JUDGMENT :

Sanjay K. Agrawal, J.

1. Finding question of public importance involved in the criminal appeal, the learned Single Judge by order dated 14-2-2023, in exercise of power conferred under Rule 32(1) of the High Court of Chhattisgarh Rules, 2007, has referred the matter to the Hon’ble Chief Justice and in turn, the Hon’ble Acting Chief Justice by its order, directed the matter to be placed before DB-II and this is how the matter is before us on the following question of law / stated question: -

Question of Law / Stated Question: -

“Firstly, whether if an appeal against an order passed by a Special Court rejecting an application under Section 439 of CrPC, has been decided on merits or otherwise by this Court, the subsequent appeal under any change circumstances is maintainable before this Court?

If yes, whether this Court can entertain an appeal after the period of limitation as provided under the 2nd proviso clause of the Section 14A of the Special Act?”

Facts leading to this reference: -

2. The appellant herein was arrested in connection with Crime No.362/2022 registered at Police Station Janjgir, District Janjgir-Champa for commission of offence under Section 306 of the IPC and also under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as ‘the POA Act’). The appellant while facing trial before the Special Judge (Atrocities), Janjgir moved an application for grant of bail under Section 439 of the CrPC which the learned Special Judge by order dated 21-7-2022 rejected. Feeling aggrieved and dissatisfied with the order rejecting his application for grant of regular bail, he preferred an appeal before this Court under Section 14A(2) of the POA Act which was registered as Cr.A.No.1193/2022 titled as Dushyant Pandey v. State of Chhattisgarh and the learned Single Judge by order dated 26-9-2022 has dismissed the said appeal on merits. Thereafter, on 28-10-2022, the Special Judge (Atrocities) framed charges against the appellant for the offences under Section 306 of the IPC & Section 3(2)(v) of the POA Act. Upon framing charges, the appellant herein has preferred this appeal under Section 14A(2) of the POA Act stating that charges have been framed against him on 28-10-2022 by the Special Judge after dismissal of his criminal appeal preferred under Section 14A(2) of the POA Act on 26-9- 2022. Though the instant appeal was admitted for hearing by the learned Single Judge on 30-11-2022, but ultimately, the learned Single Judge finding that in Cr.A.No.1104/2021 (Neeraj Jagatramka v. State of Chhattisgarh), decided on 7-2-2022, it has been held that subsequent appeal under Section 14A(2) of the POA Act seeking bail after rejection of first bail application is maintainable, but while deciding the appeal that the question of limitation and the principle of merger has not been brought to the notice of the Court, no finding in that regard has been returned by the Bench deciding Cr.A.No.1104/2021, this reference has been made on the above stated question of law.

Submissions of parties: -

3. Mr. Sumit Singh, learned counsel appearing for the appellant, would submit that on change of circumstances the subsequent appeal would be maintainable like in the present case, charges have been framed after dismissal of appeal by this Court which would amount to change in circumstances and secondly, appeal in terms of Section 14A(2) of the POA Act would be maintainable as there is no bar in entertaining the subsequent appeal against the same order rejecting the bail application though the nomenclature is mentioned as appeal under the POA Act, but in fact it is the concurrent jurisdiction under Section 439 of the CrPC which the Court exercises. He would rely upon the decision of the M.P. High Court in the matter of Ramu @ Ramlal v. State of M.P., ILR (2018) M.P. 163 and the Full Bench judgment of the Allahabad High Court in the matter of In re: Provision of Section 14A of