for the needful.

6. The other 13 petitions have been referred to the Division Bench by different orders passed by different learned single Judges inasmuch as it was pointed out, in the course of argument, by the learned Advocates, appearing on behalf of the petitioners, that the question, whether an appeal would lie before this Court after rejection of the application filed under Section 438 of the Code for grant of pre-arrest bail by the Court of Sessions Judge, has been referred to the Division Bench for consideration, vide order, dated 09.08.2016, passed in Cr. Misc. No. 25276 of 2016.

7. Consequently, this Bench has been constituted to hear and decide the references made by the learned single Judges.

8. On a careful scrutiny of these applications, we find that orders rejecting the applications for grant of pre-arrest bail, in Cr. Misc. Nos. 25276 of 2016, 33782 of 2016, 33861 of 2016, 34707 of 2016, 34785 of 2016, 34760 of 2016, 37390 of 2016 and 37457 of 2016, have been passed either by the Special Court or by the Exclusive Special Court constituted under the Act; whereas in Cr. Misc. Nos. 31747 of 2016, 33811 of 2016, 33958 of 2016, 34026 of 2016, 34027 of 2016 and 34767 of 2016, the orders, rejecting the prayer for pre-arrest bail, have been passed by the Session Courts, which have neither been specified nor declared as Special Court or Exclusive Special Court to deal with any matter arising out of the Act.

9. In the background of the facts stated above, though the learned single Judges have framed no issue, while referring the matter to the Division Bench, following questions would be required to be determined in these cases :-

(i) Whether a person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of pre-arrest bail provided in Section 438 of the Code?

(ii) Whether a Court of Session or the High Court, while dealing with an application for grant of pre-arrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not?

(iii) Whether an application, under Section 438 of the Code, for grant of pre-arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him ?

(iv) Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act ?

(v) Whether consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act ?

(vi) Whether an accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court ?

10. In order to find out the answers to the questions to be determined in these cases, it would be necessary to set out Section 438 (1) of the Code and Section 18 of the Act.

11. Section 438 (1) of the Code provides, inter alia, that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to a Court of Session for a direction that in the event of such arrest, he shall be released on bail. Section 438 of the Code reads as under :

# 438. Direction for grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.”

12. However, Section 18 of the Act disentitles a person, accused of committing an offence under the Act, from the benefit of pre-arrest bail.

13. Section 18 of the Code reads as under :

# 18. Section 438 of the Code not to apply committing an offence under the Act

Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”

(emphasis mine)

14. A plain reading of Section 18 of the Act would make it evident that it takes away the statutory right conferred upon persons to be released on bail in the event of their arrest, who are alleged to have committed an offence under the Act. To say it differently, it would also mean from the perusal of text of Section 18 of the Act that a Court of Session or the High Court, as the case may be, would have no power to direct release of an accused on bail in the event of his arrest if he is facing accusation of having committed an offence under the Act.

15. While considering these applications, it needs to be noted that the Constitutional validity of Section 18 of the Act, denying the right to pre-arrest bail to an accused of committing offence against the members of the Scheduled Castes and the Scheduled Tribes, was challenged before the Rajasthan High Court in

# Jai Singh and Anr. v. Union of India and Ors., AIR 1993 Raj. 177

It was contended that the provisions prescribed, under Section 18 of the Act hits Article 21 of the Constitution of India, which guarantees the procedure to be followed in a trial of a criminal case to be fair, just and equal. However, the contention of the petitioner failed to convince the Bench of the Rajasthan High Court. The Bench held that the enactment was within the legislative spirit of Article 17 of the Constitution of India. It not only abolishes untouchability, but also guarantees social justice and dignity to the members of the Scheduled Castes and the Scheduled Tribes, who were, for centuries, deprived of social equality and forced to lead undignified life.

16. We may, now, refer to the decision in the matter of

# Dr. Ram Krishna Balothia v. Union of India and Ors., AIR 1994 MP 143

wherein the following contentions were raised by the petitioners challenging the constitutional validity of the whole Act :

(i) that the entire Act is based on caste discrimination and, therefore, infringes Article 15(1) of the Constitution of India and it is not saved under Article 15(4) of the Constitution;

(ii) that Section 3 of the Act provides for punishment for offences of atrocities against persons belonging to the members of Scheduled Castes and Scheduled Tribes by any person other than a member of Scheduled Castes and Scheduled Tribes, which cannot be said to be a provision for advancement of the Scheduled Castes and Tribes;

(iii) that Section 8(a) of the Act is vague, unclear and preposterous inasmuch as it tries to create a premature criminal liability in an ambiguous manner; and,

(iv) that Section 18 of the Act is violative of Articles 14 and 21 of the Constitution of India.

17. After hearing the parties and having considered the decision of the Full-Bench of the Rajasthan High Court, in the matter of Jai Singh and Anr. (supra), the Division-Bench of the Madhya Pradesh High Court upheld the other provisions of the Act, as constitutionally valid, except Section 18 of the Act. The Bench held that Section 18 of the Act does not conform to the norms of justice and fair play and prescribed a procedure, which is impermissible under the Constitution and is liable to be struck down. Accordingly, the Bench struck down Section 18 of the Act as violative of Articles 14 and 21 of the Constitution of India.

18. However, on an appeal, preferred by the State of M. P. against the decision of Madhya Pradesh High Court, vide

# State of M. P. and Anr. v. Ram Kishna Balothia and Anr., AIR 1995 SC 1198

the judgment of the Madhya Pradesh High Court was reversed by the Supreme Court. The Supreme Court held that exclusion of Section 438 of the Code in connection with offences under the Act needs to be reviewed in the backdrop of historical background relating to the practice of “Untouchability” and the social attitudes, which lead to the commission of such offences against members of Scheduled Castes and Scheduled Tribes. There is justification for an apprehension that if the benefit of anticipatory bail is made available to such persons, who are alleged to have committed such offences, there is every likelihood of their misusing their liberty, while on anticipatory bail to terrorise their victims and prevent a proper investigation. The Court held that Section 18 cannot be considered, in any manner, violative of Article 21 of the Constitution of India.

19. After the verdict of the Supreme Court, in State of M. P. and Anr. v. Ram Kishna Balothia and Anr. (supra), upholding constitutional validity of Section 18 of the Act, a Full- Bench of the Rajasthan High Court was called upon, once again, to examine, in

# Virendra Singh v. State of Rajasthan, reported in 2000 Crl. L.J. 2899

whether a High Court, while dealing with an application for pre-arrest bail, can scrutinize and examine the materials to see if a prima facie case is made out constituting the offence under the Act or whether it would be justified in rejecting the application merely because the case has been registered under the said Act or it is registered along with some other penal provisions of the IPC. The Bench, being conscious of the fact that Section 18 of the Act, explicitly bars the grant of pre-arrest bail to a person if he is an accused of committing an offence under the Act, sought through general notice circulated to the members of the Bar to address the Court on the question in order to determine whether an application for pre-arrest bail could be rejected merely because a case has been registered under Section 3 of the Act or the Court would be justified in examining as to whether a person is at all fit to be treated as an accused of an offence under the Act, or the extent of judicial competence, if any, to examine the relevant materials in order to determine whether an accused can prima facie be treated as an accused under the Act.

20. In response to the said notice, two sets of arguments and opinions were advanced before the Court. One set of arguments was that although the Courts would not be justified in entering into roving inquiry of the allegations levelled against a person accused of an offence, under Section 3 of the Act, by looking into the police case-diary, charge-sheet or other materials, yet the Court ought to peruse, at least, the First Information Report or the Complaint in order to determine whether the accused persons can at all be said to have committed an offence under the Act before rejecting his application for pre-arrest bail merely on the ground of its maintainability. The submission was that the provisions should not be considered in the manner as to create a complete bar even to entertain an application, under Section 438 of the Code, without application of mind on the facts as to whether accusations made against any person constitute any offence under the Act or not. Another sets of arguments was that Section 18 of the Act creates a complete bar and the Court cannot even entertain an application for grant of pre-arrest bail under Section 438 of the Code, once the case is registered by the police under the Act. It was argued that the Court should have no occasion to peruse even the First Information Report or Complaint to find out whether any offence and, if so, what offence(s), under the Act, has been constituted or not.

21. After evaluating the arguments and counter arguments, the Full-Bench of the Rajasthan High Court held that the Courts, while dealing with an application filed, under Section 438 of the Code, would be justified in merely examining as to whether there is at all an accusation against a person for registering a case under Section 3 of the Act and once the ingredients of the offence are available in the First Information Report or the Complaint, the Courts would not be justified in entering into a further inquiry by summoning case-diary or any other material so as to determine whether allegations are true or false or whether there is any preponderance of probability of commission of such offence; but if the allegations, in the First Information Report or the Complaint, even if they are taken at their face value and are accepted in their entirety, do not constitute the offence alleged, under the Act, it is only in those miniscule number of cases that the Courts would be justified in entertaining the application, not because it is maintainable, but because the Act would be inapplicable to the facts and circumstances of that particular case. The Bench held that the application for pre-arrest bail can be entertained only on the inapplicability of the Act due to the facts of the case, which will have to be gathered only from the First Information Report and not beyond that because once it is gathered from the First Information Report that the applicant is an accused of committing an offence under Section 3 of the Act, the bar of Section 18 would instantly operate against the person, who had been made accused of the offence under the Act. It further held that if, in the First Information Report itself, the ingredients of the offence, as laid down under Section 3 of the Act, are found to be missing, the bar, created by Section 18, would not be allowed to operate against a person and only in that event, his application for pre-arrest bail would be dealt with by the concerned Court to determine whether the Act can be said to be rightly applicable against the accused and not to enter into the matter so as to determine whether the allegation levelled against the accused, in the First Information Report, are true or false and there would be no justification to enter into the matter further in order to examine the allegation levelled against the accused even prima facie correct or incorrect.

22. In

# Ramesh Prasad Bhanja and Ors. v. State of Orissa, reported in 1996 Crl.L.J. 2743

the learned single Judge of Orissa High Court, while considering the provisions of Section 18 of the Act, was of the view that the expression “accusation of having committed an offence under the Act” does not mean that mere registration of the case under the Act would ipso facto attract the prohibition contained in Section 18. The learned single Judge observed that the opinion of the police, regarding the nature of the alleged offence, is neither final nor conclusive. The Court further observed :

“Merely because a case is mechanically registered under the Act, the provision of Section 438 of the Code cannot be said to be inapplicable in each and every case. If the allegations make out a prima facie case under Section 3 or for that matter Sections 4 and 5 of the Act, the jurisdiction to entertain an application under Section 438 is definitely ousted. Where however, the allegations do not make out any prima facie case punishable under any provision of the Act, the bar under Section 18 is inapplicable and the provision of Section 438 of the Code can be availed of.”

23. Considering the provisions of the Act and, after noticing the decision of the Supreme Court in State of M. P. and Anr. vs. Ram Kishna Balothia and Anr. (supra), a learned single Judge of the Delhi High Court, in the case of

# Mukesh Kumar Saini and Ors. v. State (Delhi Administration), reported in 2001 Crl.L.J. 4587

observed as under :

“6. There cannot be any dispute about the proposition of law that anticipatory bail cannot be availed by the persons, who have committed the offences under the SC/ST Act. However, merely because of Section of the SC/ST Act mentioned in the FIR, by itself cannot be a ground to decline the pre-arrest bail. Judicial scrutiny of the documents, is permissible, to evaluate whether the material relied upon by the prosecution reveals existence of basic ingredients of the offence or not. The Court can shift the material for this limited purpose….”

24. Recently, in

# Vilas Pandurang Pawar and Anr. v. State of Maharashtra and Ors., AIR 2012 SC 3316

the Supreme Court had an occasion to deal with an application for grant of pre-arrest bail under Section 438 of the Code in a case, wherein the accused was charged with various offences under the IPC along with the provisions of the Act. The Supreme Court, after hearing the parties, held, in paragraph Nos. 8 and 9, as under :-

“8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

(9) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Specific Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provisions in the Special Act cannot be brushed aside by elaborate discussion on the evidence.”

(emphasis mine)

25. It is clear from a close reading of the decision of the Supreme Court, in Vilas Pandurang Pawar (supra), that though Section 18 of the Act creates a bar in invoking Section 438 of the Code, a duty is cast on the Court to verify the averments in the Complaint/First Information Report to find out whether an offence, under Section 3 of the Act has been prima facie made out against the accused seeking pre-arrest bail or not. In case, a prima facie case, under the Act, is made out against the accused, the bar, under Section 18 of the Act, would, immediately, come into play.

26. On a careful consideration of the provisions prescribed under Section 18 of the Act, the law laid down by the Supreme Court, in State of M. P. v. Ram Kishna Balothia (supra) and Vilas Pandurang Pawar (supra) and by the Full-Bench of the Rajasthan High Court, in Virendra Singh (supra), and the other decisions of the different High Courts noticed hereinabove the answer to the first three questions framed by us becomes abundantly clear.

27. In view of specific embargo of Section 18 of the Act and the binding precedents of the Supreme Court noticed above, we hold that pre-arrest bail, under Section 438 of the Code, is not available to persons committing offences under the Act. We further hold that Section 18 of the Act totally bars a court from either making a judicial scrutiny of the case or granting pre-arrest bail to the accused of committing offence under the provisions of the Act. However, from the law laid down by the Supreme Court in Vilas Pandurang Pawar (supra), it becomes clear that notwithstanding the embargo created by Section 18 of the Act against grant of pre-arrest bail, a duty is cast upon the court, hearing an application under Section 438 of the Code, to determine, on the basis of the statements, made in the Complaint/First Information Report, if the ingredients of any offence, under the Act, are made out or not. If the ingredients of the offence are attracted against a person seeking pre-arrest bail, the embargo of Section 18 of the Act would, immediately, come into play against such person; but merely because a criminal case is instituted against a person under the Act without there being any allegation against him of having committed an offence under the Act, the Court can very well entertain an application under Section 438 of the Code and under such circumstance, the embargo, created under Section 18 of the Act, would not come into play inasmuch as the legislative intent is to exclude the power of the Court to grant pre-arrest bail to a person apprehending arrest, who is alleged to have committed an offence under the Act and not a person, whose name finds place in the column of accused either in Complaint or in the First Information Report without there being any accusation against him of having committed an offence under the Act.

28. We reiterate that while considering the application under Section 438 of the Code, it is not open to the Court to enter into roving inquiry of the veracity of allegations levelled under the Act. It can only look to the First Information Report or the Complaint just in order to prima facie determine whether the ingredients of any offence under the Act at all can be said to have been attracted against the person seeking pre- arrest bail.

29. Having answered the first three questions, in order to find out an effective answer to the remaining questions, one will have to look to the object behind the Act. The Legislature had enacted the Act with a view to prevent commission of offence of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Being concerned with the continuing allegations of atrocities despite the deterrent provision made in the Act against the members of the Scheduled Castes and the Scheduled Tribes, the Parliament made certain amendments in the Act, vide Amendment Act, 2015, which came into force, with effect from 26.01.2016, vide Gazette Notification, dated 18th January, 2016.

30. The amendments, brought under the existing Act, broadly covered five issues, namely, (1) Amendments to the existing Sections and expanding the scope of presumption; (2) Institutional strengthening; (3) Appeals (a new Section); (4) Establishing rights of victims and witnesses (a new chapter); and, (5) Strengthening the preventive measures.

31. The objective of the amendments, so introduced in the existing Act, is to deliver the members of the Scheduled Castes and the Scheduled Tribes greater justice as well as to provide for enhanced deterrent to the offenders. The Amendment Act, 2015, allowed establishment of Exclusive Special Courts and appointment of Special Public Prosecutor for trial of offences, under the Act, to enable speedy and expeditious disposal of cases.

32. The term “Special Court”, defined under Section 2(d), and the “Exclusive Special Court”, defined under Section 2(bd) of the Act, are as under : ―

“2(d) ― “Special Court” means a Court of Session specified as a Special Court in section 14.

2(bd) ― “Exclusive Special Court”

means the Exclusive Special Court established under sub-section (1) of Section 14 exclusively to try the offences under this Act”

33. Having considered the object behind the Amendment Act, 2015, it would be relevant to take note of Section 14 of the Act prior to its amendment, which read as under : ―

“14. 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, specify for each district a Court of Session to be a Special Court to try the offences under this Act.”

(emphasis mine)

34. Section 14 of the Act has been substituted by the Amendment Act, 2015. The substituted provisions of Section 14 read as under : ―

“14. Special Court and Exclusive Special 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 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 to 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-to-day until all the witnesses in attendance 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:

Provided that when the trial relates to an offence under this 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”

(emphasis mine)

35. From a reading of the proviso (2) of the substituted Section 14(1) of the Act, it would be apparent that the Special Courts and the Exclusive Special Courts, established under the Act, have been vested with the power to directly take cognizance of the offences punishable under the Act.

36. At this juncture, I think it appropriate to refer to Section 193 of the Code, which reads as under :

# 193. Cognizance of offences by Courts of Session

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

(emphasis mine)

37. It would be evident from a reading of Section 193 of the Code that the Investigating Officer is required to file his report on completion of investigation under Section 173 of the Code in the Court of Magistrate only. Similarly, even a Complaint, under Section 200 of the Code, is required to be filed in the Court of Magistrate. Under ordinary circumstances, a Court of Session would be denuded of the power to directly take cognizance of the offence unless the case is committed to it under Section 209 of the Code by a Court of Magistrate. In other words, no Court of Session can take cognizance of any offence, as a Court of original jurisdiction, unless the case has been committed to it by a Magistrate under the Code. However, there is an exception to the general rule under Section 193 of the Code, which permits the Court of Session to take cognizance of an offence, as a court of original jurisdiction, if it is expressly provided either by the Code or by any other law for the time being in force.

38. Prior to coming into force of the Amendment Act, 2015, different High Courts expressed conflicting views in respect of the issue, whether Special Court, constituted, under Section 14 of the Act, can take cognizance of the offences under the Act directly as a Court of original jurisdiction without the case being committed to it by the Court of Magistrate or can it take cognizance of the offences under the Act only on committal by a Court of Magistrate following the procedure stipulated under Section 209 of the Code.

39. A Division-Bench of the Kerala High Court, in

# Re : Director General of Prosecution, reported in 1993 Crl.L.J. 760

a Full-Bench of the same High Court in

# Hareendran v. Sarada, reported in 1995(1) KLT 23

a Full-Bench of the Rajasthan High Court, in

# Bhura Lal and Ors. v. State and Ors., reported in 1999 Crl.L.J. 3552

and a Full-Bench of the Madhya Pradesh High Court, in

# Anand Swaroop Tiwari v. Ram Ratan Jatav, reported in 1996 MP LJ 141

took a view that a Court of Magistrate, designated as Special Court under the Act, is a Court of original jurisdiction and it has all the powers provided under Section 190 of the Code. On other hand, a Division-Bench of Andhra Pradesh High Court, in

# Referring Officer v. Police Station, Khammam, reported in 1999 Crl.L.J. 4173

took a view that the Special Court, constituted under the Act, cannot take cognizance of the offence under the Act directly. The Bench held that the Court of Session, being armed with powers of Special Court by virtue of notification issued by the State Government under Section 14 of the Act, does not loose its character as a Court of Session. Several other High Courts also took the same view as that of Andhra Pradesh High Court in Referring Officer vs. Police Station, Khammam (supra).

40. However, the Supreme Court, in

# Gangula Ashok v. State of Andhra Pradesh, AIR 2000 SC 740

after taking note of Section 6 of the Code and Section 14 of the Act, resolved the conflicting views expressed by different High Courts in different decisions. The Supreme Court, referring to Section 14 of the Act and Section 193 of the Code, held that the intendment of the legislature is to treat the Special Court, under the Act, to be a Court of Session even after specifying it as a Special Court and it would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The Court further held that the trial, in such a Court, can be conducted only in the manner provided under Chapter XXXIII of the Code, which contains fascicle of provisions for „trial before a Court of Session‟. It further held that Section 14 of the Act prohibits Special Court from taking cognizance of offences under the Act as Court of original jurisdiction unless the case has been committed to it by the Court of Magistrate, who, by virtue of Section 190 of the Code, is obligated to take cognizance of the offence. Referring to the Constitution Bench decisions in

# A.R. Antulay vs. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500

and in

# Directorate of Enforcement v. Deepak Mahajan, reported in (1994) 3 SCC 440

the Supreme Court held, in paragraph 16, as under :-

“16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straightway be laid before the Special Court under the Act.”

41. In view of the decision of the Supreme Court, in Gangula Ashok v. State of Andhra Pradesh (supra), there remains no doubt that prior to coming into force of the Amendment Act, 2015, a Court, designated as Special Court, under Section 14 of the Act, was essentially a Court of Session.

42. In the backdrop of the second proviso to the substituted Section 14(1) of the Act, which specifically confers power upon the Special Court and the Exclusive Special Court to take cognizance of the offences under the Act directly, it would be evident that an exception to the general rule under Section 193 of the Code has been created.

43. There is no dispute with regard to fact that the Act is a Special Act and the second proviso to Section 14(1) of the Act, positively and unequivocally, provides that the Special Court, which is essentially a Court of Session, shall have power to directly take cognizance of the offence. Hence, the interdict of Section 193 of the Code has been removed by making specific provision in the Special Act.

44. This issue can be examined from a different angle also. Part-II of the first schedule of the Code prescribes that only a Court of Session is authorized to try the offence under laws other than IPC that are punishable with either death, imprisonment for life or imprisonment for a term more than 7 years; whereas a Magistrate of 1st class is empowered to try an offence if it is punishable with imprisonment for a term more than three years, but less than 7 years and an offence punishable with imprisonment for a term of less than three years or with fine only may be tried by any Magistrate. The offences, under Section 3(1) of the Act, are punishable with a maximum sentence of 5 years with fine; but, certain offences under sub-section (2) of Section 3 prescribe punishment for death and certain offences prescribe punishment of imprisonment for life. In view of Part-II of the first schedule of the Code, such offences can be tried only by a Court of Session. We have already seen that the offences, under the Act, are to be tried either by a Special Court or by the Exclusive Special Court constituted under the Act. If the offences alleged against the accused attract ingredients of the offences under Section 3 of the Act and also ingredients of offence(s) under the IPC, a Special Court or the Exclusive Special Court, as the case may be, would be competent to take cognizance and hold trial for the offences under the two different provisions in the same proceeding by virtue of the provisions prescribed under Section 220 of the Code.

45. In view of the legislative changes, as noticed hereinabove, it is of salience to note that in view of substituted Section 14 of the Act, the police is required to transmit the FIR, after institution of the case to Special Court or Exclusive Special Court, as a Court of original jurisdiction, and for the same reason, the charge-sheet or a complaint is also required to be filed before Special Court or Exclusive Special Court for the offences under the Act. It would be further evident that from the date of coming into force of the Amendment Act, 2015, the Court of Magistrate, being not a Special Court or Exclusive Special Court within the meaning of Section 14 of the Act, shall not have any jurisdiction to entertain any application and take cognizance of the offence under the Act. The requirement of the committal proceeding, under Section 209 of the Code, has also been done away with. The object behind doing so is to enable speedy and expeditious disposal of the cases.

46. For the reasons aforestated, in so far as an application for bail under the provisions of Chapter XXXIII of the Code can, now, be filed only in the Special Court or Exclusive Special Court, as the case may be, constituted under the Act. This is also, because a person aggrieved by such order may file an appeal before the High Court under Section 14-A(2) of the Act both on law and facts, which provision, we will discuss in detail later on. If the order granting or refusing bail is not passed by a designated Special Court or Exclusive Special Court, no appeal would be maintainable and the party aggrieved by the order would remain remediless.

47. For the reasons aforestated, we determine the fourth issue by holding that an application, under Section 438 of the Code for the limited purpose of satisfying the Court that even on the basis of allegation contained in First Information Report or Complaint petition, no ingredients of commission of any offence under the provisions of the Act, are attracted, has to be filed only before an appropriate Court.

48. At this stage, in order to determine the remaining two issues, one has to keep in mind Section 14-A of the Act, which has been inserted after Section 14 of the Act by Amendment Act, 2015. It reads as under :

# 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.”

(emphasis mine)

49. The legal proposition that a Special Act (the Act in the present case) shall override the provisions of the General Act (Code in the present case) could also be of some relevance for determination of the issues left to be answered.

50. In that view of the matter, it would be profitable to refer to Sections 4 and 5 of the Code, which read as under :

# Section 4. Trial of offences under the Indian Penal Code and other laws

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Section 5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

(emphasis mine)

51. A conjoint effect of Section 4(2) read with Section 5 of the Code is that all offences, whether under the IPC or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, in which case an enactment will prevail over those of Code. The jurisdiction, under Section 4 of the Code, is comprehensive and to the extent that till no valid machinery is set up under any Act for investigation or trial, the jurisdiction of the machinery, provided under the Code, cannot be said to have been excluded.

52. From a close reading of the newly inserted Section 14-A of the Act, it would be evident that sub-section (1) of Section 14-A of the Act provides that no appeal would lie against any interlocutory order passed by Special Court or Exclusive Special Court. It is well settled that an order granting or refusing bail is an interlocutory order inasmuch as it is not a judgment or final order, which terminates a criminal proceeding pending before the Court. However, an exception has been carved in clause (2) of Section 14-A, which provides an appeal against an interlocutory order passed by the Special Court or the Exclusive Special Court either granting or refusing bail under the Act. Thus, it can be said that sub-section (2) of Section 14-A is based on the doctrine of reasonable classification and it is to be read as an exception to the general principle.

53. Though other interlocutory orders passed by the Special Court or the Exclusive Special Court, as the case may be, are not appealable at all in view of the provisions prescribed under Section 14-A(1) of the Amendment Act, 2015, the order granting or refusing bail is an order against which an appeal is permitted under newly inserted Section 14-A(2) of the Act. This is so, because as provided under sub-section (3) of Section 14, every trial, under the Act, is to proceed on day-to-day basis and has to be conducted expeditiously. Therefore, no appeal is provided against any other interlocutory orders passed by the Special Court or the Exclusive Special Court.

54. The reasoning behind the exception carved out is because those orders are concerning the liberty of the accused, as would appear from the interpretation given to in pari materia provisions of

# Section 21(1) and (4) of the National Investigation Agency Act, 2008

(for short „the NIA Act‟) by the Supreme Court in

# State of A.P. v. Mohd. Hussain alias Saleem, reported in (2014) 1 SCC 258

55. Let us, now, take a glance at Section 21 of the NIA Act, which reads as under :

“21. Appeals. –

1. Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

2. Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

3. Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.

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

5. Every appeal under this section shall be preferred within a period of thirty 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 thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:

Provided further that no appeal shall be entertained after the expiry of period of ninety days.”

(emphasis mine)

56. From a bare reading of Section 21 of the NIA Act vis-à-vis Section 14-A of the Act, it becomes transparent that clause (1) and (4) of the NIA Act are in pari materia newly inserted Section 14-A(1) and (2) of the Act.

57. The Supreme Court has interpreted clause (1) and (4) of NIA Act in State of A.P. vs. Mohd. Hussain alias Saleem (supra), wherein the principal submission of the accused respondents was based on the premise that the order, granting or refusing bail, is an interlocutory order and that the order on a bail application is excluded from the coverage of Section 21(1) of the NIA Act, which provides for appeals to the High Court from any judgment, sentence or order of Special Court both on facts and on law. It was argued, on behalf of the respondents, accused that it is only those appeals, which are covered under Section 21(1) that are to be heard by two Judges of the High Court, as laid down under Section 21(1) of the NIA Act. The appeal against refusal of bail lies to the High Court under Section 21(4) and not under Section 21(1) and, therefore, it need not be heard by a Bench of two Judges. It was also argued, on behalf of the respondents accused, that the bail application, which the accused had filed before the Bombay High Court, was one under Section 124 of the Maharashtra Control of Crimes Act read with Section 439 of the Code and was fully maintainable before a Single Judge.

58. After hearing the submission of the parties, the Supreme Court discussed and interpreted the provisions prescribed under Section 21 of the NIA Act in paragraph Nos. 17, 18 and 19 as under : ―

“17. There is no difficulty in accepting the submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Section 21(4), the appeal against such an order lies to the High Court only, and to no other court as laid down in Section 21(3). Thus it is only the interlocutory orders granting or refusing bail which are made appealable, and no other interlocutory orders, which is made clear in Section 21(1), which lays down that an appeal shall lie to the High Court from any judgment, sentence or order, not being an interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This is because as provided under Section 19 of the Act, the trial is to proceed on day to day basis. It is to be conducted expeditiously. Therefore, no appeal is provided against any of the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This is because those orders are concerning the liberty of the accused, and therefore although other interlocutory orders are not appealable, an appeal is provided against the order granting or refusing the bail. Section 21(4), thus carves out an exception to the exclusion of interlocutory orders, which are not appealable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permitted under Section 21(1) of the Act.

18. Section 21(2) provides that every such appeal under sub-Section (1) shall be heard by a bench of two Judges of the High Court. This is because of the importance that is given by the Parliament to the prosecution concerning the Scheduled Offences. They are serious offences affecting the sovereignty and security of the State amongst other offences, for the investigation of which this Special Act has been passed. If the Parliament in its wisdom has desired that such appeals shall be heard only by a bench of two Judges of the High Court, this Court cannot detract from the intention of the Parliament. Therefore, the interpretation placed by Mr. Ram Jethmalani on Section 21(1) that all interlocutory orders are excluded from Section 21(1) cannot be accepted. If such an interpretation is accepted it will mean that there will be no appeal against an order granting or refusing bail. On the other hand, sub-Section (4) has made that specific provision, though sub-Section (1) otherwise excludes appeals from interlocutory orders. These appeals under sub-Section (1) are to be heard by a bench of two Judges as provided under sub-Section (2). This being the position, there is no merit in the submission canvassed on behalf of the appellant that appeals against the orders granting or refusing bail need not be heard by a bench of two Judges.

19. We cannot ignore that it is a well settled canon of interpretation that when it comes to construction of a section, it is to be read in its entirety, and its sub-sections are to be read in relation to each other, and not disjunctively. Besides, the text of a section has to be read in the context of the statute. A few sub-sections of a section cannot be separated from other sub- sections, and read to convey something altogether different from the theme underlying the entire section. That is how a section is required to be read purposively and meaningfully.”

(emphasis mine)

59. After analyzing the provisions of Section 21 of the NIA Act, the Supreme Court held in paragraph Nos. 27.1, 27.2 and 27.3, as under:―

“27.1. Firstly, an appeal from an order of the Special Court under NIA Act, refusing or granting bail shall lie only to a bench of two Judges of the High Court.

27.2. And, secondly as far as prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as The Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court.

27.3 Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a bench of two Judges of the High Court.”

(emphasis mine)

60. In the backdrop of the position of law as delineated above, in the matter of State of A.P. vs. Mohd. Hussain alias Saleem (supra), there can be no escape from the conclusion that if an application for bail or pre-arrest bail, in the cases instituted under the Act, is made under the provisions prescribed in Chapter XXXIII of the Code in a Special Court or an Exclusive Special Court and it is granted or refused, an appeal, under newly inserted Section 14-A(2) of the Act, would lie before the High Court.

61. Accordingly, we hold that against an order granting or refusing bail passed by the Special Court or Exclusive Special Court, either under Section 438 or under Section 439 of the Code, in respect of the offences under the Act, no application for pre-arrest bail or bail, under the Code, shall lie before the High Court and only an appeal, under Section 14-A(2) of the Act, would be maintainable before the High Court.

62. The fifth question for determination is answered accordingly.

63. Now, the last issue for consideration is whether an accused, apprehending his arrest in a case instituted under the provision of the Act, can directly file an application under Section 438 of the Code before the High Court?

64. While considering the above issue, it needs to be noted that the specific question involved in these cases, is no longer res integra. We may refer to the case of

# State of Gujarat v. Salimbhai Abdulgaffar Shaikh, reported in (2003) 8 SCC 50

wherein the Supreme Court, in a pari materia provision under the

# Prevention of Terrorism Act, 2002

(for short „POTA‟), has lucidly interpreted the law.

65. But before that ; it is necessary to take note of Section 34 of the POTA, which read as under :-

# 34. Appeal

(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2) Every appeal under Sub-section (1) shall be heard by a bench of two Judges of the High Court.

(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.

(4) Notwithstanding anything contained in Sub- section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty 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 thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days.”

(emphasis mine)

66. From a reading of Section 34 of the POTA, it becomes transparent that clause (1) and clause (4) of Section 34 is in pari materia Section 14-A(1) and (2) of the newly inserted Act.

67. In the matter of State of Gujarat vs. Salimbhai Abdulgaffar Shaikh (supra), the State of Gujarat had appealed against an order of the Gujarat High Court, wherein, by invoking Section 439 of the Code, it had granted bail to persons accused of an offence punishable under the POTA and directed the State to release them on bail. Before the Supreme Court, it was argued, on behalf of the State, that the accused having not applied for bail in relation to offences under Sections 3 and 4 of the POTA, it was not open to the learned Judge of the High Court to entertain bail applications and grant bail and having regard to the provisions of Section 34(2) of the POTA, only a Bench of two Judges can grant bail in an offence under the POTA and since the learned single Judge has granted bail in exercise of power under Section 439 of the Code read with Section 482 of the Code, the order, granting bail, is illegal and without jurisdiction. In the said case, the Supreme Court pointed out that Section 34(1) of the POTA lays down that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to High Court, both on facts and on law.

68. Further interpreting the scope of sub-section (4) of Section 34 of the POTA, the Supreme Court observed, in State of Gujrat vs. Salimbhai Abdulgaffar Shaikh (supra), at paragraph Nos. 10 and 11, as under : ―

“10. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word ‘appeal’ is used both in Code of Criminal Procedure and Code of Civil Procedure and in many other Statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning which is as under :-

“A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, specially the submission of a lower Court’s decision to higher Court for review and possible reversal.

An appeal strictly so called is one in which the question is, whether the order of the Court from which the appeal is brought was right on the material which the Court had before it.

An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial.

An appeal generally speaking is a rehearing by a superior Court on both law and fact.”

11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, and in view of express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is therefore evident that the provisions of POTA are in clear contradistinction with that of Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, sine qua non for approaching the High Court.”

(emphasis mine)

69. While rejecting the contention of the respondents that the power of the High Court to grant bail, under Section 439 of the Code, has not been taken away by the POTA and, as such, the learned single Judge had the jurisdiction to grant bail to the respondents accused in exercise of power conferred by the said provisions, the Supreme Court, at paragraph Nos. 14 and 15, observed as under :

“14. That apart if the argument of learned counsel for the respondents is accepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 Cr.P.C. in the original or concurrent jurisdiction which may be heard by a Single Judge or may prefer an appeal under Sub-section (4) of Section 34 of POTA which would be heard by a bench of two judges. To interpret a statutory provision in such a manner that a Court can exercise both appellate and original jurisdiction in respect of the same matter will lead to an incongruous situation. The contention is therefore fallacious.

15. In the present case, the respondents did not chose to apply for bail before the Special Court for offences under POTA and consequently there was no order of refusal of bail for offences under the said Act. The learned single Judge exercising powers under Section 439 read with Section 482 Cr.P.C. granted them bail. The order of the High Court is clearly without jurisdiction as under the scheme of the Act the accused can only file an appeal against an order of refusal of bail passed by the Special Court before a Division Bench of the High Court and, therefore, the order under challenge cannot be sustained and has to be set aside. Even on merits the order of the High Court is far from satisfactory. Though it is a very long order running into 87 paragraphs but the factual aspects of the case have been considered only in one paragraph and that too in a very general way.”

(emphasis mine)

70. Further rejecting the contention of the respondents accused that the High Court has enough power under Section 482 of the Code while granting bail to the respondents, the Supreme Court, in State of Gujarat vs. Salimbhai Abdulgaffar Shaikh (supra), observed as under : ―

“Section 482 Cr.P.C. saves the inherent power of the High Court. The High Court possesses the inherent powers to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. The power has to be exercised to prevent abuse of the process of the Court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. There being a specific provision for grant of bail, the High Court clearly erred in taking recourse to Section 482 Cr.P.C. while enlarging the respondents on bail.”

(emphasis mine)

71. Thus, in the light of the observations made in State of Gujarat vs. Salimbhai Abdulgaffar Shaikh (supra), it becomes clear that an appeal is a proceeding to rectify the erroneous decision both on facts and on law. The order granting or refusing bail, in the light of the provisions of Section 34(4) of the POTA, could have been examined on merit by the High Court without any other fetter.

72. While laying down the Scheme for bail under the POTA, the Supreme Court held that it is in contradistinction to that of the Code. It pointed out that an appeal would lie only against an order of the Special Court and unless there is an order of a Special Court refusing or granting bail, the accused cannot prefer an appeal before the High Court seeking bail. What follows further from the above discussion is that even the High Court could not have invoked its power under Section 439 of the Code to grant bail to a person accused of an offence under the POTA.

73. It would also mean that in order to obtain release on bail, the accused person, arrested under the POTA, was required to, first, apply to the Special Court, where the Special Court was constituted and if his application for bail was rejected, then, only he could have preferred appeal against the order refusing bail. Similarly, even the State could have preferred an appeal if the Special Court happened to grant bail to such an accused person.

74. We have already seen that the provisions, prescribed under Section 14-A, are in clear contradistinction to that of the Code. Section 14-A of the Act provides for an appeal against an order of the Special Court and, in view of the ratio laid down by the Supreme Court, in State of Gujarat vs. Salimbhai Abdulgaffar Shaikh (supra), it becomes clear that unless there is an order of Special Court refusing or granting pre-arrest bail, under Section 438 of the Code, the accused cannot invoke the power of the High Court, under Section 438 of the Code, to grant pre-arrest bail.

75. In other words, in order to obtain an order under Section 438 of the Code, an accused is required to, first, apply to the Special Court or the Exclusive Special Court, as the case may be, and he can, thereafter, prefer an appeal against an order refusing bail if his application for is rejected by such Court. Similarly, even the State can prefer an appeal if the Special Court or the Exclusive Special Court, as the case may be, allows an application for pre- arrest bail made under Section 438 of the Code, to such an accused person. Further, unless there is an order of the Special Court or the Exclusive Special Court granting or refusing bail, the accused will have no right to file an appeal before the High Court for grant of pre-arrest bail.

76. Thus, existence of an order of the Special Court or the Exclusive Special Court is a sine qua non for approaching the High Court in appeal. This is because the provisions, prescribed under Section 14-A of the Act, have an overriding effect over the provisions of the Code in view of the provisions prescribed under Section 4(2) of the Code.

77. Thus, we have no hesitation in holding that in a case instituted under the provisions of the Act, an accused, apprehending his arrest, cannot directly file an application, under Section 438 of the Code, seeking pre-arrest bail before this Court as the provisions, prescribed under Section 14-A(1) and (2) of the Act, like Section 34(1) and (4) of the POTA, are in clear contradistinction to that of the Code, where no appeal is provided against an order granting or refusing bail. Hence, an appeal can lie only against an order of the Special Court or the Exclusive Special Court, as the case may be. The accused will have no right to directly file an application under Section 438 of the Code before this Court for grant of pre-arrest bail.

78. Having answered the issues involved in these applications, we remit these applications to the respective learned Single Judges to pass appropriate order(s) in accordance with law.

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