A young Shanti Bhushan would attend hearings at the Allahabad High Court during college hours
A young Shanti Bhushan would attend hearings at the Allahabad High Court during college hours
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What the Allahabad HC held on Appeals under Section 14A of SC/ST Act [Read Judgment]

Meera Emmanuel

A Full Bench of the Allahabad High Court has partially struck down Section 14A of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act (‘SC/ST Act’), which was introduced by a 2015 Amendment.

The Court struck down a clause in Section 14A which imposed a 180-day limitation period for preferring appeals against judgments, sentences, bail orders and other orders (except for interlocutory orders) passed by special courts under the SC/ST Act.

However, the remaining provisions under Section 14A have been upheld. Further, the Court also directed the State to demarcate special courts to try cases under the SC/ST Act, as per the 2015 Amendment, within eight weeks.

The judgment was delivered by a Bench of Chief Justice Dilip B Bhosale and Justices Ramesh Sinha and Yashwant Varma. The Bench had been called on to decide on the validity of provisions under Section 14A which deals with appeals in cases under the SC/ST Act, 1989.

The following aspects of the provision were relevant to the case before the High Court:

– Section 14A (1) which lays down that appeals from judgments, sentences or orders, except interlocutory orders, of a Special/Exclusive court trying SC/ST cases would lie to the High Court on facts and law.

– Section 14A (2) which lays down that appeals from bail orders (even though they are interlocutory orders) would also lie to the High Court

– Section 14A (3) which lays down that the appeal should ordinarily be made within 90 days. This limitation period may be extended in the Court’s discretion. However, the second proviso to lays down that no appeals shall be entertained after 180 days.

Importantly, these provisions had an overriding effect over provisions of the Code of Criminal Procedure (CrPC). The provisions ousted included revisional powers of the High Court under Section 397 and general provisions relating to bail under Section 439 of the CrPC.

The questions emerging before the Court ultimately led the Bench to clarify the following:

No constitutional infirmity in ousting CrPC jurisdiction by Section 14A (2)  

Section 14A (2) was challenged primarily because it ousts the concurrent jurisdiction of the High Court under Section 439 CrPC when it comes to the grant of bail.

However, the Court found that this was not a ground to strike down the provision.

It noted that being a special statute, the Court was bound to respect the non-obstante clauses which gave the SC/ST provision an overriding effect over general enactments such as the CrPC. It, therefore, upheld the provision, observing that,

…we cannot possibly lose sight of the fact that the 1989 Act is a special statute and would on basic principles of statutory construction, override any other general enactment which may govern the investigation, enquiry and trial of criminal offences. We also cannot possibly ignore the non obstante clauses employed by the Legislature in the substantive provisions of Section 14A…” 

Moreover, the Bench pointed out that an aggrieved person was not left without remedy if a bail order was granted or refused in SC/ST cases.  Rather,  it was emphasised that Section 14A (2) safeguards and preserves the rights of both the victim as well as the accused in bail matters under the SC/ST Act. The Act only streamlines the conduct of SC/ST cases by creating an appellate forum at the High Court level.

While the legislature has impliedly excluded the powers of the High Court under Section 439 CrPC it has provided to an aggrieved person a substantive right of an appeal both on facts and on law in terms of sub­section (2)…

… It is thus evident that an exhaustive statutory mechanism has been created to safeguard the rights of an aggrieved person. The mere fact that the concurrent jurisdiction of the High Court under section 439 CrPC stands impliedly excluded is clearly not determinative of the issue since a comprehensive and substituted remedy of appeal before the High Court itself is provisioned for.”

180 day limitation period  under Section 14A (3) struck down as manifestly arbitrary 

The Court found that unequivocally extinguishing a person’s right of appeal after 180 days in line with the second proviso to Section 14A (3) of the SC/ST Act was manifestly arbitrary and violated Articles 14 and 21 of the Constitution.

“… it is evident that the second proviso to sub­section (3) unquestionably impairs, subverts and stultifies the right of appeal which must be recognized to inhere in an aggrieved person in the context of criminal/penal proceedings...

… We are also for reasons which follow convinced that the provision is liable to be struck down even on the ground of manifest arbitrariness. There appears to be no legal justification for denuding the aggrieved person of the right of establishing before a superior court that there existed sufficient cause which constrained him from being able to exercise his right of preferring an appeal within the period of limitation prescribed under the 1989 Act.”

The Court, therefore, struck down the proviso, also noting that the projected advantage of speedy trial would clearly pale in comparison to the chilling consequences which would follow if such a limitation period is imposed.

Incidentally, the Court  also noted that there would be no revival of High Court powers under the CrPC if this 180-day limitation period were to run out.

In an earlier case, it had been opined that since there was no express repeal of Section 439 of the CrPC, the High Court’s powers thereunder would revive if the 180 day period under Section 14A of the SC/ST Act were to run out. To the contrary, the Bench held that there was an implied exclusion of such CrPC provisions by the special SC/ST statute.

High Court’s jurisdiction under Articles 226/227 of the Constitution cannot be invoked for appellate matters under Section 14A of the SC/ST Act

The Bench concluded that the inherent and constitutional powers of the High Court are not ousted by Section 14A of the SC/ST Act. However, in line with precedent, the Court noted that such powers under Sections 226 and 227 of the Constitution cannot be invoked, except in rare and exceptional cases to secure justice.

The Court clarified that such powers cannot be invoked for condonation of delay, or in respect of the matters falling under Section 14AA.

“… the principal issue which falls for consideration is whether these powers [under Articles 226/227] would be invoked in respect of causes which can duly fall for resolution within the contours of Section 14A. In our considered opinion the answer to this question must necessarily be answered in the negative.

The Courts are expected to refrain from exercising such inherent powers in appellate matters. As noted by the Court,

Where the judgment, sentence or order is of a character which would be amenable to the appellate powers of this Court as conferred by Section 14A, the High Court recognising the well settled principle of judicial self ­restraint would not invoke its constitutional or inherent powers…

Since the 1989 Act has already been recognised by us to constitute a special enactment and does construct a wholesome correctional avenue in respect of any judgment, sentence or order that may be passed in proceedings under the said Act, the constitutional and inherent powers cannot be invoked in situations covered by Section 14A.”

SC/ST Act overrides High Court’s Revisional Powers under Section 397 CrPC

The Bench pointed out that the Act has expressly ousted the High Court’s revisonal powers under the CrPC.

“… we find that the 1989 Act, both in terms of Section 14A as well as Section 20 overrides the CrPC. This is the evident and manifest legislative intent. The revisional jurisdiction would therefore clearly stand eclipsed and ousted by Section 14A.

Section 14A of the SC/ST Act applicable depending on date of court proceedings

Section 14A of the SC/ST Act, as introduced by the 2015 amendment, came into force with effect from January 26, 2016. This prompted some to question whether offences committed before the said date would also be subject to Section 14A.

The Court clarified that the applicability of this provision would depend not on the date of the offence or its investigation, but rather on when the court proceedings commence.

If the judgment. sentence or order sought to be appealed against was passed after the 2015 amendment came into force, Section 14A would apply.

The Bench held,

The provisions of Section 14A would stand triggered dependent upon the date of the judgment, sentence or order which is sought to be assailed. If the order which is sought to be assailed be one which has come to be passed after 26 January, 2016 then it must be challenged only in accordance with the procedure contemplated and provided for by Section 14A.

Moreover, it was also clarified that even if the judgment/sentence/order was passed before this date, Section 14A would apply if the appeal is made after January 26, 2016.

We further hold that if judgment, sentence or order was passed before 26 January 2016 and was not challenged earlier, against such judgment, sentence or order, after 26 January 2016, an appeal under Section 14A would lie.

 On Special Courts under 1989 SC/ST Act v Special Courts under 2015 Amendment

The 2015 Amendment to the SC/ST Act empowered Exclusive Special Courts established under the amended provisions to directly take cognizance of offences under the Act. Such Courts can only be established by the state after consulting the Chief Justice of the High Court and notifying the same in the official gazette.

Special Courts constituted prior to this, under the 1989 SC/ST Act, can only take cognizance after the concerned Magistrate commits the case as per Section 193 of the CrPC.  They would, however, continue to exercise jurisdiction over SC/ST cases, even after the enactment of the Amendment. As noted by the High Court,

The provisions of Section 14 can, by no stretch of imagination, be viewed as disrobing or divesting these existing Special Courts of their lawful authority. While it is true that the existing Special Courts would have no jurisdiction or authority to directly take cognizance of offences, this does not mean that their authority otherwise to try cases under the 1989 Act has been taken away.

Further, it was also clarified that court proceedings would not automatically be void just because an existing Special Court took direct cognizance of a case. Rather, this would depend on whether such irregularity leads to a failure of justice.

“The impact of a non compliance with Section 193 Cr.P.C. would ultimately be liable to be tested on the anvil of a substantial failure of justice. This position has been lucidly explained by the Supreme Court in Ratiram and Others v State of Madhya Pradesh.…”

Before parting with the matter, the Court also noted that no Special Courts as per the 2015 Amendment have been set up in the State till date.  It, therefore, directed that such Exclusive Special Courts be constituted within eight weeks.

Read the Order:

Allahabad-HC-SC-ST-Judgment-Oct-10-2018.pdf
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