# Chandra Raj @ Chandra v. State of U.P

- **Citation:** (2024) 8 ILRA 15
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Criminal Misc. Bail Application No. 8192 of 2024
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-raj-chandra-v-state-of-u-p-52300
- **Pages:** 11

## Headnote

A. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - S.ection 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act, 1989
- 14-A(2) - An appeal shall lie to the High
Court against an order of the Special Court
granting or refusing bail - Sessions Court/
Special Courts constituted under the
SC/ST Act is duly and well empowered to
consider the offences against the accused
even under IPC. Once the Special Court
constituted under the Act is empowered to
take cognizance and to try offences
together, all the rigors of the SC/ST Act
would apply.
B. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - Section 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act, 1989
- 14-A(2) - FIR under sections 328, 376D, 506 IPC r/w Section 3(2)(v) 2 of SC/ST
Act was lodged - Subsequently, chargesheet was filed, in which, the applicant
was charged for an offence under Sections
328, 376D, 506 IPC only and was not
charged under Section 3(2)(v) of SC/ST
Act - applicant preferred a bail application,
which came to be dismissed by the Special
Court against which, the bail application
before High Court u/s 439 of Cr.P.C. was
filed - Held : An appeal under Section 14-A
(2)
of
the
SC/ST
Act
would
be
maintainable against an order rejecting
the bail application by the Special Court.
(Para 21)

B. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - Section 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act,
1989 - 14-A(2) - FIR under Sections 147,
148, 149, 323, 307, 302, 504, 506, 34
IPC lodged. Subsequently, sections of
SC/ST Act was also added, however, as
against the applicants only charges
under IPC was framed and not under
SC/ST
Act.
Applicants
filed

bail
applications before the Special Court
which was rejected against which, the
Bail Application was filed under Section
439 of Cr.P.C. seeking enlargement on
bail Held : An appeal under Section 14-A
(2)
of
the
SC/ST
Act
would
be
maintainable against an order rejecting
the bail application by the Special Court.
(Para 21)

Dismissed. (E-5)

List of Cases cited:

## Text

8 All. Chandra Raj @ Chandra Vs. State of U.P.
15
against the very intention of the legislation.
As such, instant writ petition succeeds and
is allowed. Order dated 31.05.2024 passed
by the D.D.C. is hereby quashed. Revision
no.0008 of 2024 filed on behalf of Bhoora
Singh (petitioner herein) is restored to its
original number and the parties are
relegated before the D.D.C. to get the
revision decided afresh on merits. It is
expected that the D.D.C. shall decide the
revision
in
accordance
with
law,
expeditiously, preferably within a period of
three months from the date of production of
certified copy of this order.
----------
(2024) 8 ILRA 15
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2024

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Criminal Misc. Bail Application No. 8192 of 2024
And
Criminal Misc. Bail Application No. 8751 of 2024

Chandra Raj @ Chandra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Prashant
Shukla,
Mahendra
Singh
Chaodhary

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - S.ection 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act, 1989
- 14-A(2) - An appeal shall lie to the High
Court against an order of the Special Court
granting or refusing bail - Sessions Court/
Special Courts constituted under the
SC/ST Act is duly and well empowered to
consider the offences against the accused
even under IPC. Once the Special Court
constituted under the Act is empowered to
take cognizance and to try offences
together, all the rigors of the SC/ST Act
would apply.
B. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - Section 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act, 1989
- 14-A(2) - FIR under sections 328, 376D, 506 IPC r/w Section 3(2)(v) 2 of SC/ST
Act was lodged - Subsequently, chargesheet was filed, in which, the applicant
was charged for an offence under Sections
328, 376D, 506 IPC only and was not
charged under Section 3(2)(v) of SC/ST
Act - applicant preferred a bail application,
which came to be dismissed by the Special
Court against which, the bail application
before High Court u/s 439 of Cr.P.C. was
filed - Held : An appeal under Section 14-A
(2)
of
the
SC/ST
Act
would
be
maintainable against an order rejecting
the bail application by the Special Court.
(Para 21)

B. Criminal Law - Bail - Code of Criminal
Procedure, 1973 - Section 439 - The
Scheduled Castes And The Scheduled
Tribes (Prevention Of Atrocities) Act,
1989 - 14-A(2) - FIR under Sections 147,
148, 149, 323, 307, 302, 504, 506, 34
IPC lodged. Subsequently, sections of
SC/ST Act was also added, however, as
against the applicants only charges
under IPC was framed and not under
SC/ST
Act.
Applicants
filed

bail
applications before the Special Court
which was rejected against which, the
Bail Application was filed under Section
439 of Cr.P.C. seeking enlargement on
bail Held : An appeal under Section 14-A
(2)
of
the
SC/ST
Act
would
be
maintainable against an order rejecting
the bail application by the Special Court.
(Para 21)

Dismissed. (E-5)

List of Cases cited:

1. Ghulam Rasool Khan & ors. Vs St. of U.P. &
ors.; 2022 (8) ADJ 691
16 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Pradeep S. Wodeyar Vs St. of Karn.; (2021)
19 SCC 62

3. Prathvi Raj Chauhan Vs U.O.I. & ors.; (2020)
4 SCC 727

4. Gyanendra Maurya Vs U.O.I. through Secy
Ministry Social Justice and Empowerment &
ors.2023 SCC OnLine All 46

5. Teja Vs St. of U.P. (Criminal Appeal No.3603
of 2019) along with other criminal appeal,
decided on 27.09.2019

6. Pramod Yadav Vs St. of M.P. & ors.; 2021
SCC OnLine MP 3394

7. Sunita Gandharva (Smt.) Vs St. of M.P. &
anr.; I.L.R. [2020] M.P. 2691

8. Pramod Vs St.of U.P. (Criminal Misc. Bail
Application No.2447 of 2024), decided on
01.03.2024

9. Ami Chand Vs St. of H. P.; 2020 SCC OnLine
HP 1840

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Prashant Shukla and Sri
Prateek Tiwari, learned counsel appearing
on behalf of the applicant Chandra Raj @
Chandra and Sri Vivek Gupta holding brief
of Sri Arshad Siddiqui, learned Counsel for
the complainant. Sri Anuj Dayal, learned
Counsel appearing on behalf of the accused
applicants Isha and Shanti as well as Sri
Abhinav Srivastava, learned Counsel for
the complainant. Sri Nikhil Singh, learned
AGA-I for the State in both the cases.

2. As common issues and objections
have been raised in the abovesaid bail
applications, I intend to decide both the
applications by means of this common
order.

3. For the sake of brevity, the facts in
brief as emerge from Bail Application
No.8192 of 2024 are that an FIR No. 300 of
2024, under Sections 328, 376-D, 506 IPC
read with Section 3(2)(v) of SC/ST Act at
Police
Station
Bachhrawan,
District
Raebareli was lodged against all the
accused named in the FIR including the
applicant. Subsequently, a charge-sheet
was filed, in which, the applicant was
charged for an offence under Sections 328,
376D, 506 IPC only and was not charged
under Section 3(2)(v) of SC/ST Act. The
applicant, Chandra Raj preferred a bail
application, which came to be dismissed by
the Special Court constituted under the
provisions of The Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989 (In short "SC/ST Act") vide
order dated 05.06.2024, against which, the
present bail application before this Court
under Section 439 of Cr.P.C. has been
filed. In Bail Application No.8751 of 2024,
the FIR No.233 of 2024, under Sections
147, 148, 149, 323, 307, 302, 504, 506, 34
IPC at Police Station Raunahi, District
Ayodhya. Subsequently, it appears that
sections of SC/ST Act was also added,
however, as against the applicants, Isha and
Shanti only charges under IPC was framed
and not under SC/ST Act. The applicants
filed a bail applications before the Special
Court seeking bail under the sections of
IPC, which came to be rejected vide orders
dated 25.07.2024 and 19.07.2024 by the
same Special Court, against which, the Bail
Application No.8751 of 2024 has been filed
under Section 439 of Cr.P.C. seeking
enlargement on bail.

4. While arguing the bail applications
filed under Sections 439 of the Code of
Criminal Procedure (In short "Cr.P.C.")
read with Section 483 of The Bharatiya
Nyaya Suraksha Sanhita, 2023, it is argued
by the Counsel for the applicants that on
the facts of the case, the applicants have not
8 All. Chandra Raj @ Chandra Vs. State of U.P.
17
been charged under the SC/ST Act and
have been charged only for the offences
under India Penal Code (IPC), as such, the
bail application can be heard and decided
by this Court.

5. A preliminary objection was raised
by the Counsel for the informant and the
learned A.G.A. that in terms of the mandate
of Section 14-A(2) of the SC/ST Act, the
present bail application is not maintainable
under Section 439 of Cr.P.C. and the
applicants, if so desire, can avail the
specific remedy of appeal prescribed under
Section 14-A(2) of the said Act. The said
preliminary objections are advanced in both
the cases by the learned Counsel for the
complainants and learned A.G.A.

6. Sri Prashant Shukla, learned
counsel appearing on behalf of the
applicant, Chandra Raj @ Chandra argues
that in view of the specific judgment on
this point in case of Pramod vs State of
U.P. (Criminal Misc. Bail Application
No.2447 of 2024), this exact objections
were considered by a co-ordinate Bench of
this Court and the bail application was held
to be maintainable under Section 439 of
Cr.P.C. mainly on the ground that in the
criminal cases, in which the accused are not
charge-sheeted under SC/ST Act are liable
to be processed under the provisions of
Cr.P.C. even if the offences are being tried
by the Special Court established under the
SC/ST Act and the Court proceeded to
decide the bail application, vide order dated
01.03.2024. In the light of the said, it is
proposed to be argued that the bail
application is maintainable under Section
439 of Cr.P.C.

7. He further argues that while enacting
the SC/ST Act, there is no specific bar to the
invocation of Section 439 of Cr.P.C., and no
bar under Section 18 to apply for bail is
provided when the offences under SC/ST Act
are prima facie not made out as held by the
Hon'ble Supreme Court in the case of
Prathvi Raj Chauhan vs Union of India and
others; (2020) 4 SCC 727. Person not
implicated under the SC/ST Act should not
be made to suffer all the stringent provisions
of the Act only because of the joint trial.
There is no specific provision under the
SC/ST Act for joint trial or the application of
Cr.P.C. as contained in all other acts. He
draws my attention to Section 14 of the
SC/ST Act, which prescribed for constitution
of Special Courts. He also draws my attention
to similar enactment, wherein, Special Court
has been prescribed to be constituted,
namely, The Prevention of Corruption Act,
1988 (In short "PC Act"), The Prevention of
Money Laundering Act, 2002 (In short "PML
Act")
and
The
Narcotic
Drugs
and
Psychotropic Substances, Act, 1985.

8. Sri Prashant Shukla argues that in
the said enactments, there is a specific
enactment enabling the Special Courts
constituted under the said Acts to hear the
offences under IPC apart from the offences
under the said Acts as prescribed under
Section 43(2) of the PML Act and Section 4
(3) of the PC Act. He argues that while
enacting the SC/ST Act, specific provisions
such as those contained in sub-Section (2)
of Section 43 of the PML Act and subSection (3) of Section 4 of PC Act are
missing and as such, the Special Court
would not have the jurisdiction to try the
offences not arising under the SC/ST Act
as such, the restrictions placed by means
of Section 14-A(2) of SC/ST Act would
also not be applicable and the applicant is
at liberty to avail the remedy of bail
conferred upon the higher court by virtue
of Section 439 of Cr.P.C. He places
reliance on the following judgments:
18 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i). Prathvi Raj Chauhan vs
Union of India and others; (2020) 4 SCC
727;

(ii). Gyanendra Maurya vs Union
of India through Secy Ministry Social
Justice and Empowerment and others;
2023 SCC OnLine All 46;

(iii). Teja vs State of U.P.
(Criminal Appeal No.3603 of 2019) along
with other criminal appeal, decided on
27.09.2019;

(iv). Pramod Yadav vs State of
M.P. and others; 2021 SCC OnLine MP
3394;

(v). Sunita Gandharva (Smt.) vs
State of M.P. and another; I.L.R. [2020]
M.P. 2691;

(vi). Pramod vs State of U.P.
(Criminal Misc. Bail Application No.2447
of 2024), decided on 01.03.2024; and

(vii) Ami Chand vs State of
Himachal Pradesh; 2020 SCC OnLine HP
1840."

9. Sri Anuj Dayal, learned Counsel
appearing on behalf of the applicants, Isha
and Shanti mainly adopts the arguments as
advanced by Sri Prashant Shukla and states
that the Special Court can only try the
offences, which are prescribed as offence
under the said Special Act and nothing
beyond that.

10. On the other hand, Sri Vivek
Gupta, learned Counsel appearing on
behalf
of
the
complainant
of
Bail
Application No.8192 of 2024 argues that
Section 14-A(2), is an enactment which is
at variance with the Cr.P.C. and it provides
for an appellate forum against any order
passed by the Special Court. He argues that
in the present case admittedly the bail
application filed by the applicant was
rejected by the Special Court constituted
under Section 14 of the SC/ST Act and
once an appellate remedy is prescribed, the
normal recourse which is available under
Section 439 of Cr.P.C., cannot be resorted
to. My attention was also drawn on the Full
Bench decision of this Court in the case of
Ghulam Rasool Khan and others vs State
of U.P. and others; 2022 (8) ADJ 691,
wherein
specific
question
"whether
keeping in view the judgment of Rohit
(supra), an aggrieved person will have two
remedies available of preferring an appeal
under the provisions of Section 14-A of the
Act, 1989 as well as a bail application
under the provisions of Section 439 of the
Cr.P.C.?",
was
considered
and
was
answered by the Full Bench holding that
only an appeal would lie.

11. Considering the submissions
made at the Bar and considering the
defence of language used in the statute of
the SC/ST Act and the other statutes such
as PC Act, PML Act etc. wherein there are
similar provisions, it is noteworthy to note
the said sections. Section 14 of SC/ST Act
reads as under:

"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
8 All. Chandra Raj @ Chandra Vs. State of U.P.
19
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 dayto-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."

12. Section 43 of the PML Act reads
as under:

"43. Special Courts.-(1) The
Central Government, in consultation with
the Chief Justice of the High Court, shall,
for trial of offence punishable under
section 4, by notification, designate one or
more Courts of Session as Special Court or
Special Courts or such area or areas or for
such case or class or group of cases as may
be specified in the notification.

Explanation.-In this sub-section,
"High Court" means the High Court of the
State in which a Sessions Court designated
as
Special
Court
was
functioning
immediately before such designation.

(2) While trying an offence under
this Act, a Special Court shall also try an
offence, other than an offence referred to in
sub-section (1), with which the accused
may,
under
the
Code
of
Criminal
Procedure, 1973 (2 of 1974), be charged at
the same trial."

13. Section 4 of the PC Act also reads
as under:

"4. Cases triable by special
Judges. - (1) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), or in any
other law for the time being in force, the
offences specified in sub-section (1) of
section 3 shall be tried by special Judges
only.

(2) Every offence specified in
sub-section (1) of section 3 shall be tried by
the special Judge for the area within which
it was committed, or, as the case may be,
by the special Judge appointed for the case,
or, where there are more special Judges
than one for such area, by such one of them
as may be specified in this behalf by the
Central Government.

(3) When trying any case, a
special Judge may also try any offence,
other than an offence specified in section 3,
with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial.

[(4) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973, the trial of an offence
shall be held, as far as practicable, on dayto-day basis and an endeavour shall be
made to ensure that the said trial is
concluded within a period of two years:

Provided that where the trial is
not concluded within the said period, the
special Judge shall record the reasons for
not having done so:

Provided further that the said
period may be extended by such further
period, for reasons to be recorded in
writing but not exceeding six months at a
time; so, however, that the said period
20 INDIAN LAW REPORTS ALLAHABAD SERIES
together with such extended period shall
not exceed ordinarily four years in
aggregate.] [Substituted by Act No. 16 of
2018, dated 26.7.2018.]"

14. At this instance, although not
cited by any of the Counsel, it is essential
to note a similar provisions for constitution
of Special Courts under Section 30-B of
The Mines and Minerals (Development and
regulation) Act, 1957 (hereinafter referred
to as "the MMDR Act"), which is as under:

"[30B. Constitution of Special
Courts.―(1) The State Government may,
for the purposes of providing speedy trial
of offences for contravention of the
provisions of sub-section (1) or sub-section
(1A) of section 4, constitute, by notification,
as many Special Courts as may be
necessary for such area or areas, as may
be specified in the notification.

(2) A Special Court shall consist
of a Judge who shall be appointed by the
State Government with the concurrence of
the High Court.

(3) A person shall not be
qualified for appointment as a judge of a
Special Court unless he is or has been a
District and Sessions Judge.

(4) Any person aggrieved by the
order of the Special Court may prefer an
appeal to the High Court within a period of
sixty days from the date of such order."

15. On a plain reading of the statutory
provisions prescribed for constituting the
Special Courts, for the furtherance of aims
and objects of the special enactment, it is to
be noticed that the language used in Section
14 of the SC/ST Act is similar to the
language used for constitution of Special
Courts under Section 30-B of the MMDR
Act. Although, it has not been argued by
both the Counsel, it is also essential to
notice the mandate of Sections 220 and 223
of the Cr.P.C., which are quoted below:

"220. Trial for more than one
offence.-(1) If, in one series of acts so
connected together as to form the same
transaction, more offences than one are
committed by the same person, he may be
charged with, and tried at one trial for,
every such offence.

(2) When a person charged with
one or more offences of criminal breach of
trust or dishonest misappropriation of
property as provided in sub-section (2) of
section 212 or in sub-section (1) of section
219, is accused of committing, for the
purpose of facilitating or concealing the
commission of that offence or those
offences,
one
or
more
offences
of
falsification of accounts, he may be
charged with, and tried at one trial for,
every such offence.

(3) If the acts alleged constitute
an offence falling within two or more
separate definitions of any law in force for
the time being by which offences are
defined or punished, the person accused of
them may be charged with, and tried at one
trial for, each of such offences.

(4) If several acts, of which one
or more than one would by itself or
themselves constitute an offence, constitute
when combined a different offence, the
person accused of them may be charged
with, and tried at one trial for the offence
constituted by such acts when combined,
and for any offence constituted by any one,
or more, of such acts.

(5) Nothing contained in this
section shall affect section 71 of the Indian
Penal Code (45 of 1860).

223. What persons may be
charged jointly.-The following persons
may be charged and tried together,
namely:-
8 All. Chandra Raj @ Chandra Vs. State of U.P.
21

(a) persons accused of the same
offence committed in the course of the same
transaction;

(b) persons accused of an offence
and persons accused of abetment of, or
attempt to commit, such offence;

(c) persons accused of more than
one offence of the same kind, within the
meaning of section 219 committed by them
jointly within the period of twelve months;

(d) persons accused of different
offences committed in the course of the
same transaction;

(e) persons accused of an offence
which includes theft, extortion, cheating, or
criminal misappropriation, and persons
accused of receiving or retaining, or
assisting in the disposal or concealment of,
property possession of which is alleged to
have been transferred by any such offence
committed by the first-named persons, or of
abetment of or attempting to commit any
such last-named offence;

(f) persons accused of offences
under sections 411 and 414 of the Indian
Penal Code (45 of 1860) or either of those
sections in respect of stolen property the
possession of which has been transferred
by one offence;

(g) persons accused of any
offence under Chapter XII of the Indian
Penal Code (45 of 1860) relating to
counterfeit coin and persons accused of
any other offence under the said Chapter
relating to the same coin, or of abetment of
or attempting to commit any such offence;
and the provisions contained in the former
part of this Chapter shall, so far as may be,
apply to all such charges:

Provided that where a number of
persons are charged with separate offences
and such persons do not fall within any of
the categories specified in this section, the
Magistrate [or Court of Session] may, if
such persons by an application in writing,
so desire, and if he (or it) is satisfied that
such persons would not be prejudicially
affected thereby, and it is expedient so to
do, try all such persons together.

16. Section 30B of MMDR Act,
which is pari materia to the provisions of
Section 14 of the SC/ST Act, came up for
interpretation before the Hon'ble Supreme
Court in the case of Pradeep S. Wodeyar vs
State of Karnataka; (2021) 19 SCC 62,
wherein, a similar argument was raised
with regard to the power of Special Court
to try for the offences under IPC. It was
specifically argued in para 59, which is as
under:

"59. The appellant had raised a
contention that even if the Special Judge
had the power to take cognizance of the
offence,
he
could
only
have
taken
cognizance of offences under the MMDR
Act and could not have taken cognizance
(and conduct trial) of the offences under
the provisions of IPC. For this purpose, the
counsel for the appellant referred to
Section 30-B(1) of the MMDR Act which
states that the State Government may for
providing speedy trial of offences under
Section 4(1) or Section 4(1-A) of the
MMDR Act constitute Special Courts.
Section 30-B(1) reads as follows:

"30-B. Constitution of Special
Courts.-(1) The State Government may,
for the purposes of providing speedy trial
of offences for contravention of the
provisions of sub-section (1) or sub-section
(1-A)
of
Section
4,
constitute,
by
notification, as many Special Courts as
may be necessary for such area or areas,
as may be specified in the notification."

17. In furtherance of the aforesaid
submissions before the Hon'ble Supreme
Court attention was drawn to the provisions
22 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 4(3) of the PC Act, Section 14(1)
of NI Act and Section 28(2) of POCSO Act
and it was argued that in the said
enactments,
there
existed
specific
provisions for trying the offences under
IPC
also,
no
such
provisions
was
prescribed under Section 30-B of the
MMDR Act. The submission recorded by
the Hon'ble Supreme Court in para 61 of
the said judgment Pradeep S. Wodeyar
(supra) reads as under:

"61. It is contended by the
appellant that the Special Court established
under a statute can try offences under IPC
(or any offence other than the offences
under the statute) only if expressly
provided. To buttress this argument,
Section 4(3) of the PC Act, Section 14(1) of
the NIA Act, and Section 28(2) of the
Protection
of
Children
from
Sexual
Offences Act, 2012 ("the Pocso Act") were
referred to. All the three provisions
expressly provide the Special Court with
the power to try offences other than those
offences specified in the Act. Section 4(3) of
the PC Act reads as follows:

"4. (3) When trying any case, a
Special Judge may also try any offence,
other than an offence specified in Section 3,
with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of
1974), be charged at the same trial."
(emphasis supplied)

Section 14 of the NIA Act read as
follows:

"14. Powers of Special Courts
with respect to other offences.-(1) When
trying any offence, a Special Court may
also try any other offence with which the
accused may, under the Code be charged,
at the same trial if the offence is connected
with such other offence.

(2) If, in the course of any trial
under this Act of any offence, it is found
that the accused person has committed any
other offence under this Act or under any
other law, the Special Court may convict
such person of such other offence and pass
any
sentence
or
award
punishment
authorised by this Act or, as the case may
be, under such other law." (emphasis
supplied)

Section 28(2) of the Pocso Act
provides the following:

"28. (2) While trying an offence
under this Act, a Special Court shall also
try an offence other than the offence
referred to in sub-section (1), with which
the accused may, under the Code of
Criminal Procedure, 1973 (2 of 1974) be
charged at the same trial."
(emphasis supplied)"

18. The Hon'ble Supreme Court
extensively dealt with the said submissions
and also considered the mandate of Section
220 of Cr.P.C., which was specifically not
an offence under the MMDR Act like in the
present case and decided the issue as under:

"C.4.2. Joint trial and implied
repeal

69.
The
general
rule
of
construction is that there is a presumption
against a repeal by implication because the
legislature has full knowledge of the
existing law on the subject-matter while
enacting a law. When a repealing provision
is not specifically mentioned in the
subsequent statute, there is a presumption
that the intention of the legislature was not
to repeal the provision. The burden to
prove that the subsequent enactment has
impliedly repealed the provision of an
earlier enactment is on the party asserting
the argument. This presumption against
implied
repeal
is
rebutted
if
the
provision(s) of the subsequent Act are so
inconsistent
and
repugnant
with
the
8 All. Chandra Raj @ Chandra Vs. State of U.P.
23
provision(s) of the earlier statute that the
two provisions cannot "stand together".
[Harshad
S.
Mehta
v.
State
of
Maharashtra, (2001) 8 SCC 257 : 2001
SCC (Cri) 1447; Justice G.P. Singh,
Principles of Statutory Interpretation (14th
Edn. LexisNexis 2016) 737-738] Therefore,
the test to be applied for the construction of
implied repeal is as follows :

Whether the subsequent statute
(or provision in the subsequent statute) is
inconsistent and repugnant with the earlier
statute (or provision in the earlier statute)
such that both the statutes (or provisions)
cannot stand together. [ Also see, State of
Orissa v. M.A. Tulloch & Company, 1963
SCC OnLine SC 18 : AIR 1964 SC 1284;
Syndicate Bank v. Prabha D. Naik, (2001)
4 SCC 713; State of M.P. v. Kedia Leather
& Liquor Ltd., (2003) 7 SCC 389 : 2003
SCC (Cri) 1642; Lal Shah Baba Dargah
Trust v. Magnum Developers, (2015) 17
SCC 65 : (2017) 5 SCC (Civ) 412;] The test
when applied in the context of this case is
whether Section 30-B of the MMDR Act is
inconsistent and repugnant to Section
220CrPC that both the provisions cannot
go hand in hand.

72. One of the contentions raised
by the counsel for the appellant in Harshad
S. Mehta case [Harshad S. Mehta v. State
of Maharashtra, (2001) 8 SCC 257 : 2001
SCC (Cri) 1447] was that similar earlier
enactments have expressly granted the
power to grant pardon to the Special Court
constituted under the Act and that when the
legislature has deliberately omitted the
inclusion of the provision, it would mean
that the power was not intended to be
granted. The counsel contended that the
Special Court under the Act consists of a
Judge of the High Court, while Section 306
for the purpose of the provision only
enumerates categories of Magistrates. The
Bench observed that an express provision
needs to be made in the subsequent specific
statute only when wider powers or no
powers are intended to be given : (Harshad
S. Mehta case [Harshad S. Mehta v. State
of Maharashtra, (2001) 8 SCC 257 : 2001
SCC (Cri) 1447] , SCC p. 276, para 38)

"38. It is understandable that if
powers wider than the one contemplated by
the Code are intended to be conferred, a
provision to that effect will have to be
made. It does not follow therefrom that in
an altogether different statute, if no special
provision is made, an inference can be
drawn that even where the powers under
the Code and not wide powers were
intended to be conferred, save and except
where it is so stated specifically, the effect
of omission would be that the Special Court
will not have even similar powers as are
exercised by the ordinary criminal courts
under the Code."

75. The Judicial Magistrate First
Class is invested with the authority to try
offences under Sections 409 and 420IPC.
On the other hand, the Sessions Judge is
appointed as a Special Judge for the
purposes of the MMDR Act. If the offences
under the MMDR Act and IPC are tried
together by the Special Judge, there arises
no anomaly, for it is not a case where a
Judge placed lower in the hierarchy has
been artificially vested with the power to
try the offences under both the MMDR Act
and the Code. Additionally, if the offences
are tried separately by different fora
though they arise out of the same
transaction, there would be a multiplicity of
proceedings and wastage of judicial time,
and may result in contradictory judgments.
It is a settled principle of law that a
construction
that
permits
hardship,
inconvenience, injustice, absurdity and
anomaly must be avoided. Section 30-B of
the MMDR Act and Section 220 CrPC can
be harmoniously construed and such a
24 INDIAN LAW REPORTS ALLAHABAD SERIES
construction furthers justice. Therefore,
Section 30-B cannot be held to impliedly
repeal the application of Section 220CrPC
to the proceedings before the Special
Court."

19. As the pari materia provisions
contained in Section 30-B of the MMDR
Act along with other provisions contained
in the said Act has already been interpreted
by the Hon'ble Supreme Court in the said
case Pradeep S. Wodeyar (supra) and the
conclusions to that effect are recorded in
para 108 to the following effect:

"D. The conclusion

108.1. The Special Court does not
have, in the absence of a specific provision
to that effect, the power to take cognizance
of an offence under the MMDR Act without
the case being committed to it by the
Magistrate under Section 209CrPC. The
order of the Special Judge dated 30-122015
taking
cognizance
is
therefore
irregular.

108.2. The objective of Section
465 is to prevent the delay in the
commencement and completion of trial.
Section
465CrPC
is
applicable
to
interlocutory orders such as an order
taking cognizance and summons order as
well. Therefore, even if the order taking
cognizance is irregular, it would not vitiate
the proceedings in view of Section
465CrPC.

108.3. The decision in Gangula
Ashok [Gangula Ashok v. State of A.P.,
(2000) 2 SCC 504 : 2000 SCC (Cri) 488]
was distinguished in Rattiram [Rattiram v.
State of M.P., (2012) 4 SCC 516 : (2012) 2
SCC (Cri) 481] based on the stage of trial.
This differentiation based on the stage of
trial must be read with reference to Section
465(2)CrPC. Section 465(2) does not
indicate that it only covers challenges to
pre-trial orders after the conclusion of the
trial. The cardinal principle that guides
Section 465(2)CrPC is that the challenge to
an irregular order must be urged at the
earliest. While determining if there was a
failure of justice, the courts ought to
address it with reference to the stage of
challenge, the seriousness of the offence
and the apparent intention to prolong
proceedings, among others.

108.4. In the instant case, the
cognizance order was challenged by the
appellant two years after cognizance was
taken. No reason was given to explain the
inordinate delay. Moreover, in view of the
diminished role of the committal court
under Section 209 of the Code of 1973 as
compared to the role of the committal court
under the erstwhile Code of 1898, the
gradation of irregularity in a cognizance
order made in Sections 460 and 461 and
the seriousness of the offence, no failure of
justice has been demonstrated.

108.5. It is a settled principle of
law that cognizance is taken of the offence
and not the offender. However, the
cognizance order indicates that the Special
Judge has perused all the relevant material
relating to the case before cognizance was
taken. The change in the form of the order
would not alter its effect. Therefore, no
"failure of justice" under Section 465CrPC
is proved. This irregularity would thus not
vitiate the proceedings in view of Section
465CrPC.

108.6. The Special Court has the
power to take cognizance of offences
under the MMDR Act and conduct a joint
trial with other offences if permissible
under Section 220CrPC. There is no
express provision in the MMDR Act which
indicates that Section 220CrPC does not
apply to proceedings under the MMDR
Act.

108.7. Section 30-B of the MMDR
Act does not impliedly repeal Section
8 All. Sunil Vs. State of U.P.
25
220CrPC. Both the provisions can be read
harmoniously and such an interpretation
furthers justice and prevents hardship since
it prevents a multiplicity of proceedings.

108.8. Since cognizance was taken
by the Special Judge based on a police report
and not a private complaint, it is not
obligatory for the Special Judge to issue a
fully reasoned order if it otherwise appears
that the Special Judge has applied his mind
to the material.

108.9. A combined reading of the
Notifications dated 29-5-2014 and 21-1-2014
indicate that the Sub-Inspector of Lokayukta
is an authorised person for the purpose of
Section 22 of the MMDR Act. The FIR that
was filed to overcome the bar under Section
22 has been signed by the Sub-Inspector of
Lokayukta Police and the information was
given by the SIT. Therefore, the respondent
has complied with Section 22CrPC.

108.10. The question of whether A1 was in charge of and responsible for the
affairs of the company during the commission
of the alleged offence as required under the
proviso to Section 23(1) of the MMDR Act is
a matter for trial. There appears to be a
prima facie case against A-1, which is
sufficient to arraign him as an accused at this
stage."

20. There appears no reason for this
Court to take a view as canvassed by Sri
Prashant Shukla and Sri Anuj Dayal, learned
Advocates, as such, on the foundation of the
interpretation of the Hon'ble Supreme Court
in the case of Pradeep S. Wodeyar (supra), I
have no hesitation in holding that the
Sessions Court/ Special Courts constituted
under the SC/ST Act is duly and well
empowered to consider the offences against
the accused even under IPC. Once the Special
Court
constituted
under
the
Act
is
empowered to take cognizance and to try
offences together, all the rigors of the SC/ST
Act would apply and keeping in view the Full
Bench decision of this Court in the case of
Ghulam Rasool Khan (supra), an appeal
would be maintainable against an order
rejecting the bail application by the Special
Court, thus, the present bail applications filed
under Sections 439 of Cr.P.C. deserve to be
rejected.

21. Accordingly, both the bail
applications are hereby rejected giving liberty
to the applicants to file an appeal under
Section 14-A (2) of the SC/ST Act, if so
advised.

22. I am not dealing with the judgments
cited by the learned Counsel in view of the
specific
interpretation
of
the
Hon'ble
Supreme court in the case of Pradeep S.
Wodeyar (supra) interpreting a pari materia
provisions which aspect was neither raised
nor considered in any of the referred
judgments as such the bail applications are
rejected with the liberty recorded above.

23. Office is directed to provide
certified copies of the bail rejection orders
and the first information reports on moving
appropriate applications by the Counsel for
the applicants.
----------
(2024) 8 ILRA 25
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 241 of 2007

Sunil ...Appellant
Versus
State of U.P. ...Respondent