Court No. - 64
Case :- CRIMINAL APPEAL DEFECTIVE No. - 861 of 2021 Appellant :- Sheru Nishad Respondent :- State of U.P. and Another Counsel for Appellant :- Ashok Kumar Pandey,Suraj Pandey Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Ashok Kumar Pandey, learned counsel for the appellant, Sri Gopal Ji Khare, learned counsel for the informant and Sri Nagendra Srivastava, learned AGA for the State and perused the material placed on record.
2. This criminal appeal under Section 14A(2) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 03.03.2021, passed by learned Additional Special Judge/Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Allahabad, in Case Crime No.39 of 2021, under Sections -452, 376, 323, 506 I.P.C. and Section 3(2)(V) S.C./S.T. (Prevention of Atrocities) Act, Police Station -Kareli, District - Prayagraj, whereby bail application of the appellant has been rejected.
3. The stamp reporter has reported a defect as to maintainability of the appeal. It reads :
"As per status register, computer record of criminal appeal no.1361 of 2021 filed on behalf of the same appellant Sheru Nishad has already been disposed of."
4. Defect as to the limitation was also reported as the present appeal was presented on 20 December, 2021.
5. At the outset, learned counsel for the informant and learned AGA have raised preliminary objection as to the maintainability of the appeal. It is their contention that against the impugned order dated 03.03.2021 passed by learned Additional Special Judge/Special Judge, (Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Allahabad, in Case Crime No.39 of 2021, under Sections -452, 376, 323, 506 I.P.C. and Section 3(2)(V) S.C./S.T. (Prevention of Atrocities) Act, Police Station -Kareli, District - Prayagraj, the present appellant 'Sheru Nishad' had approached this Court by means of Criminal Appeal No.1361 of 2021. It was dismissed vide order dated 09.08.2021. Thus, it has been submitted, the appeal against the impugned order once dismissed, no cause of action survives to entertain another appeal against the same order.
6. The aforesaid preliminary objection has been met by learned counsel for the appellant by advancing two submissions. First, it has been submitted, under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act'), there is no provision to make a second bail application. Though titled as an appeal, the proceeding before this Court in the nature of a second bail application. Once the first bail application had been rejected by this Court, the second bail application would lie only to this Court and to no other Court.
7. Second, reliance has been placed on the decision of the Supreme Court in Criminal Appeal No.1278 of 2021 Hariram Bhambhi Vs Satyanarayan & Anr. decided on 29 October, 2021. It has been submitted, the Supreme Court has also recognized the aforesaid principle and recognized the right of the informant to apply for cancellation of bail.
8. Having heard learned counsel for the parties and having perused the record, the submission advanced by learned counsel for the appellant cannot be accepted. It is true there is no provision under the Act as may specifically contemplate filing of a second bail application, at the same time, it cannot be disputed that the first bail application was also filed not under the provision of the Act but under the provisions of the Code of Criminal Procedure (Cr.P.C.) as are otherwise applicable to the proceedings under the Act.
9. The Act only makes partial modification to the scheme of the Cr.P.C. (with respect to bail proceedings). It alters the right of the accused to apply for bail. In the first place, the bail application may be maintained only before the Special Court contemplated under Section 14 of the Act. If that application be rejected, the accused person may not approach this Court directly applying for bail under Section 439 Cr.P.C. but by way of an appeal under Section 14A of the Act. Relevant to our discussion, Section 14A of the Act reads as below:
"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 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.".
10. The consequence of the aforesaid statutory intervention made by the Act is that the proceeding for bail initiated before the Special Court becomes subject matter of statutory appeal under the Act. That right of appeal may be exercised only once, as is clear from a plain reading of Section 14A of the Act.
11. In the present case, the appellant had filed Criminal Appeal No.1361 of 2021 against the order dated 03.03.2021 passed by the Special Judge. That appeal had been decided by order of dismissal dated 09.08.2021. No cause of action survived or has arisen to the appellant to file another appeal before this Court against that order dated 03.03.2021.
12. As to the further submission of learned counsel for the appellant that the Act does not contemplate filing of a second bail application, it is misconceived. The first bail application itself was filed under Section 439 Cr.P.C. Thus, it may remain open to the appellant to file a second bail application before the Special Court, if such circumstance exists or arises. By way of clarification, it may also be stated, in the event of that (second) application being dismissed, their may accrue to the appellant a fresh right of appeal under Section 14A of the Act. However, the present appeal would remain wholly not maintainable.
13. As to reliance placed on the decision of the Supreme Court in Hariram Bhambhi Vs Satyanarayan & Anr. (supra), the same is wholly distinguishable and inapplicable to the facts of the present case. In that case, the Supreme Court recognized the right of the informant to be noticed before the bail application/appeal filed with respect to offence alleged under the Act is taken up for consideration. That issue is not involved in the present case. Other issue dealt with by the Supreme Court was a right of the first informant to seek cancellation of bail granted by the High Court (without prior service of notice). In absence of prior notice, it was recognized, the informant had a right to seek recall of ex parte bail. Such situation does not exist in the facts of the present case.
14. For the reasons given above, the appeal is found to be not maintainable and it is accordingly, dismissed.
Order Date :- 22.12.2021 S.Chaurasia