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2019 DIGILAW 244 (ORI)

Manmohan Rout v. State Of Odisha

2019-03-26

S.K.SAHOO

body2019
JUDGMENT S.K. Sahoo, J. - I.A. No. of 2019 : This is an application filed by the learned counsel for the petitioner in Court today for conversion of the BLAPL to CRLA. 2. Registry is directed to register the I.A. 3. Heard Miss Deepali Mahapatra, learned counsel for the petitioner, Mr. Priyabrata Tripathy, learned Addl. Standing Cousel for the State of Odisha and Mr. A.K. Pandey, learned counsel for the informant. 4. The bail application has been filed as vide order dated 07.02.2019 passed in Special G.R. Case No.60 of 2018, the learned Sessions Judge-cum-Special Judge, Puri rejected the bail application filed by the petitioner. 5. When the matter was taken up on 20.03.2019, learned counsel appearing for the informant raised a preliminary objection that in view of section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter'1989 Act') as amended by Amendment Act, 2015, this bail application is not maintainable, rather an appeal is maintainable. On that day, learned counsel for the petitioner sought for time to prepare and address on the maintainability point. 6. Section 14-A of the 1989 Act reads as follows "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 Exculsive 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. 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." 7. This provision came into force w.e.f. 26.01.2016. In view of Sub-section (1)of section 14-A of 1989 Act which commences with a non obstante clause, an appeal is maintainable against any judgment, sentence or order, not being an interlocutory order, passed by a Special Court or an Exclusive Special Court, to the High Court both on facts and on law. 8. Similarly Sub-section (2) of section 14-A which also starts with a non obstante clause and overrides the provision of seeking leave of the High Court in case of appeal against acquittal as provided under section 378(3) of Cr.P.C., 1973 further indicates that an appeal shall lie to the High Court against an order of the Special Court or Exclusive Special Court granting or refusing bail. 9. The matter was considered by the Full Bench of the Allahabad High Court in case of In re Provision of Section 14A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 vs. Nil reported in 2018 CLJ 5010 (FB) , wherein it is held as follows 12. Thus, it is clear from section 14-A that it brings out certain radical changes in the challenge procedure as originally envisaged under the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the 1989 Act"). It principally creates an appellate forum at the level of the High Court to challenge any judgment, sentence or order, not being an interlocutory order, including an order refusing or granting bail. It principally creates an appellate forum at the level of the High Court to challenge any judgment, sentence or order, not being an interlocutory order, including an order refusing or granting bail. In this sense, section 14-A makes a significant departure from the original 1989 Act inasmuch as while, prior to promulgation of the Amending Act, the concurrent power of the High Court under Section 439 Cr.P.C., 1973 was preserved, the said powers have now been substituted by creation of an appellate forum at the level of the High Court to consider all challenges relating to a judgment, sentence or order passed by the trial Judges dealing with offences committed under the 1989 Act as well as the power to hear appeals against orders granting or refusing bail." 10. A question was framed in para 5. B by the Full Bench that whether in view of the provisions contained in Section 14-A of the Amending Act, a petition under the provisions of Articles 226/227 of the Constitution of India ora revision under section 397 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') or a petition under Section 482 Cr.P.C., 1973 is maintainable or in other words, whether by virtue of Section 14-A of the Amending Act, the powers of the High Court under Articles 226/227 of the Constitution or its revisional powers or the powers under Section 482 Cr.P.C., 1973 stand outsted? 11. The Full Bench answered the point as follows:- "121. B. We therefore answer Question (B) by holding that while the constitutional and inherent powers of the High Court are hot "ousted" by Section 14-A, they cannot be invoked in cases and situations where an appeal would lie under Section 14-A. Insofar as powers of the Court with respect to the revisional jurisdiction is concerned, we find that the provisions of section 397 Cr.P.C., 1973 stand impliedly excluded by virtue of the special provisions made in Section 14-A. This we hold also in light of our findings that the word "order" as occurring in Sub-section (1) of section 14-A would also include intermediate orders." 12. Another question was formulated by the Full Bench in para 5.C that whether the amended provisions of section 14-A would apply to offences or proceedings initiated or pending prior to 26 January 2016. Another question was formulated by the Full Bench in para 5.C that whether the amended provisions of section 14-A would apply to offences or proceedings initiated or pending prior to 26 January 2016. The Full Bench answered the point in para 121.C that the provisions of section 14-A would be applicable to all judgments, sentences or orders as well as orders granting or refusing bail passed or pronounced after 26th January 2016. However, it was clarified that the introduction of provision under Section 14-A would not affect proceedings instituted or pending before the High Court provided that they relate to a judgment, sentence or order passed prior to 26th January 2016. The applicability of section 14-A does not depend upon the date of commission of offence. The determinative factor would be the date of the order of the Special Court or the Exclusive Special Court. 13. In view of the non obstante clause used the provision under Sub-section (2) of section 14-A which refer to an order of granting or refusing bail, the general provision for bail under section 439(1) of Cr.P.C., 1973 in approaching this Court by filing BLAPL application after rejection of the bail by the Special Court or Exclusive Special Court or for cancellation of bail under Section 439(2) Cr. PC. in approaching this Court by filing CRLMA application against the bail order passed by such Court is not permissible rather an appeal is maintainable. The non obstante clause used in the aforesaid Sub-section (2) has got the impact to that extent. In view of the decision rendered by the Full Bench of the Allahabad High Court, I am inclined to accept the prayer made by the petitioner in this interim application. 14. Therefore, the registry is directed to re-register this bail application as Criminal Appeal and place the matter before the assigned Bench. 15. The I.A. is accordingly disposed of. 16. In view of the decision rendered by the Full Bench of the Allahabad High Court, I am inclined to accept the prayer made by the petitioner in this interim application. 14. Therefore, the registry is directed to re-register this bail application as Criminal Appeal and place the matter before the assigned Bench. 15. The I.A. is accordingly disposed of. 16. This order be placed before the Registrar General for its communication to the Stamp Reporters so that in any bail application or cancellation of bail application which involves an offence under SC & ST (PA) Act, if the order has been passed by the Special Court or the Exclusive Special Court after 26.01.2016 and it is filed in the form of BLAPL or CRLMA respectively, defect will be shown regarding its maintainability so that appropriate step can be taken by the petitioner to convert the same to Criminal Appeal. 17. Issue urgent certified copy as per rules.