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Sushil Kumar vs State Of U.P. & Another on 9 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on: 30.03.2018

Delivered on: 09.05.2018

A.F.R.

Court No.53

Criminal Misc. Bail Cancellation Application No.1 of 2018

On behalf of informant/ complainant

In

Case :- CRIMINAL APPEAL No. – 3419 of 2017

Appellant :- Sushil Kumar

Respondent :- State Of U.P. Another

Counsel for Appellant :- Krishna Murari Tripathi,Dileep Kumar,Raj Kumar Singh

Counsel for Respondent :- G.A.

Hon’ble J.J. Munir,J.

1. Heard Sri Krishna Kant Dwivedi, learned counsel for the appellant in Criminal Misc. Bail Cancellation Application No.1 of the 2018 and Sri Indrajeet Singh Yadav, learned AGA on behalf of the State on the question of maintainability of the present application.

2. This application has been made on behalf of Jai Singh Chero representing the victim Savitri Kumari Chero (since deceased), his daughter, who is the first informant of case crime no.52 of 2017, under Sections 376, 506 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kone, District Sonebhadra, seeking cancellation of bail granted by this Court vide judgment and order dated 04.09.2017 by allowing the instant appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ”Act’).

3. The question on which learned counsel for the appellant and learned A.G.A. were heard at length on 30.03.2018 was as to whether an application seeking cancellation of bail granted by this Court in exercise of its appellate jurisdiction under Section 14-A(2) of the Act can be cancelled on an application moved by the informant/ complainant or for that matter anyone who would have that locus to seek cancellation, if it were a case of bail granted by this Court in exercise of its jurisdiction under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ”Code’).

4. The question has arisen in the context of a very special provision for bail under the Act that finds place in Chapter IV of the Act, in particular, Section 14-A of the Act dealing with appeals. It would be gainful to quote the provisions of Sections 14 and 14-A of Chapter IV of the Act. The said provisions read as under:-

“Section 14 – 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, specify for each district a Court of Session to be a Special Court to try the offences under this Act.

14A. (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973, 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, 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.”

5. A perusal of the provisions of Sections 14 and 14-A of the Act generally indicates that the scheme of the Act to invests the Special Courts or Exclusive Special Courts notified or established under the Act to take cognizance of and decided cases relating to offence under the Act. There is not much quarrel on the issue nor does the scheme of the Act, in particular, Chapter IV spare scope for it that it is only the Special Court or Exclusive Special Court that are empowered to try and determine as exclusive fora offences under the Act.

6. A close reading of Section 14-A(2) of the Act leads to the unmistakable conclusion that an application for bail in the first instance is to be heard and determined in relation to an offence under the Act by a Special Court or an Exclusive Special Court and any order passed on a bail application by the Special Court whether granting or refusing bail, provides a right of appeal notwithstanding anything contained in sub-Section (3) of Section 378 of the Code to this Court. Stated differently, an order of the Special Court or Exclusive Special Court granting or refusing bail to an accused in an offence under the Act is final but for a challenge to the said order through the remedy of an appeal to this Court under Section 14-A(2) of the Act.

7. No doubt the provisions of Chapter IV relating to Special Courts and Exclusive Special Courts under the Act are not a complete court and for all other things not mentioned under the Act, the provisions of the Code are to be called in aid as held by me elsewhere in a different context, but relating to the Act in Sachin Thakur Vs. State of U.P., Criminal Appeal No.2561 of 2017 decided on 21.02.2018, wherein it was held in paragraphs 40 and 41 of the judgment as follows:-

“40. Commencing with the meaning of the Code under Section 2(b) of the Act it is noticeable that it has been defined to mean the Code of Criminal Procedure, 1973; the provisions of Section 2(f) of the Act that provide that words and expressions used but not defined in this Act and defined in the Indian Penal Code, the Indian Evidence Act or the Code of Criminal Procedure, as the case may, shall be deemed to have the meaning respectively assigned to them in those enactments. The provisions of Sections 14, 14-A, 15 of the Act spare little doubt that the Act makes special provision for certain things in matters of trial and appeal for offence punishable under the Act but does not provide a complete Code for every detail of proceedings of different kinds before the Special Court or the Exclusive Special Court or for that matter before the Court entitled to hear appeals from judgments or orders of a Special Court or Exclusive Special Court. One particular index to the aforesaid scheme of the Act are the provisions of Section 15(5) of the Act, that have been extracted hereinbefore, a perusal of which shows that the Act assumes the existence, understanding and mechanism of certain proceedings of various kinds and steps in the course of those proceedings when it speaks about bail, discharge, release, parole, conviction, sentence or acquittal, none of which are matters even remotely defined under the Act much less provided for in detail.

41. Looking to the scheme of the Act the view taken in Bhura Lal (supra) to the effect that there is no doubt that in matters for which procedure has not been prescribed by the Act the procedure prescribed by the Code would apply, and, further that the Special Court under Section 14 of the Act trying offences is enjoined to follow the procedure prescribed by the Code subject to the provisions of the Act. A fortiori the same principle would apply to the hearing of appeals from judgments and orders passed by the Special Court or the Exclusive Special Court to which the provisions of the Code would apply in relation to all matters prescribed by the Code governing appeals subject to express provisions of the Act to the contrary.”

8. The issue involved in the present case, however, is about something that is exclusively provided for under the Act and not at all even envisaged under the Code, and, that is an appeal from an order granting or refusing for bail. The judgment in appeal by the Appellate Court, the nature of that appellate jurisdiction under Section 14-A(2) of the Act and remedies against a judgment in appeal under the Act; and, further limited to the issue in hand, the right to seek cancellation of bail granted by virtue of a judgment rendered in appeal under Section 14-A(2) of the Act.

9. It may be mentioned here that for a proposition of law there is singular unanimity of authority that there is no power with a Court exercising criminal jurisdiction to review its judgments or orders in any manner, the only exception recognized under the Code is correction of clerical errors or arithmetical mistakes. In this connection the law laid down, to refer to the view amongst the consistent chain of authority that there is no power to review available to a criminal court, even in the exercise of inherent powers of this Court under Section 482 Cr.P.C., the decision in Moti Lal Vs. State of M.P., 2012 (11) SCC 427 is a clear guidance by the Hon’ble Supreme Court that the bar contained in Section 362 Cr.P.C. is absolute and after a judgment is signed even the High Court in exercise of its inherent powers under Section 482 Cr.P.C. cannot review or alter the same. It has been held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment is subject what is “otherwise” provided by this Code or by any other law for the time being enforced. These words have been interpreted by their Lordships of the Hon’ble Supreme Court in Suraj Devi Vs. Pyare Lal, 1981(1) SCC 500 to express provisions of the law alone to be found in the Court or other law authorising alteration or review of the judgment. The inherent power of the Court cannot be invoked to draw upon this niche carved out under Section 362 Cr.P.C. to review or alter a judgment.

10. The power of the Court exercising criminal jurisdiction to do a change in a judgment is confined by dint of Section 362 Cr.P.C. to a clerical or arithmetical error occasioned by an accidental slip or omission by the Court. There are authorities which speak about recall of an order made by the Court in exercise of criminal jurisdiction, but those are generally confined to cases where an order prejudicial to a party has been passed without hearing that party or in default of his appearance, for which good cause is shown; in that case the otherwise firm rule against review embodied in Section 362 of the Code would not apply as held in Vishnu Agarwal Vs. State of Uttar Pradesh and another, 2011(14) SCC 813.

11. The case in hand is certainly not one where the applicant has come forward with a case that there is an order passed in default of his appearance. He has come up invoking the power to cancel bail already granted on ground of threat extended by the accused in violation of the conditions of bail granted to him and misuse of that liberty. Exercise of that power, in absence of a provision “otherwise” provided in the Code or by any other law for the time being in force would in the opinion of this Court firmly bar the jurisdiction of this Court to review the judgment rendered in this appeal granting bail under Section 14-A(2) of the Act, which is placed by Section 362 of the Code.

12. The power to seek cancellation of bail otherwise granted by a Court of criminal jurisdiction under Section 439 Cr.P.C. is also not available as a review of the order granting bail. It flows from a different statutory right conferred by Section 439(2) of the Code, which reads as under:-

“439. Special powers of High Court or Court of Session regarding bail.

(1) x x x x x x x

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

There is a like power available to the Court of the Magistrate to cancel bail under Section 437(5) of the Code that reads thus:-

“437. When bail may be taken in case of non-bailable offence.

(1) x x x x x x x

(2) x x x x x x x

(3) x x x x x x x

(4) x x x x x x x

(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) x x x x x x x

(7) x x x x x x x”

13. Thus, under the Code the power to cancel bail is not exercised by the Court of the Magistrate, the Court of Sessions or this Court as a power of review, which a court of criminal jurisdiction does not have, but as a specific statutory power conferred to be exercised within the parameters of that power to cancel bail already granted by the Court with a direction that the person enlarged be arrested and committed to custody. The power to cancel bail, therefore, exercised generally by criminal courts, whether it be a Magistrate, Court of Sessions or this Court comes from specific provisions of Section 437(5) or 439(2) of the Code, and, in the case of bail granted by this Court by virtue of the powers under Section 439(2) of the Code specifically.

14. The proposition of law that bail granted under a special and different provision of the Code cannot be cancelled by a resort to the power under Section 439(2) of the Code, was held by the Bombay High Court while dealing with a case of bail granted under Section 330 of the Code that was cancelled in exercise of powers under Section 439(2) of the Code to be impermissible in Amar Singh Vs. State of Maharashtra, 2006, CriLJ, 1538, where it has been held:-

“5. I have carefully considered the rival submissions. It may be seen that Chapter XXV deals with the accused persons who are of unsound mind and who are incapable of making their defence. Section 330 in the said Chapter provides for their release on sufficient security being given, irrespective of the nature of the offence. In Chapter XXV of the Code of Criminal Procedure, power of cancellation of bail is not specifically given to any Court. Unlike Chapter XXXIII wherein sub-Section (2) of Section 439 empowers the Courts to cancel the bail. But again the power given under sub-Section (2) of Section 439 is restricted to the bail granted under Chapter XXXIII only which clearly shows that the power of sub-Section (2) of Section 439 cannot be used for cancelling the bail granted under Chapter XXV.”

15. On a plain reading of the statutory provisions as well as guidance of authority, it brooks little doubt that the power to cancel bail is in no way inherent in the Court that grants bail. The power of cancellation, where available, is traceable to a different and distinct statutory provision, may be part of the same provision, that empowers the Court to grant bail, but flowing from a different and distinct source.

16. To sum up, thus, in the opinion of this Court, the power to cancel bail can neither be exercised in the nature of an exercise of a power of review or as an inherent power that is a concomitant of the power in the exercise of which bail has been granted. The said power that is to say the power to cancel bail, where available is to be traced to a particular statutory provision, and, is in no way available as a power of review or as a facet of power to grant bail.

17. Turning to the provisions of Section 14-A(2), the powers exercised by appellate court to grant bail are generically different from those exercised under Section 439 of the Code that are original and concurrent (with the Sessions Judge). By contrast the powers under Section 14-A(2) of the Act are appellate powers exclusively from orders granting or refusing bail. The powers under Section 14-A(2) of the Act when exercised bring about a final determinative expression of opinion and judgment in appeal under Section 14-A(2) of the Act. In the context of this, power, in the opinion of this Court, there is no statutory source for a power of cancellation to be exercised like those available to the Court under Section 439(2) of the Code when dealing with a bail application under the said provision.

18. Some of the similar circumstances about the maintainability of a bail application under Section 439 of the Code, where the First Information Report was registered before the date of commencement of Amendment Act No.1 of 2016, amending the provisions of the Act and introducing provisions amongst others of Section 14-A(2) of the Act, this Court in Uttam Jaiswal Vs. State of U.P., Criminal Misc. Bail Application No.41764 of 2017 decided on 07.11.2017, had occasion to consider the issue though not directly but certainly involving some expression of opinion, that would have bearing on the issue in hand. Paragraph 9 of the said judgment reads as under:-

“The controversy raised with regard to provisions of Section 14A/15A etc. of S.C./S.T. Act inserted by way of Amendment Act 1 of 2016 w.e.f. 26.1.2016 being not retrospective has been totally misunderstood by the applicant. The only effect of above provisions having not been made retrospective will be that, upon an order on bail application passed by the Special Judge under S.C./S.T. Act rejecting or allowing the same, the aggrieved person if has moved application for bail or for cancellation of bail before this Court prior to 26.1.2016, despite the fact of its being listed for disposal after 26.01.2016 the same shall be competent and may not be rejected in view of above provisions after enforcement of the newly inserted provisions w.e.f. 26.01.2016 against any order passed before or after 25.01.2016 only appeal shall lie as per provisions of Section 14-A of S.C./S.T. Act and no application under Section 439 Cr.P.C. for bail or for cancellation of bail shall be maintainable or entertainable. In other words since 26.1.2016 and onwards upon passing of any order of allowing or rejecting the bail application by a special Judge under S.C./S.T. Act, including orders passed on or before 26.1.2016, if no application for bail or cancellation of bail has been moved before this Court prior to 26.01.2016, the only available remedy for seeking bail or seeking cancellation of bail, will be by filing appeal within 90 days from the date of order and within a maximum period of 180 days from the order, after which period no appeal can be entertained. Even after expiry of 180 days from the date of order passed by Special Judge, S.C./S.T. Act, no application under Section 439 Cr.P.C. may be maintainable before this Court. It will not be unnecessary to mention that since principle of res-judicata is not applicable to criminal matters (as in civil cases) so upon rejection of bail application the aggrieved person will be at liberty to move another application, on rejection of which he will be having fresh cause of action of filing appeal as prescribed under Section 14A of S.C./S.T. Act.”

(Emphasis by Court)

19. It has, therefore, to be held that this Court having once dealt with and decided an appeal under Section 14-A(2) of the Act it does not retain or have any power to cancel bail granted by the judgment in appeal. Here, a word of caution may be put. The power to cancel bail on grounds generally known to law, as the one that obtains in the present case, such as misuse of liberty of bail by resort to suborning witnesses or not attending trial is different from the power to revoke a bail order on ground, if alleged and established on sound and good evidence, that the bail was obtained by playing fraud. In the latter case, the principle that fraud vitiates every solemn transaction, including proceeding of a Court, might equally apply to a judgment granting bail under Section 14-A(2) of the Act. However, since that issue does not arise on facts, the question is being left open and undealt with.

20. A perusal of the averments in paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25 26 of the affidavit in support of bail cancellation show that the entire plea in the application seeking cancellation are based on suborning witnesses, threatening the prosecutrix by the appellant after being enlarged on bail somuch so that the daughter of the applicant/ prosecutrix died under suspicious circumstances on 18.12.2017 in the night hours, where a suspicion of poisoning her to death has been expressed by the opposite party no.2 in an information to the Superintendent of Police, Sonebhadra, dated 03.01.2018. Thereafter, an application for registration of a case under Section 156(3) Cr.P.C. has also been brought by the second opposite party on 10.01.2018 and dealing with the application the Magistrate has directed registration of a case by the police by an order dated 30.01.2018 passed under Section 156(3) Cr.P.C. The said First Information Report would, of course, be investigated to its logical conclusion, but in the nature of the allegations this Court does not find any power to cancel bail granted by the judgment in the present case.

21. This Bail Cancellation Application is, therefore, held to be not maintainable and is dismissed as such without prejudice to the right of the applicant to seek such other remedies as he may be advised.

Order Date :- 09.05.2018

Anoop/Deepak

 

 

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