Introduction :

In order to curb the social evils of atrocities against the members of Scheduled Castes and Scheduled Tribes an Act namely, “The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act 33 of 1989 was enacted”. After several years major amendment in the said Act came into force with effect from 26.01.2016 through, “The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act 2015 (Act 1/2016)”. 

Section 14-A(2) of SC/ST Act, 1989 says that granting or refusing the grant of bail by the Special Court or Exclusive Special Court can be challenged by way of an appeal before the Hon’ble High Court.

(i)       Whether the statutory remedy u/s. 439 Cr.P.C., has been taken away?

(ii)      Whether it adversely affects the right of the accused?

(iii)     Whether the victim has got special safeguard by this provisions are the subject matter in this article.

Since, the statement of objection reasons for the enactment is necessary and only on that basis the new enactment has been coming to effect, the same has been extracted below.

The statement of objects and reasons are given below :

          Statement of Objects and Reasons – The Scheduled Castes and  the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted with a view to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes and to establish Special Courts for the trail of such offences and for providing relief and rehabilitation of the victims of such offences.

2.      Despite the deterrent provisions made in the Act, atrocities against the members of the Scheduled Caste and Scheduled Tribes continue at a disturbing level.  Adequate justice also remains difficult for a majority of the victims and the witnesses, as they face hurdles virtually at every stage of the legal process.  The implementation of the Act suffers due to (a) procedural hurdles such as non-registration of cases; (b) procedural delays in investigation, arrests and filing of charge-sheets; and (c) delays in trial and low conviction rate.

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5.      It is, therefore, proposed to amend the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2014 which, inter alia, provides the following, namely:-

(a)      to amend the long title of the Act so as to provide for the establishment of the “Exclusive Special Courts” in addition to the Special Courts for the trial of the offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes;

(b)     to amend section 2 of the Act and insert certain new definitions like “economic boycott”, “Exclusive Special Court”, “forest rights”, “manual scavenger”, “public servant”, “social boycott”, “victim and witness”;

(c)      to amend section 3 of the Act relating to “Punishments for Offences of Atrocities” so as to provide some more categories of atrocities in the said section for which the same punishment as provided in the said section may be imposed;

(d)     to substitute section 4 of the Act relating to “Punishment for neglect of duties” so as to impose certain duties upon the public servant and to provide punishment for neglect of the duties specified in the said section;

(e)      to amend section 8 of the Act relating to “Presumption to offences” and to provide that if the accused was acquainted with the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise;

(f)       to substitute section 14 of the Act relating to “Special Court” so as to provide that the State Government shall, with the concurrence of the Chief Justice of the High Court, establish an Exclusive Special Court for one or more districts to try the offences under the Act;

(g)      to amend section 15 of the Act relating to “Special Public Prosecutor” so as to insert a new sub-section requiring the State Government to specify an Exclusive Public Prosecutor or appoint an advocate as an Exclusive Special Public Prosecutor for the purpose of conducting cases in Exclusive Special Court; and

(h)     to insert a new Chapter IVA relating to “Rights of Victims and Witnesses” to impose certain duties and responsibilities upon the State for making necessary arrangements for protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.

          Thus, it is clear from the above statement of objects and reasons; the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) came into force. Let us view and discuss Section 14-A(2) of the said Act in terms of the objects and reasons, which brought the said proviso.  Whether the said proviso has satisfied the objects and reasons?  In order to have a better study on the subject, Section 14-A(2) of the Act is extracted hereunder:

          “14-A. Appeals – (1) ……………

          (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.

Discussions      

(1)     Bail is Rule Jail is exception as per the judicial pronouncement by the Hon’ble Apex Court and the various High Courts in India. Now, by way of the amendment, if bail is granted or  refused, the remedy available to challenge the same is by way of an appeal before the Hon’ble High Court.  The main thrust to challenge Section 14-A(2) of SC/ST Act is that if an appeal is rejected thereby the plea of bail by an accused is rejected, the same shall be final and conclusive.  In general, if bail is moved either u/s. 437 or 439 Cr.P.C., on the dismissal of the same; second application for bail can be filed and the same is maintainable. 

(2)     This valuable right conferred on the accused by the Code of Criminal Procedure has been taken away by the introduction of said amendment in Section 14-A(2) of SC/ST Act.  The settled law of the land is that on the change of circumstances an accused can move bail at any number of times, the only criteria is the accused has to satisfy that after the dismissal of earlier order, there must be change in circumstances warranting grant of bail.

(3)     The right to life as guaranteed under Article 21 of Constitution of India has been strengthened by Section 436 to 439 of Cr.P.C.,  Hence, the right to life cannot be easily touched by introducing special provision for bail as an appeal. The fundamental principles enshrined in our Constitution that the person can be deprived of his life and liberty only by procedure established by law and as decided by the Hon’ble Apex Court in Menaka Gandhi Vs. Union of India reported in AIR 1987 SC 597. Thus, the liberty of an individual can be curtailed only by the procedure established by law.  Since, no appeal is permitted after the lapse of 180 days as per Section 14-A(2) of SC/ST Act, it adversely affects the rights of an accused.

(4)     It is pertinent to be pointed out that at no stretch of imagination, an appeal can be filed subsequently after the dismissal.   It is equally important to mention here that if an order rejecting the bail has been passed by the Hon’ble High Court, the accused cannot go back to the subordinate Court to move an application for bail again and thereafter to move an appeal once again. 

(5)     Even from the angle of victim, if we look at Section 14-A(2) of SC/ST Act, does not give any added advantage to the victim. Whether bail is moved u/s. 439 Cr.P.C., or by way of an appeal u/s. 14-A(2) of SC/ST Act does not make out any difference in so far as victim is concerned.  But, there is no provision to cancel the bail if granted u/s. 14-A(2) of SC/ST Act or bail is granted by the Special Court or Exclusive Special Court.

(6)     As per the clear language coined in Section 439(2) Cr.P.C., an order passed under the Chapter bail can be cancelled.  Hence, Section 14-A(2) of SC/ST Act will not come under the purview of Section 439(2) Cr.P.C. So also the bail granted to an accused cannot be cancelled.  This is the negative point to the victim.

Negative points to the victim because of Section 14-A(2) of SC/ST Act :

          If an order of bail u/s. 439 Cr.P.C., is granted in a suitable case, the same may be cancelled on valid grounds by invoking Section 439(2) Cr.P.C. either by the Special Court or by the Hon’ble High Court.  Now, the point for consideration is by virtue of the special provision i.e., Section 14-A(2) of SC/ST Act if an order of bail is granted, can it be cancelled is the bigger question, since there is no provision for the same.  The issue has been raised and decided by the Hon’ble Allahabad High Court in Crl.A.No.3419 of 2017 in Sushil Kumar Vs. State of U.P. and another by order dated 9.5.2018.  It has been held that bail cancellation application is not maintainable, and the same was dismissed.  Paragraph 17 of the order is relevant and the same is given below.

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.    

Whether Section 14-A(2) of SC/ST Act overrides the Cr.P.C.

          Wherever the special Act contains provisions in consistent with the Code of Criminal Procedure, then by virtue of Section 5 of Cr.P.C., the procedure prescribed in the special Law has to be followed.

          In view of decision made in Viswa Mitter of M/s. Vijay                   Bharat Cigarette Stores Vs. O.P. Poddar and Others reported in  (1983)4 SCC 701.

Procedure relating to bail

          Chapter XXXIII-Section 436 to 439 Cr.P.C., deals with bail and anticipatory bail.  Section 439 Cr.P.C., speaks about the special powers of Hon’ble High Court and Court of Session, this special power of the Hon’ble High Court has been taken away by the amended Act.  This is not the object of the new enactment and there is no special reason to introduce the said appeal remedy.  It is needless to say that the law must be clear and it should not give any confusion. 

As per the Section 14-A(2) of SC/ST Act, appeal has to be filed within the time limit prescribed by the Act and as per Section 14-A(3) of the Act, no appeal can be filed after the expiry of period of 180 days.  Since the right to life is involved, to move for bail, there cannot be any time limitation.  So also the Section 14-A(2) of the said Act is to be declared as against the Constitution of India.

Whether principle of res judicata is applicable ?

          No doubt, principle of res judicata is applicable to civil cases only, and bail once dismissed the same can be filed again with new grounds.  Even Writ of Habeas Corpus, challenging the preventive detention can be filed after the first HCP is dismissed on making out new grounds as per the decided cases, taking into consideration of valuable right to life is involved in preventive detention matters.  But, this benefit cannot be extended after dismissal of Criminal Appeal u/s. 14-A(2) of SC/ST Act and outer limit to file an appeal has also been included in the new provision. Hence, the said provision is against the principles of natural justice and Constitution of India.

Whether appeal u/s. 14-A(2) of SC/ST Act can be entertained by condoning the delay of 180 days?

          The said issued has been decided by the Hon’ble Allahabad High Court in Criminal Appeal Defective No. 523 of 2017 between Rohit Vs. State of U.P. and another.  In the said case, the Memo of Appeal was presented beyond 357 days from its prescribed limitation. Whether the said delay can be condoned or to what relief the appellant was entitled.  It has been held that the appeal cannot be entertained.  But, regular bail application is maintainable.

          If not then what will be the remedy available to an accused.  The said amended Act is so silent.  So also the Section 14-A(2) of SC/ST Act is to be reconsidered.  

Conclusion :

The order made in appeal as per the Special Act cannot be recalled or reviewed due to the bar contained in Section 362 Cr.P.C. Viewing from any angle, Section 14-A(2) of SC/ST Act has not satisfied the statement of objects and reasons and so the same is liable to be reconsidered.

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M. KARUNANITHI, B.Sc., M.L.,

Advocate / Former Special Public Prosecutor ‘Q’ Branch CID

32, Law Chambers, High Court Buildings, Madurai – 625 023.

Email – kanlaw1971@gmail.com