PRATYUSH KUMAR,J. - (1.) The instant appeal has been filed by the accused-appellant challenging the correctness of bail rejection order dated 25.06.2016 passed by Sri D.K. Tiwari, Additional Sessions Judge/Fast Tract Court No.2, Bulandshahr in case crime no.564 of 2016 (State v. Rohit) under sections 363, 366, 376 IPC, section 4 POCSO Act and section 3(2)5 of Scheduled Castes and Scheduled Tribes Act, 1989.
(2.) The memo of appeal has been presented in the office of the Court on 16.08.2017. The office of the Stamp Reporter has reported the filing of appeal beyond 357 days from its prescribed limitation. Along with the memo of appeal delay condonation application purported to be filed under section 5 of the Limitation Act has been moved, when it was inquired by the Court how the memo of appeal can be entertained after expiry of 180 days as per provisions contained in section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, newly inserted by Amending Act No.1 of 2016 which came into force with effect from 26.01.2016 vide S.O. 152(E) dated 18.01.2016. On this learned counsel for the appellant Sri Ajay Kumar, Advocate, has drawn attention of the Court to an order passed by a Coordinate Bench of this Court on 03.08.2017. For ready reference the order dated 3.8.2017 is quoted herein below: "Counter affidavit on behalf of the complainant, filed today, is taken on record. Learned A.G.A. for the State of U.P. raised a preliminary objection regarding maintainability of this bail application on the ground of availability of alternate remedy of filing appeal under the amended provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. In view of the above, this application is rejected as not maintainable with liberty to the applicant to file appeal, as provided under the amended provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Certified copy of bail rejection order be returned to the learned counsel for the applicant after keeping a photocopy of the same on record." On the basis of this order submission of Sri Ajai Kumar, Advocate, is that only remedy of filing appeal is available to the appellant and he can no more file an application for bail under section 439 of the Code of Criminal Procedure, 1973.
(3.) The law is settled that the substantive rights of the parties would not be affected, during pendency of the litigation by an Act unless it had been given retrospective effect, expressly or by necessary implication. The Constitutional Bench of Hon'ble Apex Court in the celebrated case Garikapati Veeraya v. N. Subbiah Choudhry and others, AIR, 1957 SC 540 has also opined that relevant date for ascertaining substantive rights of the parties is the date of the commencement of the proceedings.;