Point of Law: availability of the remedy of appeal under sub-section (2) of Section 14-A of the SC and ST Act, it will not be open for the High Court to exercise the original or concurrent jurisdiction under Sections 438 and 439 of Cr.P.C

ORDER :

By an order dated 15th December, 2020, after noticing the conflict of views expressed by two learned Single Judges of this Court, the learned Single Judge referred following question to a larger Bench:

"Whether a criminal petition or an appeal is maintainable against an order of a Special Court or the exclusive Special Court granting or refusing bail?"

This question has been framed in the context of subsection (2) of Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the SC and ST Act"). We are reframing the questions for consideration as under:

(i) Whether an appeal is maintainable under subsection (2) of Section 14A of the SC an ST Act against an order granting or refusing to grant bail?

(ii) If the answer to the first question is in the affirmative, whether the jurisdiction of the High Court under Section 438 and 439 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C") is taken away by virtue of sub-section (2) of Section 14A of the SC and ST Act?

2. We have heard the learned counsel appearing for the appellants/accused and the learned SPP appearing for the State on the aforesaid issue.

SUBMISSIONS

3. The learned counsel appearing for the appellants/accused submitted that sub-section (2) of Section 14-A of the SC and ST Act specifically overrides sub-section (3) of Section 378 of Cr.P.C. Sub-section (3) of Section 378 deals with only an appeal against the acquittal. His submission is that therefore, an appeal against an order granting or refusing to grant bail will not be an appealable order. He also invited our attention to Section 18 of the SC and ST Act which provides that the provisions of Section 438 of the pre-arrest will not apply to any case involving arrest of any person on the allegation of a crime being committed under the SC and ST Act. He invited our attention to paragraph 10 of the decision of the Apex Court in the case of Prathvi Raj Chauhan –v-Union of India and others, AIR 2020 SC 1036 . His submission is that though Section 20 of the SC and ST Act provides for overriding the provisions of any other law for the time being in force which are inconsistent with the provisions of the SC and ST Act, there is no inconsistency between the provisions of Section 438 and 439 of Cr.P.C which confer the concurrent jurisdiction on the Sessions Court and the High Court and the provisions of the SC and ST Act. His submission is that the provisions of Section 438 and 439 of Cr.P.C which confer a power on the High Court to consider the applications for pre-arrest bail or regular bail as the case may be, operate in a different field in the sense that it is not an appeal against the order of the Sessions Court denying the prayer for pre-arrest or bail. The learned counsel would submit that if this Court comes to the conclusion that an appeal under sub-section (2) of Section 14A will lie against the order of the Special Court refusing or granting bail, still the jurisdiction of this Court under Section 438 and 439 of the Cr.P.C. remains intact. Lastly, he submits that in case the appeal under sub-section (2) of Section 14-A is held to be maintainable, this Court will have to decide the issue whether such an appeal will lie before a learned Single Judge or a Division Bench.

4. The learned SPP appearing for the State submitted the provision of sub-section (4) of Section 34 of the Prevention of Terrorism Act, 2002 (for short "the POTA Act") is para materia with the provision of sub-section (2) of Section 14-A of the SC and ST Act. The learned SPP relied upon the decision of the Apex Court in the case of State of Gujarat vs. Salimbhai Abdulgaffar Shaikh and others, (2003) 8 SCC 50and submitted that as held by the Apex Court, in view of the availability of a remedy of appeal under sub-section (2) of Section 14-A of the SC and ST Act, the power of this Court either under Section 438 or 439 of Cr.P.C cannot be exercised. He also relied upon another decision of t