SC & ST Act; Suman Thakur @ Mritunjay Suman Vs. State of Bihar [Patna High Court, 14-09-2016]

Criminal Procedure Code, 1973 – Section 439 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No. 1 of 2016) – Section 14-A(2) – Appeal against the order granting or refusing bail – An appeal would lie only against an order of the Special Court or the Exclusive Special Court and 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 praying for grant of bail. Thus, existence of an order of the Special Court or the Exclusive Special Court is sine qua non for approaching the High Court in appeal.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No. 1 of 2016) – Section 14-A(2) – Appeal against the order granting or refusing bail – If a Special Court or an Exclusive Special Court, as the case may be, grants bail under the SC & ST Act, 1989, the State cannot invoke the High Court‟s power under Section 439(2) of the Cr.P.C. for cancellation of bail. The remedy of the State also lies in preferring an appeal before the High Court in terms of Section 14-A(2) of the Amendment Act, 2015.

Criminal Procedure Code, 1973 – Section 378 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No. 1 of 2016) – Section 14-A(2) – Whether an appeal preferred by the State against an order of bail would require leave of the High Court – Held, An appeal against an order granting bail preferred by the State does not require leave of the High Court.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No. 1 of 2016) – Section 14-A(2) – the Registry is directed that against an order passed by a Special Court or an Exclusive Special Court granting or refusing bail, no application for bail under Chapter XXXIII of the Cr.P.C. shall be entertained, numbered and listed.


# IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

Date: 14-09-2016

Criminal Appeal (SJ) No.591 of 2016

Arising Out of PS.Case No. -156 Year- 2016 Thana -PAROO District- MUZAFFARPUR

1. Suman Thakur @ Mritunjay Suman, son of Sri Rama Shankar Thakur 2. Munchun Thakur @ Amit Raushan, son of Sri Bachha Thakur, Both are resident of Village- Paroo Babu Tola, P.S. Paroo, District- Muzaffarpur….. …. Appellant/s

Versus

The State of Bihar …. …. Respondent/s

with Criminal Appeal (SJ) No. 625 of 2016 Arising Out of PS.Case No. -106 Year- 2016 Thana -MOTIHARI MUFASIL District- EASTCHAMPARAN(MOTIHARI) 1. Narendra Singh Son of Late Ram Pukar Singh Resident of village – Basatpur, Police Station Mufasil ( Motihari ), District East Champaran …. …. Appellant/s

Versus

1. The State of Bihar …. …. Respondent/s Appearance : (In CR. APP (SJ) No.591 of 2016) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Md. Imteyaz Ahmad, Advocate For the Respondent/s : Mr. Sadanand Paswan, APP (In CR. APP (SJ) No.625 of 2016) For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate Mr. Madhurendra Kumar, Advocate For the Respondent/s : Mr. Sadanand Paswan, APP

These criminal appeals raise a common preliminary issue and as such the issue is being decided by a common order.

2. Cr. Appeal (S J) No. 591 of 2016 has been filed under

# Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Act No.1 of 2016)

(hereinafter referred to as „the Amendment Act, 2015′) by the appellants challenging the order dated 26.07.2016 passed by the learned 3rd Additional Sessions Judge-cum-Special Judge, Muzaffarpur in G. R. Case No. 103 of 2016, arising out of Paroo P. S. Case No. 156 of 2016, registered under certain provisions of the Indian Penal Code and the

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

(hereinafter referred to as ‘the SC & ST Act, 1989’) whereby the prayer for bail of the appellants has been rejected.

3. Cr. Appeal (SJ) No. 625 of 2016 has been filed under Section 14-A(2) of the Amendment Act, 2015 by which the appellant has challenged the order dated 01.08.2016 passed by the learned Special Judge-cum-1st Additional Sessions Judge, East Champaran at Motihari in B.P. No. 1008 of 2016, arising out of certain offences under the Indian Penal Code and the SC & ST Act, 1989 whereby the bail petition of the appellant has been rejected.

4. The main thrust of the preliminary argument of the appellants revolves around the literal interpretation of the provisions prescribed under Section 14-A(1) and (2) of the Amendment Act, 2015 introduced in the SC & ST Act, 1989, with effect from 26th January, 2016.

5. It is the contention of the appellants that an order made in a proceeding arising out of an application for grant of bail is not a judgment, final order or sentence in a criminal proceeding. A judgment would mean any decision which finally terminates a criminal proceeding pending before a Court. Further, the order in question is neither a final order nor imposes a sentence. Therefore, in view of the provision prescribed under Section 14-A(1) of the Amendment Act, 2015, an appeal would not be permissible against an order granting or refusing bail by a Special Court or an Exclusive Special Court, as such an order is an „interlocutory order‟.

6. The appellants have drawn the attention of the Court to the provisions prescribed under Section 14-A(1) and (2) of the Amendment Act, 2015. It is contended that the provision of sub- section (2) of Section 14-A of the Amendment Act, 2015 does not affect adversely as to the maintainability of an application moved under

# Section 439 of the Code of Criminal Procedure

(hereinafter referred to as „Cr.P.C.‟) against an order granting or refusing bail by a Special Court or an Exclusive Special Court. The expression “Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail” used in Section 14-A(2) would only mean that the aggrieved party would be entitled to invoke the appellate jurisdiction of the High Court even without obtaining leave from the High Court under certain circumstances where an appeal would be maintainable. In other words, the contention is that by no stretch of imagination the above expression can be given a meaning that it has ousted the jurisdiction of the High Court to entertain an application for bail under Section 439 of the Cr.P.C.. It has been contended that unless there is ouster of jurisdiction by an express provision or by necessary implication, the jurisdiction of the High Court to grant bail under Section 439 of the Cr.P.C. would remain intact.

7. It is next contended by the appellants that had there been an intention of the legislature to prohibit an application under Section 439 of the Cr.P.C. in relation to any case involving arrest of any person on accusation of having committed an offence under the Act, it would have made identical provision to that of Section 18 of the SC & ST Act, 1989 which expressly creates a bar for invoking powers under Section 438 of the Cr.P.C..

8. The appellants have urged that after the Amendment Act, 2015 came into force, some of the Stamp Reporters in the Registry are raising objection regarding maintainability of the application under Section 439 of the Cr.P.C. and some other Stamp Reporters do not raise such objection and in those cases the Registry is allowing those applications for bail under Section 439 of the Cr.P.C. to be listed. Several members of the Bar present in the Court have also supported the aforesaid contention of the learned Advocates appearing on behalf of the appellants. They have submitted that against the orders of the Special Courts or Exclusive Special Courts granting or refusing bail, in some cases criminal appeal under Section 14-A of the Amendment Act, 2015 are being filed whereas in some other cases bail applications under Section 439 of the Cr.P.C. are being entertained by the Registry.

9. Per contra, it has been argued by the State that the contentions of the appellants are unsustainable. It has been contended by the State that in view of the provisions prescribed under Section 14- A of the Amendment Act, 2015, an application under Section 439 of the Cr.P.C. would not be maintainable against an order passed by the Special Court or the Exclusive Special Court granting or refusing bail in a case involving arrest of any person on accusation of having committed an offence under the SC & ST Act, 1989.

10. It is urged by the learned counsel for the State that from a careful reading of the newly inserted Section 14-A(2) of the Amendment Act, 2015, it would be evident that the intention of the legislature was to exclude the application of general provision relating to bail matters contained under Sections 436 to 439 of Chapter XXXIII of the Cr.P.C..

11. In view of the significance of the issue and the aforesaid controversy, it would be relevant to consider the object behind the amendment of the SC & ST Act, 1989.

12. Article 17 of the Constitution of India abolished „untouchability‟, forbade its practice in any form and made enforcement of any disability arising out of untouchability as an offence punishable in accordance with law. The Act of Parliament namely the SC & ST Act, 1989, to give effect to the provisions of Article 17 of the Constitution was enacted in 1989 for preventing atrocities against the members of the Scheduled Castes and Scheduled Tribes, to provide for Special Courts for trial of such offences as well as relief and rehabilitation of the victims of atrocities.

13. Being concerned with the continuing allegations of atrocities despite the provisions of the enabling Act against the members of the Scheduled Castes and the Scheduled Tribes, the Government of India passed the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2013 in order to strengthen the existing Act and to make the relevant provisions of the SC & ST Act, 1989 more effective. Consequent upon passing of the said Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2013 by the Parliament to make the amendments in the SC & ST Act, 1989, Amendment Act, 2015 was notified in the Gazette of India Extraordinary on January 1, 2016. In view of its sub-section (2) of Section 1, the Central Government appointed 26th January, 2016 as the date of enforcement of the Amendment Act, 2015 notified in the Gazette of India Extraordinary on 18th January, 2016.

14. The amendments brought under the existing SC & ST Act, 1989 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.

15. The objective of these amendments in the existing SC & ST Act, 1989 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 specification of Exclusive Public Prosecutor for trial of offences under the SC & ST Act, 1989 to enable speedy and expeditious disposal of cases. The Special Courts and Exclusive Special Courts have been vested with the power to directly take cognizance of offences and as far as possible, complete the trial of cases within two months from the date of filing of charge-sheet on day-to-day basis.

16. Having considered the object behind the Amendment Act, 2015, it would be relevant to take note of Section 14 of the SC & ST Act, 1989 prior to its amendment, which reads 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.‖

17. Section 14 of the SC & ST Act, 1989 has been substituted by the Amendment Act, 2015. The substituted provision of Section 14 reads 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)

18. From a reading of proviso (2) of Section 14(1) of the Amendment Act, 2015, it would be apparent that the Special Courts and the Exclusive Special Courts established under the Act shall have power to directly take cognizance of the offences punishable under the SC & ST Act, 1989.

19. The term „Special Court‟ defined under Section 2(d) and the Exclusive Special Court defined under Section 2(bd) of the SC & ST Act, 1989 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.‖ (emphasis mine)

20. At this juncture, I think it appropriate to refer to Section 193 of the Cr.P.C., 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.‖

21. A reading of Section 193 of the Cr.P.C. would make it clear that no court of Sessions 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 Cr.P.C.. However, there is an exception to the general rule under Section 193 of the Cr.P.C., which permits the court of Sessions to take cognizance of an offence as a court of original jurisdiction if it is expressly provided either by the Cr.P.C. or by any other law for the time being in force.

22. There is no dispute to the fact that the SC & ST Act, 1989 is a Special law. The substituted second proviso of Section 14 of the Amendment Act, 2015 specifically confers power upon the Special Courts and Exclusive Special Courts to take cognizance of the offence directly as a court of original jurisdiction. It makes the legislative intent clear. In view of the above amendment, after its coming into force, the police would be required to transmit the FIR after institution of the case to the Special Court or the 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 such Special Court or Exclusive Special Court for the offences under the SC & ST Act, 1989. It would further be 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 SC & ST Act, 1989. The requirement of the committal proceeding under Section 209 of the Cr.P.C. has also been done away with. The object behind doing so is to enable speedy and expeditious disposal of the cases.

23. In exercise of powers conferred by Section 14 of the SC & ST Act, 1989, in modification of all the previous orders and notifications issued on this subject, in consultation with the Chief Justice of the High Court, the State Government had issued notification vide Memo No. 5819 dated 22nd November, 1990 by which in all the districts of the State of Bihar the Court of the 1st Additional Sessions Judge in each of the Sessions Division was established as the Special Court for the speedy trial of the offences under Section 14 of the SC & ST Act, 1989 for a period of one year from the date of publication of the notification in the Bihar Gazette. Subsequently, vide notification bearing Memo No. 340 dated 10th February, 1995, the State Government, with the concurrence of the Chief Justice of the High Court, established the Court of the 1st Additional Sessions Judge in each of the Session Division as a Special Court for providing speedy trial of the offences arising out of the SC & ST Act, 1989. The aforesaid notification was published in the Bihar Gazette Extraordinary on 10th February, 1995. It reads as under :

―S.O. In exercise of the powers conferred by Section-14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act-33 of 1989) the Governor of Bihar in consultation with the High Court of Judicature at Patna is pleased to direct that :-

(a) In all the district of the State of Bihar the Court of the 1st Additional Sessions Judge in each of the Sessions Division shall be a special court for providing speedy trial of the offences arising out of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, whose jurisdiction shall be the local limits of that district;

(b) Such districts of the State where, at present, no Session Division is established cases arising out of the said Act within its local limits shall be tried by the Special Court of the 1st Additional Sessions Judge of that Sessions Division with which such district is, at present, attached.

2. This Notification shall come into force from the date of its publication in the Bihar Gazette.‖ (emphasis mine)

24. It has been brought to the notice of the Court that prior to the coming into force of the Amendment Act, 2015, Special Courts were already in place in all the districts of the State of Bihar. After coming into force of the Amendment Act, 2015, a notification regarding establishment of Exclusive Special Courts of Additional District & Sessions Judge rank in five districts of the State of Bihar has been issued vide S.O. 5 dated 5th January, 2015, which reads as under :

―S. O. 5, dated 15th January 2015–In exercise of the powers conferred by sub-section (1) and (3) of section 9 of the Code of Criminal Procedure, 1973 (Act-2 of 1974) and section-14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (Act 33 of 1989), in modification of all the previous orders and notifications issued on this subject, in consultation with the High Court of Judicature at Patna, the Governor of Bihar is pleased to –

(i) Constitute an exclusive special court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the rank of Additional Sessions Judge separately in the district of Patna, Gaya, Muzaffarpur, Begusarai and Bhagalpur for speedy trial of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, the Jurisdiction of which will be the respective local limits of the concerned district.

(ii) Headquarters of these courts, shall be at Patna, Gaya, Muzaffarpur, Begusarai and Bhagalpur respectively.

(iii) The Notification of Law Department, Bihar, Patna, notified on 10.02.1995, with respect to trials of the cases arising under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 for the above said districts is accordingly hereby amended to the extent indicated above.

(iv) All Such cases/trials relating to Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, pending before the courts of 1st Additional and Sessions Judge in the above said five districts, would accordingly stand transferred to the concerned aforesaid designated Exclusive Special Courts.

(v) This notification shall come into force on expiry of 30 (thirty) days from the date of its publication in the Official Gazette.‖ (emphasis mine)

25. In view of the legislative changes, as noticed hereinabove, it is of salience to note that in so far as an application for bail under Chapter XXXIII of the Cr.P.C. is concerned, it can now be filed only before the court of original jurisdiction i.e. the Special Court or the Exclusive Special Court as the case may be, which shall necessarily be a Court of Sessions, as the Special Court defined under Section 2(d) of the Act means a Court of Sessions specified as a Special Court in Section 14 and the Exclusive Special Court as defined under Section 2(bd) of the Amendment Act, 2015 means the Exclusive Special Court established under sub-section (1) of Section 14 exclusively to try the offences under this Act.

26. Now the next issue of relevance to be addressed would be whether the order passed by the Special Court or the Exclusive Special Court granting or refusing bail can be challenged before this Court under the provisions prescribed under Chapter XXXIII of the Cr.P.C. or an appeal would lie against such orders as provided under Section 14-A of the Amendment Act, 2015.

27. It has been argued by the appellants that unless there is ouster of jurisdiction by an express provision or by necessary implication, the Cr.P.C. would remain intact. The said argument cannot be countenanced, as after coming into force of the Amendment Act, 2015, any other Sessions Court, which has not been specified or declared as a Special Court or an Exclusive Special Court to deal with any matter arising out of the SC & ST Act, 1989 in any manner, also stands ousted. In other words, after coming into force of the Amendment Act, 2015, bail applications are to be filed before the Court of original jurisdiction, i.e. a Special Court or an Exclusive Special Court established under the SC & ST Act, 1989 in the Sessions Division and in view of the provisions prescribed under Section 14-A (1) and (2) of the Amendment Act, 2015 an appeal shall lie in the High Court both on facts and law against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

28. Section 14-A may profitably be referred to understand the contours of the legal proposition that the Special Act (The SC & ST Act, 1989 in the present case) shall override the provisions of General Act (Cr.P.C. in the present case) and would oust the jurisdiction of the High Court to entertain an application for bail under Chapter XXXIII of the Cr.P.C. :

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

(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal 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)

29. It has been argued by the learned counsel for the appellants that clause (1) of Section 14-A of the Amendment Act, 2015 clearly bars an appeal in case of an “interlocutory order” of a Special Court or an Exclusive Special Court. They have submitted that the order granting or refusing bail is not a final order and hence an appeal would not be maintainable against an order granting or refusing bail.

30. Thus, the first question for consideration before this Court is whether or not an order granting or refusing bail by a Special Court or an Exclusive Special Court is an “interlocutory order”. The leading case on the nature of “interlocutory order” is Smith v. Gowell (1880) 29 WR 227, C. A. wherein Brett, L. J. observed :

―I think the proper meaning of ‘interlocutory order’ in this sub-section is an order other than the final judgment or decree in an action.‖

31. According to the Jowitt’s Dictionary of English Law at page 995, interlocutory means, a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely, the judgment. Thus, interlocutory applications is an action which includes all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with the subject-matter of the action, before the rights of the parties are finally determined.

32. Stroud also quotes the case of Smith v. Cowell (1880) 6 QBD 75 for ascertaining the amplitude of the expression “interlocutory order”.

33. In the Central Bank of India Ltd. v. Gokal Chand since reported in AIR 1967 SC 799, the Supreme Court has observed that “interlocutory orders” are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding.

34. In Usmanbhai Dawoodbhai Memon Vs. State of Gujarat since reported in (1988) 2 SCC 271, the Supreme Court has pointed out that the expression “interlocutory order” which appeared in Section 19(1) of the TADA was in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The Court further observed that it cannot be doubted that the grant or refusal of a bail application is essentially an “interlocutory order” for there is no finality attached to the order granting or refusing bail and such an application for bail can always be renewed from time to time.

35. Referring to the decision of the Supreme Court in V.C. Shukla Vs. State through C.B.I., since reported in 1980 Supp SCC 92, the Court observed in paragraph 24 as under :

―24. …The Court must interpret the words ‘not being an interlocutory order’ used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. …‖

36. On the basis of the aforesaid discussion, it is amply clear that the order granting or refusing bail is an “interlocutory order” as it is not a judgment or final order which terminates a criminal proceeding pending before the Court. But the question which remains to be answered is whether or not due to use of non-obstante clause in clause (1) of Section 14-A of the Amendment Act, 2015 whereby an appeal has been barred against an “interlocutory order”, an appeal against the order granting or refusing bail by the Special Court or the Exclusive Special Court would be maintainable before this Court.

37. The legal proposition that a Special Act [The SC & ST Act, 1989 in the present case] shall override the provisions of the General Act (Cr.P.C. in the present case), it would be profitable to refer to Sections 4 and 5 of the Cr.P.C., 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.‖

38. It is apparent from section 4 of the Cr.P.C. that the provisions of the Cr.P.C. shall be applicable whenever an offence under the Indian Penal Code or under any other law is committed and the Cr.P.C. shall regulate the mode of investigation, enquiry or trial. A conjoint effect of Section 4(2) read with Section 5 of Cr.P.C. is that all offences, whether under the Indian Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of Cr.P.C., 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 Cr.P.C. unless there is specific provision to the contrary in Cr.P.C. The jurisdiction under Section 4 of Cr.P.C. 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 Cr.P.C. cannot be said to have been excluded.

39. In the case of Bhim Sen vs. State of U. P. reported in AIR 1955 SC 435 their lordships have held as under :

“…The jurisdiction of the regular criminal court in respect of such a case cannot be taken away by the operation of Section 55 of the Act. It is to be remembered that the jurisdiction of the criminal courts under Section 5 of the Criminal Procedure Code is comprehensive. That section enjoins that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with “according to the provisions hereinafter contained”. To the extent that no valid machinery is set up under the U. P. Panchayat Raj Act for the trial of any particular case the jurisdiction of the ordinary criminal court under Section 5, Criminal P. C., cannot be held to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal”.

40. One may also refer to some other judgments with regard to scope of Section 4 and Section 5 of the CrPC vis-à-vis special Act. In the case of Vishwa Mitter of M/s Vijay Bharat Cigarette Stores vs. O. P. Poddar and Ors. since reported in (1983) 4 SCC 701, the Supreme Court has emphasized the import of Section 4(2) of the Cr.P.C. and has stated thus:

―Section 190 thus confers power on any Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not speak of any particular qualification for the complainant. Generally speaking, anyone can put the criminal law in motion unless there is a specific provision to the contrary. This is specifically indicated by the provision of sub-section (2) of Section 4 which provides That all offences under any other law – meaning thereby law other than the Indian Penal Code – shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions in the Code of Criminal Procedure, 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. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure.‖

41. The doctrine “generalia specialibus non-derogant‖ is that if there is a conflict between a general provision and special provision, it is the special provision that shall prevail. The doctrine is not only applicable vis-à-vis two statutes or provisions within a Statute or even within the legal instruments. The said doctrine is to be invoked only as to whether there is a special conflict between the two provisions of which one is specific with regard to a subject matter while the other is general and covers the same subject-matter apart from other subject matter.

42. In the case of Commissioner of Income-Tax, Patiala and Ors. vs. M/s. Shahzada Nand and Sons and others since reported in AIR 1966 SC 1342, their lordships have dealt with the doctrine of “generalia specialibus non-derogant‖ thus:

―8. … To this may be added a rider : in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. “The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient.” The expressed intention must guide the Court. Another rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at p. 205, thus :

―The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.‖‖

43. The Apex Court considered a plethora of judgment on the said doctrine of “generalia specialibus non-derogant‖ in the case of Commercial Tax Officer, Rajasthan vs. Binani Cements Limited and Another, since reported in (2014) 8 SCC 319 and then concluded –

“construction that special governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indication that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions.‖

44. In order to invoke the doctrine that the specific would govern the general, one will have to examine the subject matter involved in some other laws which contains identical provisions as mentioned in Section 14-A of the Amendment Act, 2015.

45. Section 19(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as „the TADA‟ had a similar provision like Section 14-A(1) of the Amendment Act, 2015. Section 20(7) of the TADA contained the provision which expressly excluded application of Section 438 of the Cr.P.C., but said nothing about Section 439 of the Cr.P.C.. The relevant provision prescribed under Sections 19(1) and 20(7) of the TADA and Section 18 of the SC & ST Act, 1989 and are referred herein below for proper appreciation of the issue :

# TADA

“19. Appeal- (1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law.

20. Modified application of certain provisions of the Code.-

(7) 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 punishable under this act or any rule made thereunder”.

# SC & ST ACT, 1989

“18. Section 438 of the code not to apply to persons 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)

46. In Usmanbhai Dawoodbhai Memon (Supra), a plea was raised before the Gujarat High Court as regards jurisdiction and power of the High Court to grant bail under Section 439 of the Cr.P.C. or by recourse to its inherent powers under Section 482 of the Cr.P.C., but the High Court had held that under the TADA there was total exclusion of the power of the High Court and therefore it cannot entertain an application for grant of bail under Section 439 of the Cr.P.C.

47. Having regard to the Scheme of the TADA, the Supreme Court in Usmanbhai Dawoodbhai Memon (Supra), while holding that an order granting or refusing bail is essentially an interlocutory order upheld the order of the Gujarat High Court. The Court held that with regard to bail under the TADA the High Courts‟ jurisdiction under Section 439 as well as Section 482 of the Cr.P.C. is also excluded.

48. In the State of Punjab Vs. Kewal Singh & Anr. Since reported in 1990 (Supp) SCC 147, in a case instituted under Sections 3 and 4 of the TADA, bail application of some of the accused was rejected by the designated court. Thereafter, they moved before the Punjab and Haryana High Court under Section 439 of the Cr.P.C. for grant of bail. A learned single Judge of the Punjab and Haryana High Court granted them bail. The State of Punjab challenged the order granting bail before the Supreme Court relying upon the judgment of the Supreme Court in Usmanbhai Dawoodbhai Memon (Supra). The Supreme Court set aside the order passed by the High Court releasing the accused persons on bail and directed them to be taken into custody forthwith. The Court held that the High Court had no authority to entertain an application under Section 439 of the Cr.P.C.

49. Having considered the relevant provisions of the TADA, for proper appreciation of the legal issue raised in the present case, this Court would now turn to take into consideration certain provisions of the Prevention of Terrorism Act, 2002 (hereinafter referred to as „the POTA’). It would be pertinent to mention here that in due course of time, amid criticism and a new law having been suggested, the TADA was allowed to lapse in the year 1995. Since acts of terrorism continued, the Government sought to introduce Prevention of Terrorism Bill, 2000 (hereinafter referred to as „the Bill‟). The Bill was forwarded to the Law Commission of India for its views and recommendations. The views and recommendation of the Law Commission of India appeared in its 173rd Report. Chapter VI of the Report relates to suggestions for inclusion of certain additional provisions in the Bill. The relevant portion of Chapter VI is extracted below :

“CHAPTER VI

SUGGESTIONS FOR INCLUSION OF CERTAIN ADDITIONAL PROVISIONS IN THE BILL.

(a) It was suggested by Mr. Prashant Bhuhan, Advocate, Supreme Court that there should be a provision for appeal against an order refusing bail. We are inclined to agree with this plea. But the appeal should be not only against an order refusing bail but also against an order granting bail. Accordingly, it recommended that the following provision be inserted as Sub-section (5) in Section 17 of the Act:

(5) Notwithstanding anything contained in the Code, an appeal shall lie to the Special Court, against an order of the Court, granting or refusing bail.‖

50. When the aforesaid suggestion was offered to the Commission, the Law Commission suggested insertion of Section 17(5) to the proposed bill. It is in this backdrop of legislative history that Section 34 of the POTA provided for appeal against the order passed by the Special Court granting or refusing bail. Section 34 of the POTA is reproduced herein below :-

“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)

51. It would be evident from a reading of Section 34 of the POTA that clause (1) and clause (4) of Section 34 is in pari materia Section 14-A(1) and (2) of the Amendment Act, 2015.

52. In State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh since reported in (2003) 8 SCC 50, the Gujarat High Court, by invoking Section 439 of the Cr.P.C., had granted bail to persons accused of an offence punishable under the POTA and directed the State to release them on bail. The State carried the matter in appeal to the Supreme Court. 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 Cr.P.C. read with Section 482 of the Cr.P.C., 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.

53. 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 paragraphs 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)

54. While rejecting the contention of the respondents that the power of the High Court to grant bail under Section 439 of the Cr.P.C. 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 provision, the Supreme Court in State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh (Supra) at paragraphs 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)

55. Further rejecting the contention of the respondents accused that the High Court has enough power under Section 482 of the Cr.P.C. 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)

56. 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.

57. While laying down the Scheme for bail under the POTA, the Supreme Court held that it is in contradistinction to that of the Cr.P.C.. 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 invoke its power under Section 439 of the Cr.P.C. to grant bail to a person accused of an offence under the POTA.

58. 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.

59. Having considered the relevant provisions of the TADA and the POTA, at this stage, this Court would like to take into consideration identical provisions of the National Investigating Agency Act, 2008 (hereinafter referred to as „the NIA Act’). The NIA Act was enacted on 31.12.2008. At present, the NIA Act is functioning as the Central counter terrorism law enforcement agency in India. The salient features of the NIA Act is that it is applicable to whole of India, citizens of India outside India, in service of the Government wherever they may be and persons on ships and aircrafts registered in India. The officers of the NIA have all the powers, privileges and liabilities which the police officers have in connection with the investigation of any offence.

60. Section 21 of the NIA Act contains provisions for appeals. It 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)

61. It would be evident from the reading of Section 21 of the NIA Act that clause (1) and (4) are in pari materia Section 14-A(1) and (2) of the Amendment Act, 2015.

62. The Supreme Court has interpreted clause (1) and (4) of NIA Act in

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

In the said case, 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 Cr.P.C. and was fully maintainable before a single Judge.

63. After hearing the submission of the parties in the State of A.P. Vs. Mohd. Hussain alias Saleem (Supra), the Supreme Court discussed and interpreted the provisions prescribed under Section 21 of the NIA Act in paragraphs 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)

64. After analyzing the provisions of Section 21 of the NIA Act, it would be appropriate to refer to the decision of the Supreme Court in the State of A.P. Vs. Mohd. Hussain alias Saleem (Supra), held in paragraphs 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)

65. Thus, in the light of the ratio laid down by the Supreme Court in the decisions discussed, hereinabove, the first and foremost question which would arise in the mind is what is the intention of the legislature for incorporating clauses (1) and (2) in Section 14-A of the Amendment Act, 2015. It is well settled principle of law that the intention of the legislature must be found by reading the statute as a whole. Every clause of a statute should be construed with reference to the constraints and other explanations of the Act as far as possible to make a statute meaningful. It is also the duty of the Court to find out the true intention of the legislature and to ascertain the purpose of the statute and give full meaning to the same. The different provisions in the statute should not be interpreted in abstract but should be construed keeping in mind whole enactment and the dominant purpose that it may express. 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.

66. In

# A.R. Antulay Vs. Ramdas Sriniwas Nayak & Another since reported in (1984) 2 SCC 500

the scope of Special Act making the provision for creation of Special Court for dealing with the offences thereunder and application of the Cr.P.C. in such circumstances has been considered and it has been held that the procedure in the Cr.P.C. can be modified by reason of a special provision in special enactment. The Bench held that it is a well established cannon of construction that the court should read the Section as it is and cannot rewrite it to suit its convenience nor can read it in such manner as to render it to some extent otiose.

67. It is well established that the interpretation must depend on the text and the context. If the text is the texture, context is what gives the colour. Neither can be ignored. That interpretation is considered to be the best which makes the textual interpretation match the contextual. In this context when one looks at Section 14-A(1) of the Amendment Act, 2015, it would be evident that it starts with a non-obstante clause and states that notwithstanding anything contained in the Cr.P.C., 1973 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. The non-obstante clause would mean that the provision would have an overriding effect over the Cr.P.C.. It prescribes a forum of appeal for all judgments, sentence or order, which is not interlocutory in nature, to the High Court both on facts and in law.

68. In the context of the ratio laid down in the judgments discussed, hereinabove, there is no difficulty in accepting the submission of the appellants that an order granting or refusing bail is an interlocutory order. Clause (1) of Section 14-A of the Amendment Act, 2015 provides that no appeal would lie against any interlocutory order passed by a Special Court or an Exclusive Special Court. However, an exception has been carved out in clause (2) of Section 14-A, which provides for an appeal against an “interlocutory order” passed by the Special Court or the Exclusive Special Court, either granting or refusing bail under the SC & ST Act, 1989. Thus, it can be said that sub-section (2) of Section 14-A is based on doctrine of reasonable classification and it is to be read as an exception to the general principle. The order granting or refusing bail is, therefore, an order against which an appeal is permitted under Section 14-A(2) of the Amendment Act, 2015. Thus, 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. This is because as provided under sub-section (3) of Section 14 every trial under the SC & ST Act, 1989 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, as the case may be. 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 NIA Act by the Supreme Court in State of A.P. Vs. Mohammad Hussain (Supra).

69. I have already noted above that the Amendment Act, 2015 has been brought in order to strengthen the existing Act and to make the relevant provisions of the Act more effective. It was brought by the legislature being concerned with the continuing allegation of atrocities, despite the provisions of the enabling Act, against the members of the Scheduled Castes and the Scheduled Tribes and for providing speedy trial of the cases, and in order to achieve the said purpose, Special Courts and Exclusive Special Courts have been provided and created.

70. In the light of what has been laid down in

# Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, (1988) 2 SCC 271

# State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC 50

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

there can be no escape from the conclusion that if an application for bail made before a Special Court or an Exclusive Special Court is granted or refused, an appeal under Section 14-A of the Amendment Act, 2015 shall lie to the High Court. It is also clear from the above discussion that against an order granting or refusing bail passed by a Special Court or an Exclusive Special Court no application for bail under Chapter XXXIII of the Cr.P.C. shall lie before the High Court. In view of the specific provision and in view of the interpretation of Section 34 of the POTA given by the Supreme Court in State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh (Supra), it would not be proper to interpret Section 14-A(1) and (2) of the Amendment Act, 2015 in the manner suggested by the learned counsel for the appellants only because the legislature has not provided any identical provision to that of Section 18 of the SC & ST Act, 1989. The argument advanced on behalf of the appellants that since there is no express bar created under the SC & ST Act for invoking power by the High Court under Section 439 of the Cr.P.C., an application under Section 439 of the Cr.P.C. would be maintainable against orders of the Special Courts or Exclusive Special Courts granting or refusing bail is not tenable in law.

71. It is also evident that the provisions of the Amendment Act, 2015 are in clear contradistinction with that of the Cr.P.C. where no appeal is provided against the order granting or refusing bail. Further, an appeal would lie only against an order of the Special Court or the Exclusive Special Court and 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 praying for grant of bail. Thus, existence of an order of the Special Court or the Exclusive Special Court is sine qua non for approaching the High Court in appeal.

72. However, an accused may, in terms of Section 14-A(2) of the Amendment Act, 2015, prefer an appeal to the High Court against an order passed by the Special Court or the Exclusive Special Court, as the case may be, refusing to enlarge him on bail in exercise of power conferred under Chapter XXXIII of the Cr.P.C.. If a Special Court or an Exclusive Special Court, as the case may be, grants bail under the SC & ST Act, 1989, the State cannot invoke the High Court‟s power under Section 439(2) of the Cr.P.C. for cancellation of bail. The remedy of the State also lies in preferring an appeal before the High Court in terms of Section 14-A(2) of the Amendment Act, 2015.

73. In Cr.P.C., the provision for appeal against acquittal has been made under Section 378. An appeal against acquittal is not maintainable without leave of the Court in terms of Section 378(3) of the Cr.P.C. when an order granting or refusing bail has been made appealable, a question would have arisen whether an appeal preferred by the State against an order of bail would require leave of the High Court. It appears from the reading of the provisions of the Amendment Act, 2015 that the Parliament in order to override any such objection, as a matter of caution, deemed it appropriate to introduce into Section 14-A(2) non-obstante clause by using the expression “Notwithstanding anything contained in sub-section (3) of Section 378 of the Code” so that an appeal against an order granting bail preferred by the State does not require leave of the High Court.

74. Thus, sub-section (2) of Section 14-A of the Amendment Act, 2015 has an overriding effect on the limitation placed by sub- section (3) of Section 378 of the Cr.P.C. It is in this context the Parliament has made a reference to sub-section (3) of Section 378 of the Cr.P.C. in Section 14-A(2) of the Amendment Act, 2015 and no other meaning can be attached to the said expression used in Section 14-A(2) of the Amendment Act, 2015.

75. In view of the aforesaid findings of this Court, the preliminary objection made by the appellants regarding maintainability of appeal against an order passed by the Special Court or the Exclusive Special Court granting or refusing bail to an accused is without any merit and is rejected.

76. Henceforth, the Registry is directed that against an order passed by a Special Court or an Exclusive Special Court granting or refusing bail, no application for bail under Chapter XXXIII of the Cr.P.C. shall be entertained, numbered and listed.

77. Let these appeals be listed under the heading “For Admission” for consideration of bail of the respective appellants on merits.

78. Let a copy of the order be handed over to the Registrar General, Patna High Court for the needful.

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