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2022 DIGILAW 74 (CHH)

Neeraj Jagatramka v. State of Chhattisgarh

2022-02-07

PARTH PRATEEM SAHU

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JUDGMENT : Parth Prateem Sahu, J. 1. This Appeal is filed under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Act of 1989”) for grant of anticipatory bail. 2. Registry upon filing of this appeal pointed out default that the criminal appeal filed under the provisions of Section 14A(2) of the Act of 1989 by appellant has already been decided vide order dated 11.08.2021 in Criminal Appeal No. 642/2021. Learned State counsel also, at the time of hearing of application, raised objection that when once appeal is filed under Section 14A(2) of the Act of 1989 which was already disposed of, another criminal appeal would not lie. 3. Today this appeal is taken up for hearing for considering the objection that filing of another appeal under Section 14A(2) of the Act of 1989 with a prayer for grant of anticipatory bail would be maintainable or not and if it is maintainable, to consider it on merits. 4. Appellant, filed this appeal under Section 14A(2) of the Act of 1989 seeking anticipatory bail, apprehending his arrest in crime bearing No. 261/2020, registered at police station AJK Raigarh (city kotwali, Raigarh) for commission of offence under Sections 186, 294, 353 of IPC including the offence under Section 3(1)(r) and 3(1)(s) of the Act of 1989. 5. Mr. Manoj Pranjpe, learned counsel for appellant would submit, that default as pointed out by the Registry with regard to filing of another appeal after disposal of appeal filed earlier is not proper. Appellant earlier approached this Court for grant of anticipatory bail in an appeal bearing CRA No. 642/2021 which was disposed of vide order dated 11.08.2021. Learned counsel referring to provisions of Section 14A(2) of the Act of 1989 would submit that under this provision any order passed by a Special Court or the Exclusive Special Court granting or refusing bail is made appealable. Provision of Section 14A of the Act of 1989 is inserted by Act 1 of 2016 w.e.f. 26.01.2016. For grant of bail either anticipatory or regular bail, applications, before the Special Court, are to be filed under Section 438 or Section 439 of CrPC. Under the Act of 1989, there is no specific provision to file application for grant of bail before the Special Court or Exclusive Special Court. For grant of bail either anticipatory or regular bail, applications, before the Special Court, are to be filed under Section 438 or Section 439 of CrPC. Under the Act of 1989, there is no specific provision to file application for grant of bail before the Special Court or Exclusive Special Court. He contended that repeated bail applications under Section 438 and Section 439 of CrPC are not barred. Person apprehending his arrest if filed an application for anticipatory bail under the provision of Section 438 of CrPC can repeat the prayer for grant of bail before the same Court on changed circumstances and similarly under the provisions of Section 439 of CrPC also the person arrested in any of the crime can repeat the prayer for grant of bail projecting the changed circumstances, if his earlier bail application is rejected. He placed reliance upon judgment of Hon'ble Supreme Court in case of Rani Dudeja v. State of Haryana reported in (2017) 13 SCC 555 and submits that in this judgment it is held that principle of res judicata could not be operated in an application for bail. Learned counsel also relied upon the judgment of Division Bench of Madhya Pradesh High Court in case of Imratlal Vishwakarma and others v. State of Madhya Pradesh reported in (1996) M.P.L.J. 662; Ramu @ Ramlal v. State of M.P. and would submit that the High Court of Madhya Pradesh also held that there is no statutory prohibition contained in Code of Criminal Procedure (CrPC) barring application/petition under Section 438 and applying the same analogy when the appellant approaches the High Court seeking relief of bail either anticipatory or regular bail under Section 14A(2) of the Act of 1989, there cannot be any bar of filing another appeal under Section 14A(2) of the Act of 1989. Hence, the default as pointed out by the Registry as also the objection raised on the part of State counsel is not sustainable. 6. Mr. Vimlesh Bajpai, learned State counsel opposes the submission of learned counsel for appellant and would submit that as the appeal is filed under Section 14A(2) of the Act of 1989 which is a special Act, under the provisions of this Act there is no specific provision of filing another appeal even for relief of bail, hence this appeal would not be maintainable. 7. I have heard learned counsel for the respective parties. 8. 7. I have heard learned counsel for the respective parties. 8. For considering the submissions of maintainability of this appeal in its form, before proceeding further, I find it appropriate to extract the provisions of Section 14A of the Act of 1989 which reads as under: “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 subsection (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.” 9. Facts of the case are, that the appellant apprehending his arrest in Crime No. 261/2020 approached the Special Court (Scheduled Castes and Scheduled Tribe, Prevention of Atrocities, Act), Raigarh, by way of filing an application under Section 438 of CrPC which came to be dismissed on 17.04.2020. Thereafter, appellant filed an appeal under Section 14A(2) of the Act of 1989 bearing number CRA No. 642/2021 which was dismissed as withdrawn on 11.08.2021. Bail under the provisions of Act of 1989 is not specifically defined or envisaged. Section 20 of the Act of 1989 mentions Act to override other laws and reads as under: “20. Act to override other laws.- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.” 10. Overriding of the Act is with respect to only with the inconsistent provision therewith contained in any other law. Overriding of the Act is with respect to only with the inconsistent provision therewith contained in any other law. Section 18 of the Act of 1989 very specifically mentions that Section 438 of CrPC not to apply to persons committing an offence under the Act of 1989 and there is specific bar with regard to maintainability of anticipatory bail applications. Referring to Section 18 of the Act of 1989, here is to take note of the intent of law makers, where they have incorporated the provision of not application of certain provision of the Code of Criminal Procedure. Under the Code of Criminal Procedure, there is no bar of repeating the prayer for grant of bail if the first application is dismissed. In the Act of 1989, there is no specific bar in filing repeat appeal with prayer for grant of bail. 11. High Court of Madhya Pradesh in cases of Imratlal Vishwakarma (supra), Ramu @ Ramlal (supra) and Hon'ble Supreme Court in Rani Dudeja (supra) has held that there is no bar under the Code of Criminal Procedure (CrPC) or the res judicata cannot apply to the bail applications. Hon'ble Supreme Court in other judgment has also held that the prayer for bail can be repeated only if there is change in circumstances. Hence, in view of the dictum of Hon'ble Supreme Court, repeated prayer for grant of bail is not barred under the law. Though this appeal is filed under Section 14A(2) of the Act of 1989 is with a prayer for grant of anticipatory bail then the similar analogy as applicable to applications under Section 438 and Section 439 of CrPC will also apply otherwise application for grant of bail to the appellant who is facing trial or apprehending his arrest for commission of crime under the Act of 1989, after rejection of his application for grant of bail at one point of time will have to remain in custody till final disposal of trial or even in changed circumstances could not repeat prayer for grant of anticipatory bail, which could not be the intent of Act of 1989. 12. 12. Hon'ble Supreme Court in case of Babu Singh and others v. State of U.P. reported in 1978 Cri.L.J. 651(1) while considering second application after rejection of its earlier application has held that the order refusing application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. It was also held that Court is not barred from second consideration at a later stage. An interim direction is not a conclusive adjudication and updated reconsideration is not overturning an earlier negation and second application was entertained. 13. From the aforementioned rulings of Hon'ble Supreme Court, it is clear that the law does not prevent second consideration of an application of bail on rejection of first one, earlier rejection is not conclusive. When applying similar analogy for considering bail applications under the Act of 1989 and also keeping in mind Article 21 of the Constitution of India which provides for 'no person shall be deprived of his life and personal liberty except by due process of law', the law of bail is also an integral part of Article 21 of Constitution of India, hence, the default pointed out is not sustainable. 14. For the foregoing reasons, I am of the view that subsequent appeal under Section 14A(2) of CrPC seeking bail after rejection of first bail application is maintainable. 15. So far as, the merits of the appeal are concerned, while considering the appeal bearing CRA No. 642/2021 filed by appellant seeking prayer for anticipatory bail, when this Court considering the allegations levelled against appellant and the material available in the case diary expressed its view that in view of bar under Section 18 of the Act of 1989, application for grant of anticipatory bail is not maintainable, learned counsel appearing therein at that relevant point of time after arguing the bail application at length on merits, sought permission of this Court to withdraw the appeal. He sought further direction for considering application for grant of regular bail if filed after his surrender to be decided on same day. Mr. Manoj Pranjpe, counsel for appellant could not able to point out any change in circumstances for entertaining second appeal for grant of anticipatory bail, except, that appellant is handicapped. He sought further direction for considering application for grant of regular bail if filed after his surrender to be decided on same day. Mr. Manoj Pranjpe, counsel for appellant could not able to point out any change in circumstances for entertaining second appeal for grant of anticipatory bail, except, that appellant is handicapped. As this Court considering the material available in the case diary was of the view that application for anticipatory bail before the Court below as also the appeal seeking prayer for anticipatory bail is not maintainable in view of bar under Section 18 of the Act of 1989 in view of statement of complainant, witnesses and other material available in case diary which also exists today, I do not find any new ground or changed circumstances. The appeal is devoid of merit. 16. In view of above observation, appeal is liable to be and is hereby dismissed accordingly.