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2023 DIGILAW 891 (PAT)

Suman Mahto v. State of Bihar

2023-08-09

CHAKRADHARI SHARAN SINGH, RAJESH KUMAR VERMA

body2023
Chakradhari Sharan Singh, J. – Precisely narrated, the questions as regards, the ambit, scope and the limitations of Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Act’ in short), are involved in the present reference to the Division Bench made by a learned single-Judge of this Court by an order dated 08.04.2019, passed in the present batch of cases. In paragraph no. 2 of the Reference Order, the learned single-Judge has expressed disagreement with the view taken by a co-ordinate bench of a learned single-Judge. The order of Reference, however, missed to refer to the exact decision of the co-ordinate bench of learned single-Judge of this court with which learned Judge was not in agreement. Learned single-Judge in his concluding paragraphs of the Reference Order has noted as under: – “19. Similar issue was subject to consideration by the Full Bench of Allahabad High Court in Criminal Writ (Public Interest Litigation) No.08 of 2018 with Criminal Miscellaneous No.38755 of 2017 Satyendra and others vs. State of Uttar Pradesh with Criminal Writ (Public Interest Litigation) No.11 of 2018, Vishnu Behari Tiwari vs. Union of India and others reported in 2018 CRI.L.J. 5010 and during consideration of the same, the Full Bench on its own framed, the following points for adjudication: – A. Whether provisions of sub-section (2) of Section 14-A and the second proviso to sub-section (3) of Section 14-A of the Amending Act, are violative of Articles 14 and 21 of the Constitution, being unjust, unreasonable and arbitrary? B. Whether in view of the provisions contained in Section 14-A of the Amending Act, a petition under the provisions of Article 226/227 of the Constitution of India or a revision under Section 397 of the Code of Criminal Procedure (in short Cr.P.C.) or a petition under Section 482 Cr.P.C., 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. stand ousted? C. Whether the amended provisions of Section 14-A would apply to offences or proceedings initiated or pending prior to 26 January 2016? C. Whether the amended provisions of Section 14-A would apply to offences or proceedings initiated or pending prior to 26 January 2016? D. Whether upon the expiry of the period of limitation for filing of an appeal as specified in the second proviso to Section 14-A (3), Section 439 Cr.P.C. and the powers conferred on the High Court in terms thereof would stand revived? E. Whether the power to directly take cognizance of offences shall be exercisable by the existing Special Courts other then the Exclusive Special Courts or Special Courts to be specified under the amended Section 14?” And answered one by one by concluding under Para- 115 as follows:- “115. In light of the above discussion, our answer to the Questions formulated are as follows: A. Whether provisions of sub-section (2) of Section 14A and the second proviso to sub- section (3) of Section 14A of the Amending Act, are violative of Articles 14 and 21 of the Constitution, being unjust, unreasonable and arbitrary? While we reject the challenge to Section 14-A (2), we declare that the second proviso to Section 14A (3) is clearly violative of both Articles 14 and 21 of the Constitution. It is not just manifestly arbitrary, it has the direct and unhindered effect of taking away the salutary right of a first appeal which has been recognised to be an integral facet of fair procedure enshrined in Article 21 of the Constitution. The absence of discretion in the Court to consider condonation of delay even where sufficient cause may exist renders the measure wholly capricious, irrational and excessive. It is consequently struck down. B. Whether in view of the provisions contained in Section 14 A of the Amending Act, a petition under the provisions of Article 226/227 of the Constitution of India or a revision under Section 397 of the Code of Criminal Procedure or a petition under Section 482 Cr.P.C., 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. stand ousted? We therefore answer Question (B) by holding that while the constitutional and inherent powers of this Court are not “ousted” by Section 14A, they cannot be invoked in cases and situations where an appeal would lie under Section 14A. We therefore answer Question (B) by holding that while the constitutional and inherent powers of this Court are not “ousted” by Section 14A, they cannot be invoked in cases and situations where an appeal would lie under Section 14A. Insofar as the powers of the Court with respect to the revisional jurisdiction is concerned, we find that the provisions of Section 397 Cr.P.C. stand impliedly excluded by virtue of the special provisions made in Section 14A. This, we hold also in light of our finding that the word "order" as occurring in subsection(1) of Section 14A would also include intermediate orders. C. Whether the amended provisions of Section 14-A would apply to offences or proceedings initiated or pending prior to 26 January 2016? We hold that the provisions of Section 14A would be applicable to all judgments, sentences or orders as well as orders granting or refusing bail passed or pronounced after 26 January, 2016. We further clarify that the introduction of this provision would not effect proceedings instituted or pending before this Court provided they relate to a judgment, sentence or order passed prior to 26 January 2016. The applicability of Section 14A does not depend upon the date of commission of the offence. The determinative factor would be the date of the order of the Special Court or Exclusive Court. D. Whether upon the expiry of the period of limitation for filing of an appeal as specified in the second proviso to Section 14 A (3), Section 439 Cr.P.C. and the powers conferred on the High Court in terms thereof would stand revived? We hold that the powers conferred on the High Court under Section 439 Cr.P.C. do not stand revived. We find ourselves unable to sustain the line of reasoning adopted by the learned Judge in Rohit that the provisions of Section 439 Cr.P.C. would remain in suspension during the period of 180 days and thereafter revive on its expiry. The conclusion so arrived at cannot be sustained on any known principle of statutory interpretation. We are therefore, constrained to hold that both Janardan Pandey as well as Rohit do not lay down the correct law and must, as we do, stand overruled. The conclusion so arrived at cannot be sustained on any known principle of statutory interpretation. We are therefore, constrained to hold that both Janardan Pandey as well as Rohit do not lay down the correct law and must, as we do, stand overruled. E. Whether the power to directly take cognizance of offences shall be exercisable by the existing Special Courts other than the Exclusive Special Courts or Special Courts to be specified under the amended Section 14?” The existing Special Courts do not have the jurisdiction to directly take cognisance of offences under the 1989 Act. This power stands conferred only upon the Exclusive Special Courts to be established or the Special Courts to be specified in terms of the substituted Section 14. However it is clarified that the substitution of Section 14 by the Amending Act does not have the effect of denuding the existing Special Courts of the authority to exercise jurisdiction in respect of proceedings under the 1989 Act. They would merely not have the power to directly take cognizance of offences and would be bound by the rigours of Section 193 Cr.P.C. Even if cognizance has been taken by the existing Special Courts directly in light of the uncertainty which prevailed, this would not ipso facto render the proceedings void ab initio. Ultimately it would be for the objector to establish serious prejudice or a miscarriage of justice as held in Rati Ram ( AIR 2012 SC 1485 ).” 20. Because of the fact that during course of consideration of aforesaid legal jugglery, the virus of Section 14A of the Act along with other relevant Sections would also be the major issue apart from difference of opinion as indicated above, therefore, the matter is required to be considered properly by the Division Bench and for that, questionnaire has been framed under Para-1 coupled with Para-19, and for that, office is directed to place before the Division Bench after taking permission from Hon’ble the Chief Justice.” 2. We deem it proper, in that background, to reproduce in verbatim paragraph nos. 1 and 2 of the order of Reference dated 08.04.2019: – “1. Apart from other subject, as per roster, the Criminal Appeal arising out of SC/ST (Prevention of Atrocities) Act (Short as Act) have also been assigned excluding the bail matters. We deem it proper, in that background, to reproduce in verbatim paragraph nos. 1 and 2 of the order of Reference dated 08.04.2019: – “1. Apart from other subject, as per roster, the Criminal Appeal arising out of SC/ST (Prevention of Atrocities) Act (Short as Act) have also been assigned excluding the bail matters. When the respective file has been gone through in consonance with the submission having at the end of the learned respective counsels, some of the records even divulge an incidence of conversion from Criminal Miscellaneous Petition purported to be under Section 482 Cr.P.C. to Criminal Appeal under waled of Section 14-A of S.C./S.T. (Prevention of Atrocities) Act. A query has been made whether the prayer (detailed hereinafter) would really attract its adjudication under Criminal Appeal exclusively under the guise of Section 14-A of the S.C./S.T. (Prevention of Atrocities) Act. The nature of prayer, which has been made and perceived relating to different memo of appeal, so far relevant to the present episode is as follows: – (1) Quashing of the prosecution (2) Quashing of the order of the cognizance (3) Quashing of the charge/ Rejection of prayer of discharge (4) Refusal of prayer under Section 311 of the Cr.P.C. (5) Refusal of prayer/ allow of prayer under Section 319 of the Cr.P.C. (6) Consideration of Delay in filing Appeal, provision for Condonation of Limitation. 2. With great respect to the learned Coordinate Bench, I did not carry the same view. As per direction given by the Apex Court in Om Prakash Agarwal Since Deceased Thr. LRS and others vs. Vishan Dayal Rajpoot and another reported in A.I.R. 2018 SC 5486, observing that whenever there happens to be difference of opinion amongst Co-ordinate Bench, the matter is to be referred to Larger Bench. On that score alone, would have come up before the Division Bench. However, I am inclined to record the reasons, though, summarily, as I do not want to make the reference cumbersome, as after all, on reference the Division Bench has to answer. So, only relevant points are being sketched.” 3. On that score alone, would have come up before the Division Bench. However, I am inclined to record the reasons, though, summarily, as I do not want to make the reference cumbersome, as after all, on reference the Division Bench has to answer. So, only relevant points are being sketched.” 3. When the order of Reference dated 08.04.2019 came to be placed before Hon’ble the Chief Justice, before directing the matters to be placed before a Division Bench, the then Hon’ble Chief Justice ordered for placing the papers of these matters before a Division Bench for resolving the controversy by an order dated 11.04.2019, with the following remarks: – “Registrar (List) I have perused the order of reference dated 8th April, 2019 passed in Cr. Appeal (SJ) No. 4792 of 2018 and other analogous cases, whereunder the learned Single Judge has made a request for referring the matter to be resolved by a Division Bench, which in his Lordship's opinion relates to the difference of opinion as expressed in the order. In Paragraph 2 of the order, the learned Single Judge has expressed his difference of opinion with a coordinate Bench, but the reference of the judgment with which the learned Single Judge has differed does not appear to have been specifically indicated. On a study, I find that the learned Single Judge has also expressed his doubt about the status of a bail order being an interlocutory order and the third area of the issue to be resolved, as indicated in the order, is with regard to the vires of Section 14A of the SC/ST (Prevention of Atrocities) Act, 1989. The two judgments that have been delivered by a learned Single Judge of this Court on the issue relating to the point of difference, as indicated, appears to be in the case of Suman Thakur @ Mritunjay Suman & Anr. vs. The State of Bihar [Cr. Appeal (SJ) No. 591 of 2016 along with another appeal vide judgment dated 14th September, 2016]. A copy of the said judgment is placed on record for reference. The other judgment which appears to be the cause for conflict of opinion is in the case of Bisheshwar Mishra and another vs. The State of Bihar [Cr.Misc. No. 25276 of 2016, decided on 27th October, 2016 along with analogous cases]. A copy of the said judgment is also placed on record for reference. The other judgment which appears to be the cause for conflict of opinion is in the case of Bisheshwar Mishra and another vs. The State of Bihar [Cr.Misc. No. 25276 of 2016, decided on 27th October, 2016 along with analogous cases]. A copy of the said judgment is also placed on record for reference. Another decision as to the distinction between an interlocutory order, an intermediary order and a final order has also been considered in a Full Bench decision of the Allahabad High Court in the case of Munna Singh @ Shivaji Singh & Ors. vs. State of U.P. & Anr. [Cr. Revision No. 4414 of 2004 decided on 11th October, 2011. The third area of difference, as indicated by the learned Single Judge, appears to be in relation to the vires of Section 14A of the SC/ST (Prevention of Atrocities) Act, 1989 where the learned Single Judge has referred to a Full Bench judgment of the Allahabad High Court in the case of Vishnu Behari Tewari & Ors. vs. Union of India, reported in 2018 Criminal Law Journal 5010. In this regard, I have come across the order passed by the Apex Court while entertaining an appeal against the aforesaid judgment in the case of Vishnu Behari Tewari (supra) in Special Leave to Appeal (Crl.) No. 544 of 2019 where the following order was passed on 25.01.2019: "Heard the learned counsel for the petitioner and perused the relevant material. Issue notice. Issue notice also on the prayer of interim relief insofar as the order of the High Court with regard to proviso to Section 14A(1) and 14A(3) of the Scheduled Castes and Scheduled Tribes (Amendment) Act, 2015 is concerned." It is in the aforesaid context that the matter has to be resolved subject to the opinion that may be formed by the Bench keeping in view the referring order dated 08.04.2019. Accordingly, let the papers of this Cr. Appeal be placed before a Bench comprising of Hon'ble Mr. Justice Dinesh Kumar Singh and Hon'ble Mr. Justice Birendra Kumar for resolving the controversy at the earliest. Registrar (List) may obtain the consent of the Hon'ble Judges for fixing a date in the matter and list it accordingly.” 4. Accordingly, let the papers of this Cr. Appeal be placed before a Bench comprising of Hon'ble Mr. Justice Dinesh Kumar Singh and Hon'ble Mr. Justice Birendra Kumar for resolving the controversy at the earliest. Registrar (List) may obtain the consent of the Hon'ble Judges for fixing a date in the matter and list it accordingly.” 4. These matters came to be subsequently listed before this Bench and the questions arising out of the interpretation of Section 14A of the Act are being answered accordingly by the present judgment. 5. As interpretation of Section 14A of the ‘Act’ is at the core of the issue, the same is being reproduced hereinbelow: – “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: 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.” 6. There are four sub-Sections in Section 14A of the Act, Sub-Section (3) of which has two provisos, which we shall be dealing with point-wise. (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.” 6. There are four sub-Sections in Section 14A of the Act, Sub-Section (3) of which has two provisos, which we shall be dealing with point-wise. Sub-section (1) of Section 14A of the Act begins with a non obstante clause and states clearly that an appeal shall lie from any judgment, sentence or order, not being any interlocutory order, of a Special Court or an Exclusive Special Court to the High Court, both on the facts and on the law. It is noteworthy that Section 14(1) of the Act mandates the State Government, with the concurrence of the Chief Justice of the High Court, to establish an Exclusive Special Court for one or more districts by notification in official gazette for the purpose of providing speedy trial. The first proviso to subsection (1) of Section 14 stipulates that in such 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, specify for such districts, the court of Sessions to be a Special Courts by notification in the official gazette to try the offences under the Act. The second proviso to Section 14(1) of the Act is significant which provides that the Courts, so established under Section 14 or specified, shall have power to directly take cognizance of the offences punishable under the Act. Thus, in view of the second proviso to Section 14(1) of the Act, the Special Court or the Exclusive Special Court has power to take cognizance. 7. Reverting back to sub-Section (1) of Section 14A of the Act, it is manifest from a plain reading that an appeal lies to the High Court both on facts and on law from any judgment, sentence or order not being an “interlocutory order”. Whether an order taking cognizance of an offence passed by an Exclusive Special Court or Special Court in an interlocutory order or not, is one of the issues which has been vehemently thrashed by the members of the Bar in the present batch of cases. 8. Whether an order taking cognizance of an offence passed by an Exclusive Special Court or Special Court in an interlocutory order or not, is one of the issues which has been vehemently thrashed by the members of the Bar in the present batch of cases. 8. In order to address the issue, we deem it beneficial to notice Section 397 of Cr.P.C. which vests revisional powers in the High court and Sessions Judge excluding in relation to any ‘interlocutory order’ (underscored for emphasis) passed in any appeal, inquiry, trial or other proceedings to sub-section 2 of section 397 of the Cr.P.C. 9. What is the connotation of the term ‘interlocutory order’ appearing in sub-section (2) of Section 397 of the Cr.P.C., had fallen for determination before the Supreme Court also in the oft quoted decision in the case of Amar Nath and Ors vs. the State of Haryana and Anr reported in (1977) 4 SCC 137 . The Supreme Court in the case of Amar Nath (supra) noticed that concept of interlocutory order qua revisional jurisdiction of the High Court was completely foreign to the earlier code, i.e., the Code of Criminal Procedure, 1898, which was subsequently amended by incorporating a provision in the nature of a sub-section with the avowed purpose of cutting out delays and ensuring that the accused persons get a fair trial without much delay and the procedure was not made complicated. The Supreme Court laid down in paragraph no. 6 of the judgment in the case of Amar Nath (supra) as under: – “6. xxxxxxxxxxxxxxxxxxxxxxxx The main question which falls for determination in this appeal is as to what is the connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. In Webster's New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revison to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” 10. In the case of Madhu Limaye vs. State of Maharashtra, reported in (1977) 4 SCC 551 , the true import of the expression ‘interlocutory order’ for the purpose of Section 397(2) of the Act again surfaced for consideration. Referring to Amar Nath (supra), the Supreme Court laid down in paragraphs 16 and 17 in the case of Madhu Limaye (supra) as under: – “16. We may also refer to the decision of this Court in Parmeshwari Devi vs. State [ (1977) 1 SCC 169 : 1977 SCC (Cri) 74 : (1977) 2 SCR 160 ] that an order made in a criminal proceeding against a person who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of Section 397(2). Referring to a passage from the decision of this Court in Mohan Lal case the passage which is to be found in Halsbury's Laws of England, Vol 22, it has been said by Shinghal, J. delivering the judgment of the Court, at p. 164 (SCC p. 172, SCC (Cri) p. 77, para 8): “It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.” As already mentioned, the view expressed in Mohan Lal case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agarwal vs. Hindustan Steel Ltd. [ (1970) 2 SCC 806 : (1971) 2 SCR 605] wherein it was held that an order of the High Court setting aside an ex parte decree in the suit and restoring the suit to the file of the trial court is not a final order within the meaning of Article 133. It is to be noticed that if the High Court would have refused to set aside the ex parte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in Mohan Lal case , such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub-section (2) of Section 397 of the 1973 Code. 17. Before we conclude we may point out an obvious, almost insurmountable, difficulty in the way of applying literally the test laid down in Kuppuswami Rao case and in holding that an order of the kind under consideration being not a final order must necessarily be an interlocutory one. If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it? The Legislature left the power to order further inquiry intact in Section 398. Is it not then, in consonance with the sense of justice to leave intact the remedy of the accused to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above.” 11. Later, in the case of Rajendra Kumar Sitaram Pandey and others vs. Uttam and Another reported in (1999) 3 SCC 134 , a question had arisen as to whether an order issuing process was an ‘interlocutory order’ and therefore, the same was subject to revision or not. Answering the question, the Supreme Court laid down in paragraph no. 6 as under: – “6. Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression “interlocutory order” has not been defined in the Code. In Amar Nath vs. State of Haryana [ (1977) 4 SCC 137 : 1977 SCC (Cri) 585 : (1978) 1 SCR 222 ] this Court has held that the expression “interlocutory order” in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an “interlocutory order”. In Madhu Limaye vs. State of Maharashtra [ (1977) 4 SCC 551 : 1978 SCC (Cri) 10 : (1978) 1 SCR 749 ] a three-Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V.C. Shukla vs. State [1980 Supp SCC 92 : 1980 SCC (Cri) 695 : (1980) 2 SCR 380 ] this Court has held that the term “interlocutory order” used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code.” (underscored for emphasis) 12. The decision in the case of Girish Kumar Suneja vs. Central Bureau of Investigation reported in (2017) 14 SCC 809 , of the Supreme Court revisited the concept of intermediate order, while addressing the question of the bar under Section 397(2) of the Cr.P.C., para 21 of which is relevant and is being reproduced hereinbelow: – “21. The concept of an intermediate order was further elucidated in Madhu Limaye vs. State of Maharashtra (1977) 4 SCC 551 : 1978 SCC (Cri) 10] by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind – an order taking cognizance of an offence and summoning an accused and an order for framing charges. Two such intermediate orders immediately come to mind – an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.” (underscored for emphasis) 13. The decision rendered in the case of Girish Kumar Suneja (supra) clearly lays down that an order taking cognizance is not an ‘interlocutory order’ rather an intermediate order. Taking a cue from Girish Kumar Suneja (supra), we have no hesitation in coming to a definite conclusion that an order taking cognizance passed under the Act is not an ‘interlocutory order’ rather an ‘intermediate order’ and, therefore, appealable under Section 14A of the Act. 14. Further, the language of sub-section (2) of Section 14A is unambiguous and clearly provides that an appeal shall lie to the High Court against an order of Special court or Exclusive Special Court granting or refusing bail. In the judgment dated 14.09.2016 in case of Suman Thakur & Ors vs. The State of Bihar & Anr [CR. APP (SJ) No.591 of 2016 [: 2016 (4) BLJ 266 ]] has held in paragraph nos. 71 to 74 as under: – “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. 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.” 15. Learned single-Judge, in the case of Suman Thakur (supra), in our opinion, after having referred to the provisions under Sections 4 and 5 of the Cr.P.C., has rightly held that when an offence under the Indian Penal Code or any other law is committed, the Cr.P.C. shall regulate the mode of investigation, inquiry or trial unless there is an enactment to regulate the manner or place of investigating, inquiring into the trial or otherwise, dealing with such offences. In the latter case, special enactment will prevail over those provisions of the Cr.P.C. in the absence of any specific provision contrary in Cr.P.C.. Sections 4 and 5 of the Cr.P.C. read thus: – 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 of place of investigating, inquiring into, trying or otherwise dealing with such offences. 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.” 16. It is an unexceptionable legal principle that in case of conflict between a general provision and a special provision, it is the special provision that shall prevail. We need to do nothing but to reiterate for the present purpose, the well accepted doctrine of ‘generalia specialibus non derogant’, which has precisely been stated in Craies on Statute Law, 5th edition at page 205, which reads 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 the only other parts of the statute to which it may properly apply.” 17. In our opinion, learned single-Judge in the case of Suman Thakur (supra) has correctly held that in terms of Section 14A(2) of the Act, an appeal would lie to the High Court against the order passed by the Special Court or Exclusive Special Court granting to or refusing to enlarge a person on bail. 18. It is worthwhile noticing that conflicting views in two Single Bench decisions of this Court on the point of maintainability of anticipatory bail applications under Section 438 of the Cr.P.C. before this Court in connection with the case registered for commission of the offence punishable under the provisions of the Act, the issue had come up for consideration before a Division Bench of this Court in the case of Bisheshwar Mishra (supra). The Division Bench, in the said case, framed following questions in paragraph no. 9 of its decision to answer the reference: – “9. In the background of the facts stated above, though the learned single Judges have framed no issue, while referring the matter to the Division Bench, following questions would be required to be determined in these cases: – (i) Whether a person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of prearrest bail provided in Section 438 of the Code? (ii) Whether a Court of Session or the High Court, while dealing with an application for grant of prearrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not? (iii) Whether an application, under Section 438 of the Code, for grant of pre-arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him ? (iv) Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act ? (iv) Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act ? (v) Whether consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act ? (vi) Whether an accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court ?” 19. The Division Bench, in the case of Bisheshwar Mishra (supra), noticing the Supreme Court’s decision in the case of State of Gujarat vs. Salimbhai Abdul Gaffar Shaikh and Ors reported in (2003) 8 SCC 50 , in which a para materia provision under the Prevention of Terrorism Act, 2002 (POTA in short) was under consideration, has held in paragraph nos. 74 to 77 as under: – “74. We have already seen that the provisions, prescribed under Section 14-A, are in clear contradistinction to that of the Code. Section 14-A of the Act provides for an appeal against an order of the Special Court and, in view of the ratio laid down by the Supreme Court, in State of Gujarat vs. Salimbhai Abdulgaffar Shaikh (supra), it becomes clear that unless there is an order of Special Court refusing or granting pre-arrest bail, under Section 438 of the Code, the accused cannot invoke the power of the High Court, under Section 438 of the Code, to grant prearrest bail. 75. In other words, in order to obtain an order under Section 438 of the Code, an accused is required to, first, apply to the Special Court or the Exclusive Special Court, as the case may be, and he can, thereafter, prefer an appeal against an order refusing bail if his application for is rejected by such Court. Similarly, even the State can prefer an appeal if the Special Court or the Exclusive Special Court, as the case may be, allows an application for prearrest bail made under Section 438 of the Code, to such an accused person. Similarly, even the State can prefer an appeal if the Special Court or the Exclusive Special Court, as the case may be, allows an application for prearrest bail made under Section 438 of the Code, to such an accused person. Further, 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 for grant of pre-arrest bail. 76. Thus, existence of an order of the Special Court or the Exclusive Special Court is a sine qua non for approaching the High Court in appeal. This is because the provisions, prescribed under Section 14-A of the Act, have an overriding effect over the provisions of the Code in view of the provisions prescribed under Section 4(2) of the Code. 77. Thus, we have no hesitation in holding that in a case instituted under the provisions of the Act, an accused, apprehending his arrest, cannot directly file an application, under Section 438 of the Code, seeking pre-arrest bail before this Court as the provisions, prescribed under Section 14-A(1) and (2) of the Act, like Section 34(1) and (4) of the POTA, are in clear contradistinction to that of the Code, where no appeal is provided against an order granting or refusing bail. Hence, an appeal can lie only against an order of the Special Court or the Exclusive Special Court, as the case may be. The accused will have no right to directly file an application under Section 438 of the Code before this Court for grant of pre-arrest bail.” 20. The Supreme Court in the case of Salimbhai Abdul Gaffar Shaikh (supra) had an occasion to deal with sub-sections (1) and (4) of Section 34 of the POTA, which read thus: – “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. (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 Subsection (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.” 21. The Supreme Court in the case of Salimbhai Abdul Gaffar Shaikh (supra), dealing with Section 34 of the POTA has laid down in paragraph nos. 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 the Code of Criminal Procedure and the 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, especially the submission of a lower court's decision to a 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 the 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. 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 the 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, a sine qua non for approaching the High Court.” 22. The Supreme Court in the case of Salimbhai Abdul Gaffar Shaikh (supra), dispelled the contention of the respondents in that case that power of the High Courts to grant bail under Section 439 of the Cr.P.C. had not been taken away by (POTA) when the learned single-Judge had the jurisdiction to grant bail to accused in exercise of the power conferred by the said provision and held in paragraph nos. 14 and 15 of Salimbhai Abdul Gaffar Shaikh (supra) read thus: – “14. That apart, if the argument of the 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 CrPC in the original or concurrent jurisdiction which may be heard by a Single Judge or may prefer an appeal under subsection (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. 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 choose to apply for bail before the Special Court for offences under POTA and consequently, there was no order or refusal of bail for offences under the said Act. The learned Single Judge exercising powers under Section 439 read with Section 482 CrPC 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.” (underscored for emphasis) 23. Further, the Supreme Court in the case of Salimbhai Abdul Gaffar Shaikh (supra) also repelled the contention that the power under Section 482 of the Cr.P.C. can be resorted to for enlarging the respondent of that case, an accused under POTA, on bail. 24. In view of the above-noted discussions, while answering the Reference made in the order dated 08.04.2019, we conclude as under: – (i) The decision rendered by a bench of this Court in the case of Suman Thakur (supra) lays down the correct law and is specifically affirmed. (ii) We are in respectful agreement with the view taken by a Division Bench of this Court in the case of Bisheshwar Misra (supra). (iii) An order taking cognizance by a Special Court or an Exclusive Special Court is not an ‘interlocutory order’, and, therefore, an appeal would lie against such order under Section 14A(1) of the Act. (iv) We have not gone into the question of constitutional validity of any provision under the Act which has not been raised in any of the cases before us. 25. The Reference stands answered, accordingly. 26. These matters may be placed for adjudication/disposal before appropriate bench(es). (iv) We have not gone into the question of constitutional validity of any provision under the Act which has not been raised in any of the cases before us. 25. The Reference stands answered, accordingly. 26. These matters may be placed for adjudication/disposal before appropriate bench(es). Rajesh Kumar Verma, J. – I agree.