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,