Further, we feel expedient to clarify that in view of Section 14 of the Act, it is the Special Court or the Exclusive Special Court, which is competent to directly take cognizance and try the offences under this Act, after 26.1.2016, the amendment came into force. Now, the question would also arise that after the amendment came into force on 26.1.2016, if any other Court than the Special Court or Exclusive Special Court established or specified under "the Act" may have taken cognizance of an offence under "the Act", whether such irregularity does vitiate the proceedings?
21. Chapter XXXV of the Code of Criminal Procedure, 1973, deals generally with irregular proceedings. Certain irregularities are not treated as vital and fundamental. They are set out in Section 460 of the Code of Criminal Procedure, 1973, which reads thus:
"460. Irregularities which do not Vitiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:--
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;
(f) to make over a case under sub-section (2) of Section 192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."
22. There is distinction between irregularity and illegality. An irregularity may be defined as deviation from or want of adherence to rule or mode of proceeding. An illegality, on the other hand, is an act not authorized by law and it denotes a radical defects going to the root of the matter resulting in failure of justice and incurable in nature.
23. The Hon'ble Supreme Court of India, in the case of Bhoor Singh v. State of Punjab, MANU/SC/0109/1974 : AIR 1974 SC 1256 observed that the Code neither uses the word "illegality" nor defines "irregularity". Thus the Code treats all errors, omissions or defects as irregularities and further need that "illegality can only mean an incurable illegality; incurable because of prejudice leading to a failure of justice".
24. In the case of Willie Slaney v. State of M.P., MANU/SC/0038/1955 : AIR 1956 SC 116, the Hon'ble Supreme Court held as under:
"We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to "substantial" denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice"."
25. Taking into consideration, Section 460 of the Code of Criminal Procedure, 1973 and the judgments rendered by the Hon'ble Supreme Court, referred above, we are of the opinion that the cognizance of the offence under "the Act" taken under Clause (a) or Clause (b) of sub-section (1) of Section 190 of the Code by any other Court than the Special Court or Exclusive Special Court even after 26.1.2016, shall not vitiate the proceedings at all. IN THE HIGH COURT OF PATNA
Cr. Appeal (SJ) No. 832 of 2016
Decided On: 17.02.2017
Ravindra Thakur Vs The State of Bihar
Hon'ble Judges/Coram:
Hemant Gupta, Actg. C.J. and Sudhir Singh, J.
Authored By : Sudhir Singh, Hemant Gupta
Citation: 2017 LAWSUIT PATNA 110
1. This appeal has been filed against the order of refusing bail dated 23.8.2016 passed in B.P. No. 492/2016, by the learned 1st Additional District and Sessions Judge, Buxar, in connection with Buxar SC/ST P.S. Case No. 13/15 dated 3.4.2015, registered under Sections 341, 323, 436, 504 of the Indian Penal Code and Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as "the Act"). In course of hearing, the learned Single Bench of this Court vide order dated 19.1.2017 passed in the present appeal, has referred the matter to be decided by a Division Bench in view of substituted Section 14 and inserted Section 14-A of the Act.
2. The learned Single Bench has referred this matter before the Division Bench for deciding the issue as formulated in paragraph 2 of the order 19.1.2017 passed in the present appeal, which reads thus:
"2. The present controversy relates with maintainability of an appeal under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, relating to the event whereunder cases having been instituted before application of the Amendment Act since 26.1.2016."
3. Such issue has arisen consequent to substitution of Section 14 and insertion of Section 14-A of the Act, which reads thus:
"14. Special Court and Exclusive Special Court.--(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:
Provided that in 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, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences Under this Act:
Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.
(2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible.
(3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing:
Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet.
14-A. 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 than 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."
4. From bare perusal of the amended provisions of the Act as noticed above, it is abundantly clear that as to provide speedy trial of the cases instituted under the Act, the Special Court or Exclusive Special Court are established in the districts. The proviso of Section 14(1) contemplates that the courts so established or specified shall have power to directly take cognizance of offences under this Act. By insertion of Section 14-A(2), it has been provided that against an order of the Special Court or the Exclusive Special Court, granting or refusing bail, an appeal shall lie to the High Court.
5. By virtue of amendment as indicated above, the accused has been given right to file an appeal before this Court against an order of refusing bail of the Special Court or the Exclusive Special Court, at the same time an appeal shall lie also against an order of granting bail by the Special Court or the Exclusive Special Court, at the instance of any aggrieved person.
6. The Special Court or the Exclusive Special Court are established in the districts, in view of the amended Act, which has come into force on 26.1.2016, In the present case, the appellant has been made accused in Buxar SC/ST P.S. Case No. 13/15, instituted on 3.4.2015 and he moved before the learned court of 1st Additional District & Sessions Judge, Buxar, for grant of bail vide B.P. No. 492/16, which came to be rejected vide order dated 23.8.2016. The appellant filed the present appeal on 22.9.2016.
7. Before adverting to the arguments of the learned counsel for the parties, it would be appropriate to examine the nature and scope of filing of appeal envisaged under Section 14-A(2) of the Act. Such appeal is statutory in nature, and right has to be exercised in terms of the statute i.e. the Act, regulating and controlling such right of appeal.
8. In the case of Garikapati Veeraya v. Subbiah Choudhary, MANU/SC/0008/1957 : AIR 1957 SC 540 the Hon'ble Supreme Court has held as under:
"(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date, the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) The vested right of the appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
9. The Hon'ble Supreme Court, in the case of Competition Commission of India v. Steel Authority of India Limited and Another, MANU/SC/0690/2010 : (2010) 10 SCC 744, held to the following effect:
"50. The principle of "appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure" is now well settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being a creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional. Such law does not violate Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain (P) Ltd., v. State Trading Corpn. of India Ltd., MANU/SC/0017/1983 : (1983)3 SCC 75 and Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad, MANU/SC/0300/1999 : (1999) 4 SCC 469.
51. Right of appeal is neither a natural nor an inherent right vested in a party. It is a substantive statutory right regulated by the statute creating it. Kondiba Dagadu Kadam v. Savithbai Sopan Gujar, MANU/SC/0278/1999 : (1999)3 SCC 722 and Kashmir Singh v. Harnam Singh. MANU/SC/7267/2008 : (2008)12 SCC 796 may be referred to on this point. Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party.
52. A statute is stated to be the edict of legislature. It expresses the will of legislature and the function of the court is to interpret the document according to the intent of those who made it. It is a settled rule of construction of statute that the provisions should be interpreted by applying plain rule of construction. The courts normally would not imply anything which is inconsistent with the words expressly used by the statute. In other words, the court would keep in mind that its function is jus dicere, not jus dare. The right of appeal being creation of the statute and being a statutory right does not invite unnecessarily liberal or strict construction. The best norm would be to give literal construction keeping the legislative intent in mind."
10. In the present case, the right of filing an appeal has been conferred to the aggrieved person against the order granting or refusing bail by the Special Court or Exclusive Special Court with effect from 26.1.2016.
11. In view of the amendments made under the Act, by insertion of Section 14-A, the right of appeal would arise only when the order is recorded by the Special Court or the Exclusive Special Court, granting and refusing bail after 26.1.2016. Since the order under challenge in this appeal has been recorded after 26.1.2016, therefore, such order could be challenged by the appellant only by way of appeal, provided under Section 14-A(2) of the Act, if it would have been passed by the Special Court or the Exclusive Special Court.
12. The reckoning date, to decide the maintainability of such appeal would be the date of the order, passed by the Special Court or Exclusive Special Court. either grant of bail or refusal of bail irrespective of the date of institution of the F.I.R. or the complaint.
13. In our considered opinion, if any order has been passed, either granting or refusing bail, in respect of a case instituted for the offence/offences under the Act, prior to date i.e. 26.1.2016, when the amended provision as envisaged under Sections 14 & 14-A of the Act came into force, the same is not amenable to appeal under Section 14-A(2) of the Act.
14. We may point out here that the recourse and the remedy was also available before this Court, prior to the amendment of the Act, under Section 439 of the Code of Criminal Procedure, 1973, against the order granting or refusing bail by the court below, in respect of offences of the Act.
15. In the case of Anant Gopal Sheorey v. State of Bombay, MANU/SC/0046/1958 : AIR 1958 SC 915, Section 342-A of the Code of Criminal Procedure, 1898, introduced by Amending Act 26 of 1954, which enacted that any accused person shall be a competent witness and may give evidence on oath in disproof of the charges. The Hon'ble Supreme Court held it to be applicable to a prosecution which was pending at the time of Amending Act, came into force.
16. We are of the view that an appeal, in terms of Section 14-A(2) of the Act; before the High Court shall lie, only against an order of the Special Court or the Exclusive Special Court, granting or refusing bail, recorded after 26.1.2016. We are also of the view that after 26,1.2016, no court is empowered to adjudge the prayer for bail, in the cases instituted under the Act, except the Special Court or Exclusive Special Court established or specified under Section 14 of the Act.
17. We are also of the view that if anyone has grievance against an order granting or refusing bail being recorded prior to 26.1.2016, in the cases instituted under the Act, the only available remedy before this Court is under Section 439 of the Code of Criminal Procedure, 1973 and if any order refusing bail has been passed by any other court below than the Special Court and Exclusive Special Court, establish or specified under the Act after 26.1.2016, in that case, the only legal recourse available to the accused is to move afresh, for grant of bail before the Special Court and Exclusive Special Court establish or specified under the Act.
18. In view of the above, the issue referred before us by the Single Bench, is answered,
19. As the question of law having been answered, the present criminal appeal is ordered to be posted before the Bench as per roster.
20. Further, we feel expedient to clarify that in view of Section 14 of the Act, it is the Special Court or the Exclusive Special Court, which is competent to directly take cognizance and try the offences under this Act, after 26.1.2016, the amendment came into force. Now, the question would also arise that after the amendment came into force on 26.1.2016, if any other Court than the Special Court or Exclusive Special Court established or specified under "the Act" may have taken cognizance of an offence under "the Act", whether such irregularity does vitiate the proceedings?
21. Chapter XXXV of the Code of Criminal Procedure, 1973, deals generally with irregular proceedings. Certain irregularities are not treated as vital and fundamental. They are set out in Section 460 of the Code of Criminal Procedure, 1973, which reads thus:
"460. Irregularities which do not Vitiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:--
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;
(f) to make over a case under sub-section (2) of Section 192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."
22. There is distinction between irregularity and illegality. An irregularity may be defined as deviation from or want of adherence to rule or mode of proceeding. An illegality, on the other hand, is an act not authorized by law and it denotes a radical defects going to the root of the matter resulting in failure of justice and incurable in nature.
23. The Hon'ble Supreme Court of India, in the case of Bhoor Singh v. State of Punjab, MANU/SC/0109/1974 : AIR 1974 SC 1256 observed that the Code neither uses the word "illegality" nor defines "irregularity". Thus the Code treats all errors, omissions or defects as irregularities and further need that "illegality can only mean an incurable illegality; incurable because of prejudice leading to a failure of justice".
24. In the case of Willie Slaney v. State of M.P., MANU/SC/0038/1955 : AIR 1956 SC 116, the Hon'ble Supreme Court held as under:
"We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal. The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to "substantial" denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice"."
25. Taking into consideration, Section 460 of the Code of Criminal Procedure, 1973 and the judgments rendered by the Hon'ble Supreme Court, referred above, we are of the opinion that the cognizance of the offence under "the Act" taken under Clause (a) or Clause (b) of sub-section (1) of Section 190 of the Code by any other Court than the Special Court or Exclusive Special Court even after 26.1.2016, shall not vitiate the proceedings at all. In view of the above, therefore, all the cases relating to the offences under the Act, pending in the courts below at pre-cognizance and post-cognizance stage, shall be transferred, forthwith, to the Special Court or Exclusive Special Court, established or specified under the Act. The Registrar General of this Court is directed to issue necessary instructions regarding the transfer of cases as indicated above, immediately, to all the judgeships, within the State of Bihar.
Hemant Gupta, Actg. C.J.
I agree.
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