Patna High Court - Orders
Mantu Kumar Singh @ Mantu Singh vs The State Of Bihar on 10 December, 2019
Author: Sudhir Singh
Bench: Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.66140 of 2019
Arising Out of PS. Case No.-32 Year-2019 Thana- NTPC KHAIRA District- Aurangabad
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Mantu Kumar Singh @ Mantu Singh, aged about 39 years, Male, Son of Late
Dadan Singh, resident of Village - Madhe, P.S.- Baram O.P. (Nabinagar),
District - Aurangabad.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
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Appearance :
For the Petitioner : Mr.Santosh Kumar Pandey, Advocate.
For the Opposite Party : Mr.Atul Chandra,A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
CAV ORDER
3 10-12-20191. This application has been filed for grant of bail to the petitioner, who is an accused in N.T.P.C. Khaira Police Station Case No. 32 of 2019, registered on 30.04.2019 for the offences under Sections 342, 223, 224 read with section 34 of the Indian Penal Code, Section 13 (2) of The Prevention of Corruption Act, 1988, and Section 3 (2) (ii) of The SC & ST Act, 1989, and Section 50 (c) of Bihar Prohibition and Excise Act, 2016.
2. The learned counsel for the petitioner submitted that on the basis of said N.T.P.C. Khaira Police Station Case No. Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 2/26 32 of 2019, corresponding Gr. Case No. 504/2019 being instituted before the learned Additional Sessions Judge-VII-cum Special Judge (Excise), Aurangabad. The petitioner moved for grant of bail in the said case which was rejected vide order dated 04.09.2019, passed by the learned Additional Sessions Judge-
VII-cum-Special Judge (Excise), Aurangabad. Thereupon, the petitioner has moved before this Court for grant of bail in connection with the said case, filing the instant application under Sections 439 & 440 of the Code of Criminal Procedure.
3. In course of stamp reporting, the office pointed out the defect that as per sections mentioned in the 1st paragraph of the petition and the F.I.R., the petition may perhaps be converted into Criminal Appeal (S.J.).
4. The learned counsel for the petitioner made an application before the learned Registrar (List) for ignoring the said defect pointed out by the Stamp Reporter mentioning therein that the order of rejection of bail of the petitioner, dated 04.09.2019, having been passed by the learned Special Judge (Excise), Aurangabad, therefore, the said defects be ignored.
5. Thereupon, this matter has come up before this Court for consideration of the validity of the objection as referred above, made by the Stamp Reporter. Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 3/26
6. The prosecution case, in brief, is that the informant who happens to be the S.H.O. of N.T.P.C. Khaira Police Station, recorded his self-statement alleging therein inter-alia that on 30.04.2019, in course of night-patrolling, he searched a Car i.e. Maruti Alto bearing Registration No. BR1AH-3714 and recovered 2000 nos. of pouches of illicit country made liquor kept in the Car. It is further alleged that the petitioner and one Mangal Singh, the facilitator of the offence were occupants in another vehicle i.e. Maruti Breeza bearing Registration No. JH01DJ-3356, and both of them had been arrested and brought to the police station with the said vehicle and put under the police lock-up. One constable namely Rajnish Kumar Ranjan, was deployed outside the lock-up, who went in connivance of the accused and helped them to get away from the lock-up. In lieu of that, the constable was making demand of money from both the accused, an audio of conversation of the constable and the accused was also made viral, which being a criminal misconduct on the part of the said constable. It is further alleged that accused Mantu Singh tempted his Tractor driver namely Shravan Paswan promising him to afford the expenses of marriage of his daughter, thereupon, with the aid of the constable, he managed to put his driver under the police lock- Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 4/26 up, which is an instance of illegal confinement. Accordingly, the prosecution having been launched under various sections of the Indian Penal Code, Section 13 (2) of The Prevention of Corruption Act, 1988, Section 2 (ii) of The SC & ST Act, 1989, and Section 50(c) of Bihar Prohibition and Excise Act, 2016.
It has been further submitted by the learned counsel for the petitioner that the matter is pending before the learned Special Judge (Excise) Aurangabad, who vide his order dated 04.09.2019, refused the prayer for bail made on behalf of the petitioner in connection with the said case.
7. In the facts and circumstances as referred above, the issue arises for consideration of this Court, at this stage, is whether: An order of rejection of bail to an accused by the Special Court (Excise) established under Bihar Prohibition and Excise Act, 2016, in a case instituted for offences under The Prevention of Corruption Act, The SC & ST Act and Bihar Prohibition and Excise Act, apart various sections of the Indian Penal Code, is amenable to appeal in terms of Section 14-A (2) of SC & ST Act.
There is another way of looking at the same issue. As to determine, the source of power to grant or refuse bail in a case, where offences under three Special Acts, i.e. The Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 5/26 Prevention of Corruption Act, The SC & ST Act and Bihar Prohibition and Excise Act, are involved, this Court should decide first that whichever Special Court having competent jurisdiction to try such case.
8. The Hon'ble Supreme Court of India having occasion to decide the issue relating to conflict of jurisdiction between Special Acts operating in the same field. It would be gainful to refer those judgments.
9. In the Case of Sarwan Singh Versus Kasturi Lal reported in AIR 1977, S.C, 265, the Hon'ble Apex Court held as under :-
"20. Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 not for seeking light from it for resolving in ambiguity, for there is none, but for a different purpose altogether. When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, case of such conflict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking & Industrial Co. Ltd., 1956 SCR 603= (AIR Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 6/26 1956 SC 614) the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act 1951 contained such a non obstante clause, providing that certain provisions would have effect "notwithstanding anything inconsistent therewith contained in any other law for the time being in force.........." This Court resolved the conflict by considering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing: "It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein." (p. 615) As indicated by us, the special and specific purpose which motivated the enactment of Section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act."
10. The Hon'ble Supreme Court of India in the Case of Union of India Vs. Ranjeet Kumar Sinha and Another, (2019) 7 SCC 505, held as under:-
Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 7/26 "18. The courts, as a rule, lean against implying repeal unless the two provisions are so plainly repugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in parimateria although in apparent conflict, should also, so far as reasonably possible, be construed to be in harmony with each other and it is only when there is an Irreconcilable conflict between the new provision and the prior statute relating to the same subject-matter, that the former, being the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict.
19. Consolidation and amendment of laws relating to the prevention of corruption is the object of the PC Act whereas consolidation of laws relating to the governance of Assam Rifles for ensuring the security of the borders of India, to carry out the counter-insurgency operations in the specified areas, etc., is the object of the 2006 Act. Since the objects of the two statutes are different and as the applicability of the 2006 Act is restricted to the members of the Assam Rifles, following the aforementioned principles on the presumption against implied repeal, Section 4 of the PC Act and Section 55 of the 2006 Act which are in apparent conflict can be harmoniously construed. This is on the basis that there is no real conflict between the provisions of the two statutes and they can run in parallel lines.
20. It is also pertinent to refer to Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 8/26 the following extract from Sutherland's Statutes and Statutory Construction :- (Ram Chandra MarwaLal Case, SCC p. 59, Para-
48) "48..'A general statute applies to all persons and localities within its jurisdictional scope, prescribing the governing law upon the subject it encompasses, unless a special statute exists to treat a refinement of the subject with particularly or to prescribe a different law for a particular locality. Likewise, where a later statute adapted for a particular locality conflicts with a general law of State-wide application, the special or local law will supersede the general enactment. Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coterminous operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms."
11. A very piquant situation has arisen before this Court, especially in view of the facts that the instant prosecution having been launched under three special Acts and every Act contemplates about establishment of Special Court or designation of Special Judge, for trial of the offences under such Act. Therefore, now this Court would proceed to take notice of the relevant provisions of those Special Acts. The relevant provision of SC &ST Act read thus:-
"Section 2 Definitions :- (1) In this Act, unless the context otherwise requires, -
(bd) "Exclusive Special Court"
Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 9/26 means the Exclusive Special Court established under sub-section (1) of section 14 exclusively to try the offences under this Act;
(d) "Special Court" means a Court of Sessions specified as a Special Court in section 14;
(f) the words and expressions used but not defined in this Act and defined in the Indian Penal Code (45 of 1860), the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973, (2 of 1974) as the case may be, shall be deemed to have the meanings respectively assigned to them in those enactments.
Section 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 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 day-to-
day until all the witnesses in attendance Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 10/26 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.
14-A. Appeals.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 (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.
(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 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 within a period of three months from the date of admission in the appeal.
Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 11/26 Section 20. Act to override other laws. - Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in forced or any custom or usage or any instrument having effect by virtue of any such law."
12. It is apt to quote the relevant provisions of the Prevention of Corruption Act, as under:
"3. Power to appoint special Judges (1) The Central Government or the State Government may, by notification in the. Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely: -
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a). (2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973.
4. Cases triable by special Judges (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 12/26 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, be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
5. Procedure and powers of special Judge (1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973. for the trial of warrant cases by Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge. relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of section 308 of the Code of Criminal Procedure, 1973, be deemed to have been tendered under section 307 of that Code.
(3) Save as provided in sub-sections (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 13/26 provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in subsection (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973, shall, so for as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted. (6) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944).
27. Appeal and revision .-Subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Code of Criminal Procedure, 1973 on a High Court as if the court of special Judge were a court of Session trying cases within the local limits of the High Court.
28. Act to be in addition to any other law .-The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him."
13. The relevant provisions of The Bihar Prohibition Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 14/26 and Excise Act, read thus :
"76. Offences to be Cognizable and Non- Bailable.- (1) All offences under this Act shall be Cognizable and Non-Bailable and provisions of Code of Criminal Procedure, 1973 (Act 2 of 1974) shall apply. (2) Notwithstanding anything mentioned in subsection (1) above, nothing in Section-
360 of Code of Criminal Procedure, 1973 (Act 2 of 1974), Section-438 of Code of Criminal Procedure, 1973 (Act 2 of 1974) and Probation of Offenders Act, 1958 (20 of 1958) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
83. Trial by the Court.- Notwithstanding anything contained in subsection (1) of section-76 of this Act, all offences punishable under this Act shall be tried by the Court of Sessions.
84. Special Courts- (1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure 1973 (Act 2 of 1974), the State Government may, if consider necessary in the public interest, for the purposes of trial of all or any of the offences under this Act, either appoint or designate in every District of the State, Special Court(s) in consultation with the Chief Justice of the High Court.
(2) The Special Court shall be presided over by a Special Judge who is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure 1973 (Act 2 of 1974).
(3) The trial under this Act of any offence by the Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference to the trial of such other case. Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 15/26 (4) All trials and proceedings under the Bihar Excise Act, 1915 (Bihar & Orissa Act II of 1915), pending in any other Court, before the commencement of this Act, shall stand transferred to the Special Courts.
85. Procedure and Power of the Special Judge.- (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrates; (2) Save as provided in sub-section (1), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor;
(3) In particular and without prejudice to the generality of the provisions contained in subsection (2), the provisions of sections- 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a special Judge and for the purposes of the said provisions, the special Judge shall be deemed to be a Magistrate;
(4) A special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted; (5) A special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944);
(6) Notwithstanding anything contained in Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 16/26 the Code of Criminal Procedure, 1973 (2 of 1974), the special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
86. Power to transfer cases to Regular Courts.- Where, after taking cognizance of any offence in this Act, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code of Criminal Procedure, 1973 (Act 2 of 1974) and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
89. Appeal.- Any person aggrieved by any order of the Special Court may, within forty five days from the date of order, prefer an appeal in the High Court.
90. Application of certain provisions of the Code of Criminal Procedure, 1973.- (1) Save as otherwise expressly provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (Act 2 of 1974) relating to arrests, detention, searches, summons, warrants of arrest, search warrants, and the production of persons arrested or articles seized shall apply so far as may be, to arrests, detentions and searches made, summons and warrants issued, and the production of persons arrested or articles seized under this Act."
14. At this juncture, this Court would gainfully refer and discuss the relevant provisions of the Code of Criminal Procedure which read as under :-
"4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 17/26 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
26. Courts by which offences are triable.- Subject to the other provisions of this Code,-
(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
184. Place of trial for offences triable together. Where-
(a) the offences committed by any person are such that he may be charged with and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or
(b) the offence of offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of section 223, the offences may be inquired into or tried by any Court competent to inquire into or try Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 18/26 any of the offences.
218.- Separate charges for distinct offences.- (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub- section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.
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.
223. What persons may be charged jointly. The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same transaction;
(b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) person 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)..................
(f)..................
(g)..................
15. Now, this Court would proceed to examine all the Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 19/26 relevant provisions contemplated under each of the three special Acts, as referred above, relating to trial of offences committed under such Acts. No doubt, every special Act having its own provision regarding establishment of special court for trial of the offences thereunder. Before dealing with the issue on hand, it should be also kept in mind that all the three special Acts, carrying non-obstante/overriding clauses.
Therefore, the issue emerges: whether there is a real and direct conflict between the provisions of these statutes with regard to the jurisdiction to try such cases, which being instituted under above mentioned three special Acts.
As to resolve the issue indicated above, this Court would make its view clear that whether there would be applicability of the 'doctrine of Implied Repeal', in respect of the provisions contemplated with regard to the jurisdiction to try such offences or provisions of the three statutes with regard to the same can run in parallel lines.
On the issue of implied repeal, the Hon'ble Supreme Court of India in the case of Rishikesh Vs. Salma Begum 1995 AIR SCW 2476, has indicated that the test applied for determining repugnancy under Article 254 of the Constitution, may be applied for solving a question of implied repeal and that Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 20/26 it should be seen: whether there is a direct conflict between the two provisions, whether the legislature intended to lay down an exhaustive code in respect of the subject matter replacing the earlier law and whether the two laws occupy the same field.
16. Under The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, no special procedure having been contemplated for trial of the offences under the Act.
This Act is completely silent about the power of the special court established under Section 14 of the Act, to try any offence other than the offences specified under the Act. The Act only envisages that the courts so established or specified shall have power to directly take cognizance of offences under the Act.
Therefore, no such power being conferred to the special court under the SC & ST Act to try any offence other than the offences under that Act.
17. Now coming to the provision for appeal under the SC & ST Act, this Court finds that sub section (2) of Section 14- A contemplates that an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail whereas in the present case, the Special Court designated under The Bihar Prohibition and Excise Act, has passed the order refusing bail to the petitioner. Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 21/26
18. Since, this prosecution has also been launched under Section 13 (2) of the Prevention of Corruption Act, therefore, the provision prescribed under the Act with regard to the power of the Special Judge appointed thereunder for trial of the cases and the procedure applicable to the proceedings before the Special Judge thereunder are required to be examined hereunder.
Section 4 (3) of the Prevention of Corruption Act, says that 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 be charged at the same trial under Code of Criminal Procedure.
In view of sub section (3) of Section 4 of the Prevention of Corruption Act, the issue which requires consideration is that whether the accused can be charged for the offences under Section 3 (2) (ii) of the SC & ST Act and Section 50 (c) of The Bihar Prohibition and Excise Act, at the same trial together with the charge under Section 13 (2) of the Prevention of Corruption Act.
19. From bare reading of Section 218 of the Cr. P.C., itself appears that this section requires a separate charge to be framed for every distinct offence. It nowhere says 'for every Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 22/26 offence' or 'for each offence'. A distinct offence may be distinguished taking into consideration difference in time of their occurrence, or place being different, or victims of crimes being different etc. In the case of Banwarilal Jhunjhunwala Vs. Union of India AIR 1963 SC 1620 the Hon'ble Supreme Court of India has held that 'distinct offence' must have different content from the expression 'every offence' or 'each offence'. Separate charge is required for every distinct offence and not necessarily for 'every' or 'each' offence. Two offences are distinct if they are non-identical and are not in any way interrelated.
Section 220 (1) of the Cr. P.C. also envisages an exception to the basic rule regarding Joinder of Charges. It is an enabling provision which allows the court to try more than one offence in one trial, if such offences are committed in course of the same transaction. The expression 'same transaction' is not defined anywhere in Cr. P.C. But where there is proximity of time or place or unity of purpose and design or continuity of action in respect of series of acts, it may be inferred that they form part of same transaction, though not necessary that everyone of these elements should co-exist for a transaction to be regarded as the same transaction.
Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 23/26
20. Considering the import of Sections 220 & 223 of the Code of Criminal Procedure, it would not be an appropriate case where all the accused persons may be charged jointly at one trial for the offences under the different special Acts. In that view of the matter though the Special Judge appointed under the Prevention of Corruption Act, having power to try any offence other than an offence specified in section 3 of the Act but in the facts and circumstances of the case on hand, all the accused including the petitioner may not be charged at the same trial before the Special Judge designated under the Prevention of Corruption Act. This Court is also of the view that doctrine of implied repeal shall not apply but provisions of the statutes can run in parallel line.
21. As it is evident from the records of the case that the instant prosecution is pending before the Special Court designated under section 84 of The Bihar Prohibition and Excise Act. There is no doubt that provisions of the Code of Criminal Procedure are applicable in the proceedings before the Special Court under the Act except for Section 360 and Section 438 of the Code of Criminal Procedure. Section 85 of the Act further stipulates that Special Judge may take cognizance of the offences without the accused being committed to him for trial Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 24/26 but the procedure prescribed under the Code of Criminal Procedure for trial of warrant case by the Magistrates shall be followed. Sub section (2) of Section 85 further clarifies that the Special Judge shall be deemed to be a 'Court of Session' and provisions of Cr. P.C. shall apply to the proceeding before Special Judge so far as, they are not inconsistent with the Act.
22. Section 85 of the Bihar Prohibition and Excise Act envisages that even after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, in that case it shall transfer the case for trial of such offence to any court having jurisdiction under the Code of Criminal Procedure and it makes further clear that the court to whom such case is transferred may proceed with the trial as if it had taken cognizance of the offences.
Since the Special Court (Excise) designated under the Act having not been conferred such power to try offences under SC & ST Act and Prevention of Corruption Act, therefore, the Special Court (Excise) exercising the power under section 86 of the Act shall transfer the case for trial of such offences to the other Special Courts designated under the respective Special Act, in terms of section 4 (2) and Section 26 of the Code of Criminal Procedure, for which offences the Special Court Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 25/26 (Excise) having no jurisdiction to try and appropriate steps must be taken for trial of the such offences by the court of competent jurisdiction otherwise proceedings would be vitiated.
23. In view of the foregoing discussions and observations, in the opinion of this Court, where an order granting on refusing bail to an accused being passed by the Special Court designated under Bihar Prohibition and Excise Act, 2016, in connection with a case involving offences under SC & ST Act, The Prevention of Corruption Act and Bihar Prohibition and Excise Act, 2016, the same would not be appealable under Section 14-A (2) of the SC & ST Act. In such circumstances the application for bail in terms of Section 439 of the Code of Criminal Procedure would alone be maintainable before the High Court.
24. Therefore, the defect pointed out in course of stamp reporting, is accordingly, ignored and the office is directed to place the matter for admission before the appropriate Bench.
25. This Court would further direct the learned Registrar General, Patna High Court, to place this order before the Hon'ble Chief Justice of Patna High Court in administrative side, so that necessary direction / instruction may be issued after Patna High Court CR. MISC. No.66140 of 2019(3) dt.10-12-2019 26/26 approval of the Hon'ble Chief Justice to all the judgeships of Bihar and the Registry of Patna High Court.
U.K./- (Sudhir Singh, J) U T A.F.R.