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2020 DIGILAW 2291 (KAR)

Mahesh M. S. v. State of Karnataka

2020-11-23

B.A.PATIL

body2020
ORDER : B.A. Patil, J. 1. Heard Sri J.S. Halashetti, learned Counsel for the petitioners-accused 1 to 5 and Sri Mahesh Shetty, learned HCGP for the respondent-State on office objections regarding maintainability of the criminal petition before this Court. 2. Office has raised objections stating that as per Section 14-A(2) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('Act' for short) 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. It is the submission of the learned Counsel for the petitioners that the provisions of Section 14-A of the Act though state that an appeal shall lie against such order, it is applicable only for regular bail and not in respect of anticipatory bail. It is his further submission that Section 14-A of the Act has to be read in conjunction with Sections 18 and 18-A of the Act. It is his further submission that applicability of Section 438 of Criminal Procedure Code, 1973 has been considered by the Hon'ble Apex Court in the case of Prathvi Raj Chauhan v. Union of India and Others, AIR 2020 SC 1036 (paragraphs 10 and 32) and in that light, the criminal petition under Section 438 of Cr.P.C. can be entertained by this Court. On these grounds, he prayed that the office objections may be overruled and the petition be held as maintainable. 4. On the other hand, it is the submission of the learned HCGP that the co-ordinate Bench of this Court after relying upon the decision of the Patna High Court in the case of Bisheshwar Mishra and Others v. Hanumanmishra and Others, in Criminal Misc. Application No. 25276/2016, disposed of 27-10-2016 has held that only remedy available for the petitioners that they have to file an appeal as per Section 14-A(2) of the Act. In that light, he has relied upon the decision of the Co-ordinate Bench of this Court in the case of Jagadeesh and Others v. State of Karnataka and Others 2020 (6) Kar. L.J. 277, in Criminal Petition No. 3055/2020, disposed of on 6-8-2020. 5. I have given my thoughtful consideration to the submissions made by the learned Counsel appearing for the parties. 6. L.J. 277, in Criminal Petition No. 3055/2020, disposed of on 6-8-2020. 5. I have given my thoughtful consideration to the submissions made by the learned Counsel appearing for the parties. 6. For the purpose of brevity, I quote Section 14-A of the Act, which 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." 7. On close reading of the aforesaid section, it is a non obstante clause and it says that an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order of a Special Court. If that interpretation is taken into consideration, then under such circumstances, wider meaning has to be given to the applicability of the Code of Criminal Procedure. As could be seen from the provisions of Sections 438 and 439 of Cr.P.C., the concurrent jurisdiction has been given to both High Court as well as to the Sessions Court for releasing the accused on anticipatory bail or regular bail. As could be seen from the provisions of Sections 438 and 439 of Cr.P.C., the concurrent jurisdiction has been given to both High Court as well as to the Sessions Court for releasing the accused on anticipatory bail or regular bail. Though an order has been passed by the Special Court under Section 438 or 439 of Cr.P.C., the parties are not going to challenge the order which has been passed by the Trial Court under the said Act. It is an independent right which has been given to the parties to approach this Court ignoring the order passed by the Trial Court under Section 438 or 439 of Cr.P.C. Nowhere in Code of Criminal Procedure it says that as against the order of the bail, an appeal lies and even as could be seen from the provisions of Section 378 of Cr.P.C., it is made clear that as and when an order of acquittal or the other orders are passed, then an appeal lies. 8. I have gone through the order of the co-ordinate Bench in the case of Jagadeesh and Others v. State of Karnataka and Others (supra). The co-ordinate Bench has swayed away by the decision of another High Court without referring as to under what circumstances the said decision has been rendered by the said Court. It is not a reasoned order on point in issue. Taking into consideration the provisions of Section 14-A of the Act, it makes very clear that against any order passed by the Special Court, which has reached its finality, then under such circumstances, an appeal lies under Section 14-A of the Act. But the bail application is not considered to be a final order, it is only an interim order/interlocutory order to release or not to release the accused on bail. Even the said section says 'not being an interlocutory order', that itself goes to show that the bail application is only an interlocutory order and against such order, no appeal lies. No enactment can take away the power vested with this Court under Section 438 or 439 of Cr.P.C. unless it is specifically excluded. 9. Taking into consideration the aforesaid facts and circumstances of the case, I am of the considered opinion that the objections raised by the office are not sustainable in law and the same are over-ruled and the criminal petition is held to be maintainable. 10. 9. Taking into consideration the aforesaid facts and circumstances of the case, I am of the considered opinion that the objections raised by the office are not sustainable in law and the same are over-ruled and the criminal petition is held to be maintainable. 10. Learned HCGP is directed to take notice for the respondent-State. 11. The Registry is directed to notify the complainant through the concerned police. 12. List this matter on 27-11-2020. 13. This order shall be communicated to the Registry so as to follow the same.