Gauhati High Court
Kalyani Bhatacharjee vs Achinta Narayan Choudhury on 4 August, 1986
Equivalent citations: 1987CRILJ1566
JUDGMENT
K. Lahiri, Actg. C.J.
1. This is a reference made by learned Sessions Judge, Karimganj purported to be under Section 395(2) of the Criminal P. C. for our decision as to whether the Executive Magistrates empowered under the Code of Criminal Procedure (Assam Amendment Act, 1983) were legally competent to release an accused person on bail. It should have been the precise question but learned Judge has asked a larger question which has no nexus with the facts and circumstances of the case.
2. The question; is "whether under the provisions of the Code of Criminal Procedure (Assam Amendment) Act, 1983 (Assam Act No. III of 1984), the Executive Magistrates can legally exercise the powers of remand, etc. in respect of any case involving offences which they are not empowered to take cognizance of and try and dispose"? The issue is now a mere academic question.
3. Under Section 395(1) of "the Code" the obligation of the High Court is to resolve a "live question" and not a dead issue. In the instant case bail was granted by the Sub-Divisional Executive Magistrate and the First Informant had applied to learned Sessions Judge for cancellation of the order granting bail by the Sub-Divisional Magistrate (Executive). The learned Sub-divisional Executive Magistrate in purported exercise of the power under the Code of Criminal Procedure (Assam Amendment) Act, 1983 (Assam Act No. III/84) passed the order. However, "the Act" has been repealed by the Assam Repealing Act, 1986. We have noticed that notwithstanding the repeal cases pending before the Executive Magistrates or any other Court or authority stand transferred to "the Court competent to try such cases under the Criminal Procedure Code, 1973", vide Assam Gazette (Extra Ordinary), June 27, 1986. It follows, therefore, that the question as to whether the Executive Magistrate has jurisdiction to remand an accused, grant bail and so forth, are no longer live questions. We are of the opinion that under Section 395(2) of "the Code" the obligation of the High Court is to answer an animate question and not a lifeless question.
4. Further, the validity of the Assam Amendment Act has been questioned in some writ applications under Article 226 of the Constitution. Those applications are pending in this Court. We propose not to pre-judge the question which is sub judice. What is essential and imperative is to consider whether the order granting bail should be cancelled or not. Learned Sessions Judge has jurisdiction to grant or refuse to grant bail and/or to cancel an order granting bail. In the instant case the crucial question is whether on the facts and circumstances of the case the accused should be allowed to go on bail or the order of bail should be cancelled. Even where bail has been granted by a Court not competent to pass the order judicial justice demands that the learned Judge should consider whether the accused is entitled to bail or not. If the accused is entitled to bail, learned Sessions Judge may sustain the order. If learned Judge is in doubt as to whether the Court had jurisdiction to grant bail the accused should not suffer merely because the order was passed by an incompetent Court. Even if the learned Judge finds that the Magistrate had no jurisdiction to grant bail but finds that the accused was entitled to bail he should not refuse the relief to the accused for the fault of the Magistrate. If the learned Judge finds that the accused is entitled to bail, mere lack of jurisdiction of the Court below should not be the cause to refuse justice to the accused. It would amount to punishing an accused for error and omission of the Court below. It would be open for the learned Judge to consider whether the accused was entitled to bail. If he finds that he was entitled to bail but the Magistrate lacked the jurisdiction he may grant fresh bail to the accused.
5. The Assam Repealing Act, 1986 has not completely obliterated the Assam Amendment Act as if it had never been enacted. The Repealing Act does not show any intention to affect any investigation, legal proceeding or remedy provided under the Repealed Act. This is what is evident from the saving Clause contained in the Assam Repealing Act, 1986. By the saving clause of the Assam Repealing Act, 1986 all pending priminal cases before the Executive Magistrate, in respect of which Executive Magistrates assumed jurisdiction under the Criminal Procedure Code (Assam Amendment) Act, 1983, have been transferred to the Judicial Magistrates. It implies that the Orders rendered by the Executive Magistrates were valid and passed by Courts of competent jurisdiction.
6. However, the urgent need is expeditious disposal of the pending application. Learned Judge shall consider as to whether the accused was entitled to bail. If so, he may confirm the order. If the learned Judge finds any difficulty regarding the jurisdiction of the Executive Magistrate he" may in exercise of his original jurisdiction enlarge the accused on bail, if he is so entitled to under the law. Under any circumstance, the accused should not suffer. He must get judicial justice. The order rendered by the Sub-Divisional Executive Magistrate was in purported exercise of his power under the Code of Criminal Procedure (Assam Amendment) Act, 1983. The Act has not been declared ultra vires by the Assam Repealing Act of 1986 and, as such, learned Judge should proceed to consider the order as a valid one made by a competent Magistrate in exercise of the power vested in him by law. In any view of the matter the accused should not suffer for lack of jurisdiction of the learned Magistrate. If he is entitled to bail he should get the order.
7. For the foregoing reasons we hold that the learned Judge should, on the fact and in the circumstances of the case, dispose of the application for cancellation of the order of bail in the light of the observations made above as expeditiously as possible. It may not be understood that we have answered the question touching the validity of "the Act", (since repealed) as the question is sub judice. We thought it fit not to decide the question in exercise of our power under "the Code" as the question of the validity of "the Act" has been impugned in several writ applications pending in this Court. We also do not desire to await decision of the writ petitions, as it might take some time to dispose of the applications. We have considered that it is essentially necessary that the proceedings pending before the learned Sessions Judge should be expeditiously disposed of in the light of the observations made above and answered the reference accordingly.
8. With these observations and direction the Reference is disposed. Send a copy of this order to learned Sessions Judge.