Andhra HC (Pre-Telangana)
The Superintendent Of Customs ... vs Kannur Abdul Kader Mohammed ... on 6 August, 2014
Author: B. Siva Sankara Rao
Bench: B. Siva Sankara Rao
THE HONBLE Dr. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
06-08-2014
The Superintendent of Customs (Cus-Prev) Hyderabad-II Commissionerate, Hqrs
Office Kendriya Shulk Bhavan, Basheer Bagh, Hyderabad-500004 rep. by Special
P.P. Petitioner/ Complainant
Kannur Abdul Kader Mohammed HaneefaS/o. Sri Abdul Khader Kannur Bayan Kunhi,
Age: 33 years, r/o. Penne House, 1/90(50)Sooramsani Kannur Post,Kasargod
District-671321
Kerala State Respondent/ Accused
Counsel for the Petitioner/ Complainant : Sri U.L.N. Sudhakar
Special Public Prosecutor
for Customs, Hyderabad.
Counsel for Respondent/ Accused : M.Jagadish Kumar,
Counsel for respondent.
<Gist:
>Head Note:
? Cases referred:
01. 1987 ELT 324 (AP)
02. 1997(2) ALT (Crl.) 529 (DB) (AP)
03. 2012(3) SCC Crl.1249
04. 1987(32) ELT 324
05. 1976 (1) Crl LJ page 386
06. 1985(3) (AP) Crl. LJ Short notes 15
07. 1959 Madya Pradesh 147
08. AIR 1984 SC 718
09. AIR 1984 SC 684
10. 1988 Crl.L.J. 1117
11. 1993 Crl.L.J. 2436
12. AIR 1955 SC 196
13. AIR 1964 SC 221
14. AIR 1968 SC 1292
15. AIR 1971 SC 520
16. 1996(4)ALD 490 DB
17. 1995(3) ALD 254
18. 2001 (Crl.) L.J. 111
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
ORDER:
This Criminal Petition is filed against the order in Crl.M.P. No.1464 of 2014 in Crime No.HQ. POR. No.43 of 2014-CUS-PREV., of the Superintendent of Customs, Hydeabad-II, Commissionerate, Basheerbagh.
02. The petitioner herein is the complainant and the respondent is the sole accused of the above referred crime registered against him for the offences punishable under Sections 132 and 135 of the Customs Act, 1962, where he was taken to judicial custody in the pending crime by the Special Judge for Trial of Economic Offences (the designated Court).
03. The accused, who moved for regular bail before the learned Special Judge went unsuccessful, again moved to the Metropolitan Sessions Judge, who granted the regular bail under Section 439 of Criminal Procedure Code, 1973 (in short, Cr.P.C.). By impugning the said order, the present revision is filed seeking to cancel the bail order including on the contention that the learned Sessions Judge has no jurisdiction in granting the bail.
04. Heard both sides.
05. The contentions in support of the averments in application impugning the bail order in seeking for its cancellation are that, the learned Special Judge for Trial of Economic Offences cum- VIII Additional Metropolitan Sessions Judge, Nampally (designated as Special Court) once dismissed the application for bail, in Criminal Petition No.905 of 2014, on 27.03.2014; the learned Metropolitan Sessions Judge could not entertain another bail application, much less, by sitting against to grant the bail covered by the impugned order in Crl.P.M.P. No.1464 of 2014, dated 23.04.2014 and hence the said order is liable to be set aside, more particularly, for want of jurisdiction. The other contentions are that granting of the bail only by imposing a condition of bond of Rs.10,000/- each to the satisfaction of Special Judge for Trial of Economic Offences -cum- VIII Additional Metropolitan Sessions Judge is untenable, also from the fact of not considered of the accused person is from Kerala State and there is every chance of his absconding, the investigation is in progress, the crime is of a serious nature in smuggling of gold, which is a threat to the State Economy and the sureties are also of the State of Kerala and it is difficult to secure presence of accused by serving notice including to the sureties in the event of his absconding.
6. The applicant referred G.O.Rt.No.734 Home (Courts-A) Department, dated 13.03.1981; this Courts Circular Roc.No.1348/SO/1991, dated 21.10.1991; Single Judge expression of this Court reported in Superintendent, Customs And ... vs Elukala Krishnamachari And Ors. (order in Crl.M.P. No.1188 and 1189 of 1986) and another Division Bench expression of this Court reported in Fakhuruddin Sharafali Ampanwala v. State to support the said contentions.
7. Whereas it is the contention of the counsel for the accused respondent to this application before this Court that, the learned Metropolitan Sessions Judge is right in entertaining the bail application and in granting the bail under Section 439 of Cr.P.C. as per the law prevailing and also contended that there is a Judgment of the Apex Court reported in Omprakash and another v. Union of India and another (3 Judges Bench) holding that the offences under Central Excise Act, 1944 and Customs Act, 1962 are bailable irrespective of term of imprisonment fixed for said offences in view of Sections 9-A, 19 and 20 of Excise Act, Sections 104(3) & (4) of the Customs Act and the Excise or Customs Officer cannot make arrest in respect of said offences without warrant from Magistrate concerned in the offences which are bailable; hence there is nothing to interfere with the order granting bail by the learned Metropolitan Sessions Judge. It is also the contention that by virtue of the State reorganisation Act, 2014, without separate notifications of Government, the jurisdiction of Special Court remains stand still.
8. Perused the material on record.
9. Before formulating the points for consideration from the respective contentions supra, it is necessary to detail the factual matrix which reads as follows:
(a) On 20.03.2014, at 3.20 hours, a passenger by name Kannur Abdul Khader Mohammed Haneefa, holder of Indian Passport No.F 0148775 (hereinafter referred to the respondent-accused), who arrived by flight No.QR 500 from Doha to Hyderabad was intercepted by the officers of Customs (Air Intelligence Unit), Rajiv Gandhi International Airport, Shamshabad, Hyderabad in the arrival hall at the Exit Gate after he has passed through the Green Channel, without making any true declaration on disembarkation slip on reasonable belief that he was carrying contraband goods. On examination of the disembarkation slip, it was noticed that he was carrying one hand bag and one checked in baggage and he has not declared any dutiable goods. When the officers questioned the respondent accused whether he was carrying any dutiable goods either in the baggage or checked in bag, the respondent accused replied in negative. Then, screening of the hand bag and checked in bag on the screening machine available in the customs arrival hall, the officers noticed a dark and suspicious metal object image in addition to his used clothes and personal effects in his hand bag. On close examination of the hand bag of the respondent accused i.e. Kannur Abdul Khader Mohammed Haneefa in the presence of witnesses, the officers of Air Intelligence Unit, Rajiv Gandhi International Airport, Shamshabad, Hyderabad recovered one small packet wrapped with brown coloured cellophane tape. On further opening of the said packet, found 16 yellow coloured rectangular metal bars with inscription AL ETIHAD DUBAI-UAE 10 TOLO 999.0 (16 Nos.) on the bars. Thereupon, the officers in the presence of the witnesses and in the presence of the said passenger weighed the said yellow coloured rectangular metal bars on the electronically operated weighing machine available in the International passenger Arrival Hall, RGAI, Shamshabad, Hyderabad and found each bar with weight of 116.63 grams. Thereafter, so as to ascertain the nature of the metal recovered, the officers called upon the services of Sri B.Ram Kumar Jain, approved valuer of jewellery appointed by the Government of India for assaying the items, i.e. gold bars recovered from the hand bag of the passenger. In the presence of the officers and in the presence of the passenger, the assayer i.e. B.Ramkumar Jain, Government Registered Valuer assayed them and vide his report of valuation of jewellery dated 20.03.2014 certified it to be sixteen gold bars of 999 purely weighing 1.866 grams valued at Rs.56,45,860/- (Indian Market Value), in token of the assay having conducted in their presence and the officers as well as the passenger have appended their signatures on the valuation report enclosed to the Mahazar.
(b) Thereafter, when questioned by the officers in the presence of the independent witnesses, the respondent accused while admitting that the recovered metal was gold informed that the same were received by him in Doha to hand over to another peson at his village. The respondent accused further stated, that he secreted the 16 gold bars in the hand bag by wrapping them with yellow colored paper to avoid detection by the customs authorities and to evade payment of Customs Duty. Thereupon the officers on a reasonable belief that the 16 gold bars weighing 1.866 kgs. and valued at Rs.56,45,860/- were smuggled by the respondent accused with an intention to evade payment of customs duty payable thereon, being liable for confiscation under the provisions of the Customs Act, 1962, thus seized the same along with other documents, under the Mahazar, dated 20.03.2014.
(c) The respondent accused, Sri Kannur Abdulkhader Mohammed Haneefa in his statement, dated 20.03.2014 given before the Superintendent of Customs (Air Intelligence Unit) Rajiv Gandhi International Airport, Shamshabad Hyderabad, under Section108 of Customs Act, 1962, stated that he is a taxi driver. He further stated that the said 16 Gold bars weighing 1.866 kgs, were received by him in Doha for handing over to another person in his village. He further admitted in the presence of the witnesses that he has not mentioned about the gold in the disembarkation slip to avoid detection by Customs Department and to evade payment of Customs duty.
(d) Thereupon the officers in the presence of the independent witnesses and the respondent accused seized the contraband following the due process of law as envisaged under the customs Act, 1962. It is averred that the accused confessed to have procured, possessed & transported having entered into the criminal conspiracy for smuggling of the contraband. The respondent accused was arrested and produced before the learned Special Judge for Trial of Economic Offences, Nampally, Hyderabad on 20.03.2014 for contravention of Sections 132 & 135 (1)(c) of the Customs Act, 1962 and the learned Judge remanded the respondent accused to judicial custody from time to time.
(e) From that the respondent accused filed bail petition before the learned Special Judge for Economic Offences cum- VIII Additional Metropolitan Sessions Judge, Nampally, Hyderabad, numbered as Crl.M.P. No.905 of 2014 in HQPOR No.43 of 2014 (Supdt, Cus- Prev) and after the same was ended in dismissal on 27.03.2014; moved another bail application before the learned Metropolitan Sessions Judge, Hyderabad in Crl.M.P. No.1464 of 2014 that was allowed, enlarging the respondent accused on bail on the condition that a personal bond for Rs.10,000/- with two sureties each for a like sum to the satisfaction of the Special Court for Economic Offences cum- VIII Additional Metropolitan Sessions Judge, Hyderabad. While allowing the petition of the respondent, it was observed that the offence is bailable.
10. Now the points arise for consideration are,
01. Whether the Metropolitan Sessions Judge has no jurisdiction to entertain the bail application but for by the learned Special Judge cum- VIII Additional Metropolitan Sessions Judge, which is designated as Special Court, known as Special Judge for Trial of Economic Offences, more particularly by sitting against the dismissal order by the Special Judge or otherwise once bail application is filed before the Special Judge and disposed off and if so, the impugned order of the Metropolitan Sessions Judge is liable to be set aside, with what observations and consequences?
2. To what result?
In Re. Point No.1:
11. Needless to repeat the factual matrix detailed supra, it is important to note that, 11(a). Section 5 of Cr.P.C. reads that, Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Section 4 of Cr.P.C. reads that, Trial of offences under the Indian Penal Code and other laws.
(1) All offences under the Indian Penal Code (45 of 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.
From the above, it is clear that the Criminal Procedure Code on the adjectival and Procedural provisions, equally apply not only for the Indian Penal Code offences, but also for other offences; leave about even in investigating, inquiring or trying into I.P.C. offences and other offences together, but for to the extent saved by the said provisions of any other law to prevail, to say the Cr.P.C. provisions are in that area, general law to the extent special provisions covered those prevail and in the other areas the Cr.P.C. to apply.
11(b). As per Section 6 of Cr.P.C.
6. Classes Criminal Courts:- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
As per Section 9 of Cr.P.C.,
9. Court of Session:
(1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation.- For the purposes of this Code," appointment" does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government.
As per Section 10 of Cr.P.C.,
10. Subordination of Assistant Sessions Judges. (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.
As per Section 11 of Cr.P.C.
11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.
As per Section 12 of Cr.P.C.
12. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. (1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. (2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct. (3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub- division as the Sub- divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub- divisional Judicial Magistrate shall also have and exercise such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub- division as the High Court may, by general or special order, specify in this behalf.
It is also important to say from the designation of the Special Judge for Trial of Economic Offences as Special Judge for Trail of Economic Offences cum VIII Additional Metropolitan Sessions Judge, which is located at Nampally in Hyderabad, it is part of the Court of Sessions also being the VIII Additional Metropolitan Sessions Judge of the Metropolitan Sessions Division of Hyderabad headed by the Metropolitan Sessions Judge. The Metropolitan Sessions Division thereby includes Metropolitan Sessions Judge, Additional Metropolitan Sessions Judge and Chief Judicial Metropolitan Magistrates and Metropolitan Magistrates as the case may be which are part of the Division, from the combined reading of Sections 6 & 9 to 12 Cr.P.C.
12. As per the above provisions, the Special Judge for Trial of Economic Offences, at Nampally, in Hyderabad constituted (for the erstwhile State of A.P. in its entirety), by conferring jurisdiction. Now, from the Andhra Pradesh State reorganization Act, 2014, which came into force with effect from 02.06.2014, needless to say it requires re-designation of two Courts for the two States i.e. one the existing Special Court lying in the area of State of Telangana and the other in any Metropolitan units of the State of Andhra Pradesh like in Visakhapatnam or Vijayawada or the like; as the State is divided into two States after formation of new State of Telangana for the Telangana Region and for the other regions of Rayalaseema and Andhra remains as the State of Andhra Pradesh.
13. In this regard, it is also important to refer the provisions of Section 19 of the Cr.P.C., Subordination of Metropolitan Magistrates. (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate.
As per Section 10 of Cr.P.C., in non metropolitan areas of any state concerned, all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose control they exercise jurisdiction for distribution of business among such Assistant Sessions Judges, and the Sessions Judge may also make provision for the disposal of any urgent application, by conferring in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application.
14. Thus the combined reading of Sections 9, 10 and 12 with Section 19 of Cr.P.C. referred supra, speak the Special Additional Sessions Judge is not subordinate to the Sessions Judge, more particularly, for no similar provision to Section 10 of Cr.P.C., so far as the Additional Sessions Judges concerned with reference to Section 9(3) of Cr.P.C. referred supra.
15. From the above provisions of the Criminal Procedure Code and in this background(supra); coming to the notifications or circular instructions and the judicial pronouncements on the jurisdiction concerned:-
The important Circular is of the Government of Andhra Pradesh (erstwhile) Home (Courts-A) Department, in G.O. Rt.No.734, dated 13.03.1981, from the heading Courts Criminal Creating of Special Judges Court in the cadre of District and Sessions Judge at Hyderabad to deal with the trial of Economic Offences under the specified Central Acts Amendment to notification issued; the references made thereunder were G.O.Ms.No.202, Home (Courts-A) Department, dated 27.03.1980, G.O.Rt.No.1967, Home (Courts-A)Department, dated 04.08.1980, proceedings from the Registrar, High Court, Lr.No.2220/E1/80, dated 29.12.1980 and another letter No.4324/E1/80, dated 07.02.1981. It therefrom reads as follows:
NOTIFICATION In exercise of the powers conferred by the proviso to sub- section(1) Sub-Section 11 read with clause (J) of Section 2 of the Code of Criminal Procedure 1973(Central Act 2 of 1974) and after consultation with the High Court of Andhra Pradesh and in super cession of the Notification issued by the Government of Andhra Pradesh in G.O. Rt.No.1967, Home (Courts-A) Department, dated 4th August, 1980, the Governor of Andhra Pradesh hereby:
1) Specifies the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a special Court for the offences arising under the enactments mentioned in the Annexure hereto; and
2) Establishes a Special Court of Judicial Magistrate of the First Class to try cases, arising under the enactments mentioned in the annexure hereto, even if such cases include offences punishable under the Indian Penal Code, 1860 and any other enactments, if such offences form part of the same transaction and the said court shall be known, as the Court of the Special Judge for Economic Offences.
ANNEXURE
01. The Central Excise and Salt Act, 1944
02. The Imports and Exports (Control) Act, 1947
03. The Wealth Tax Act, 1957
04. The Income Tax Act, 1961
05. The Gold (Control) Act, 1968
06. The Foreign Exchange Regulation Act, 1973
07. The Customs Act, 1962
08. The Companies Profit (Surtax) Act, 1964
09. The Gift tax Act 1958
10. The Export (Quality, Control and Inspection) Act, 1963
11. The companies Act, 1956
12. Monopolies and Restrictive Trade Practices Act, 1969. (By order and in the name of the Governor of Andhra Pradesh) S.Babu Rao Deputy Secretary to Government From the above notification, the preamble of the notification under the heading special creation of the Special Judges Court in the cadre of District and Sessions Judge at Hyderabad to deal with the trial of Economic offences, the notification was issued and the notification is in supercession of the earlier notifications. It reads that the Governor of Andhra Pradesh specifies the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the offences arising under the 12 Acts annexed and establishes a Special Court of Judicial Magistrate of First Class to try cases, arising under the enactments mentioned in the annexure, even if such cases include offence punishable under the Indian Penal Code and any other enactments, and the said Court shall be known, as the Court of the Special Judge for Economic Offences.
16. No doubt, a reading of the above show the notification is in establishing the Special Court of Judicial Magistrate of First Class to try the cases whereas at the heading for creation of the Special Judges Court in the Cadre of District and Sessions Judge and it is not even indicating two Courts constituted one of the Sessions Judge cadre and the other of the Judicial Magistrate of the First Class cadre (for want of any committal procedure under any of the enactments within the purview of Sections 190, 209 & 193 Cr.P.C.), but for instead of from the above of the Special Judge of the cadre of the Sessions Judge is also can exercise the powers of a Magistrate.
17. It is only the Government Order (supra) as on the date prevailing. In this regard and pursuant to which the High Court of Andhra Pradesh in Roc.No.1348/SO/1991, dated 21.10.1991, issued Circular instructions on the subject of entertaining the bail applications in the matters pertaining to the Economic Offences by giving instructions which reads as under:
It has been brought to the notice of the High Court that bail applications pertaining to the Economic Offences Court are entertained by the other Sessions Judges, who has no jurisdiction. As per the G.O. Rt. No.734, Home (Courts-A) Department, dated 13.03.1981, a Special Judges Court in the cadre of District and Sessions Judge at Hyderabad was created to deal exclusively with the trial of Economic Offences under the 12 specified Central Acts.
The Practice of entertaining bail applications by the Courts which have no jurisdiction is quite irregular in view of the above said G.O. issued in exercise of the powers conferred by proviso to Sub-Section(1) of Section 11 read with Clause (j) of Section 2 of the Code of Criminal Procedure Code, 1973.
In this connection, I am directed to invite your attention to the specific orders of the High Court, dated 23.03.1987 passed in Crl.M.P.Nos.1188 and 1189 of 1986 holding that the jurisdiction of the Sessions Divisions in the State of A.P., has been excluded and the Special Judge for Economic Offences alone is competent to consider the application for bail in Income Tax mattes pending trial before the Court for Special Judge for Economic Offences, Hyderabad.
I am, therefore, directed to request you to follow the above decision scrupulously in respect of the mattes pertaining to the Economic Offences. Sd/- Registrar (Admn.) The above circular instructions clearly speak the Special Judge for Economic Offences is in the cadre of the District and Sessions Judge and the other Sessions Judges are having no jurisdiction to entertain any bail applications under the enactments covered by the Government notification after the said G.O. Rt.No.734, dated 13.03.1981.
18. It is to say the Circular instructions also cleared the cloud saying the Special Judge is in the cadre of District and Sessions Judge. The Circular further speaks referring to the earlier circular instructions of this Court, dated 23.03.1987, after the order passed on jurisdictional aspects by this (High) Court in Crl.M.P.No.1188 and 1189 of 1986 holding that the jurisdiction of the Sessions Divisions in the State of Andhra Pradesh, has been excluded and the Special Judge for Economic Offences alone is competent to consider any application for bail in Income Tax matters etc., pending (investigation/enquiry/trial) before the Court of Special Judge for the Economic Offences, Hyderabad. It is, in this context, important to refer the Honble Single Judges expression of this Court in Crl.M.P. Nos.1188 and 1189 of 1986 dated 23.03.1987 reported as Superintendent, Customs and Central Excise, Range-II, Nellore Division, Nellore, v. Elukala Krishnamachari and others . The Court referred Section 11(1) and Clause (J) of Section 2 of the Code of Criminal Procedure with regard to the constitution of Special Courts and its ambit pursuant to the recommendations of the Law Commission in its 47th report, the Central Government since moved the State Government for setting up of a Special Court in the State of Andhra Pradesh for dealing with economic offences. The State Government after consultation with the High Court established the Special Court for economic offences at Hyderabad to deal with 12 specified Central Acts. As the maximum punishment that can be imposed being seven years rigorous imprisonment under the statute, it has become necessary to post a presiding officer in the cadre of District and Sessions Judge as there is no separate cadre of Chief Judicial Magistrate. The Court has been invested with the State wide jurisdiction issued under the proviso to sub-section (1) of Section 11 read with Clause (J) of Section 2 of Code of Criminal Procedure, 1973. The Court of the Special Judge for economic offences is treated as a separate unit by itself and it also held in respect of bails and anticipatory bails for the offence under Section 135 of Customs Act that specifically deal with in that matter, if so, holding jurisdiction by the Sessions Judge being general jurisdiction is ousted in these cases and thus the Sessions Judge (Nellore) is not competent to entertain bail application when additional Judicial Magistrate dismissed the application stating that the Special Judge for Economic Offences alone is competent. Once the Special Judge for Economic Offence alone is competent, bail granted to the accused by the learned Sessions Judge, Nellore was held not legal and thus the bail is to be cancelled under Section 439(2) read with 438 of Cr.P.C. referring to the Government notification in G.O.Rt.No.734, dated 13.03.1981 supra. It was also observed that ouster of jurisdiction of the ordinary court should not be readily inferred is even well accepted; once the same is clearly expressed or by necessary implication by virtue of G.O.Rt.No.734 referring to the 12 enactments in constituting the Special Court by the Government. If the powers conferred on the Magistrate with a right to remand the accused for any of the offence under the 12 enactments specified in the G.O.Rt.No.734; it is only the Special Judge for economic offences, that is competent to consider the application for bail and it is by implication the jurisdiction of the Sessions Judges has been taken away and the same has been conferred on the Special Judge, which is entrusted to try the cases arising under these enactments in the whole of the State of Andhra Pradesh. It is observed that, it has been contemplated that the Chief Judicial Metropolitan Magistrate, though holding the cadre of District and Sessions Judge, is inferior to Sessions Judge as per Criminal Procedure Code; but, the Special Court now constituted under the provisions, is distinct and a different one and as such the Sessions Judge should not have entertained the application for bail (also when it was brought to his notice that the II Additional Judicial I Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases).
As such the Special Judge for Economic Offences alone is the competent to consider the bail application for grant of bail and the bail granted by the learned Sessions Judge is liable to be cancelled is the conclusion, by referring some of the earlier expressions of this Court reported in viz., Ishwar Chand v. State , Kuppu Naidu v. State of A.P. and Gulam Mohd. V. State .
19. Thus the cloud is cleared pursuant to G.O.Rt.No.734 dated 13.03.1981 and from the expression of the High Court and the later circular instructions of this Court by referring to said earlier circular in ROC. No.1348/SO/1991, dated 21.10.1991.
20. It is even later, there is another the expression of the Division Bench of this (High) Court headed by the then Honble the Chief Justice of Andhra Pradesh in Crl.R.C. No.99 of 1996 & Crl.R.C.No.98 of 1996 by common order dated 04.08.1997 on the revision filed by one Fakhruddin Sharafali Ampanwala v. State through Special Public Prosecutor, referring to the expressions in Elukala Krishnamachary (1supra), A.R.Antulay v. R.S. Nayak and R.S. Nayak v. A.R.Antulay , Bharat Traders v. Special Chief Judicial Magistrate, Allahabad and Shri Ravi Nandan Sahay, Sessions Judge, Patna , observed on the query raised as to can an application for pre arrest bail (anticipatory bail) under Section 438 of Cr.P.C. be moved before the learned Metropolitan Sessions Judge, Hyderabad instead of the Court of Special Judge for Economic Offences cum- VIII Additional Sessions Judge, Hyderabad. It was held in answering the query, reiterating the Single Judge expressions in the case of Elukala Krishnamachari (1supra) and G.O.Rt.No.734, dated 13.03.1981 and Cr.P.C. provisions in Chapter XXXIII, particularly, Section 436 to 439, Sections 11 and Section 2(j) read with Section 14 with the latest provisions contained in the Amendment Act, 1978 and the provisions relating to Prevention of Corruption Act where also a Special Judge is of the designated cadre of Sessions Judge with empowerment to take cognizance of the offence directly under Section 190 of Cr.P.C. without any committal under Section 209 Cr.P.C. for taking cognizance at post committal stage under Section 193 Cr.P.C., and the earlier expressions of the Apex Court under Section 5-A of the Prevention of Corruption Act, 1947 - reported in H.N.Rishbud and Inder Singh v. State of Delhi , State of Uttar Pradesh v. Bhagwan Kishore Joshi , S.N. Bose v. State of Bihar and P.Sirajuddin v. State of Madras . All in reference to prevention of Corruption Act and the provisions of Cr.P.C. the then prevailing having referred to the earlier expressions that even in respect of cases which are triable by the Court of Sessions, but then this would create a conflict that can be resolved by treating, although called a Magistrate, the Special Court as the Sessions Court and also referred, in this regard, Sections 26, 28 & 29 of Cr.P.C. regarding the power of Sentence that to be passed by the Court of Sessions and the Chief Judicial Magistrate or Chief Metropolitan Magistrate and the Judicial First Class Magistrate and the Metropolitan Magistrates etc., and concluded ultimately at para 13 that there is no manner of doubt that the Special Court, although called the Special Court of Judicial Magistrate of First Class, is also a Court of Session, and as the Court of Session has all the powers to act under various provisions of Chapter XXXIII of the Code of Criminal Procedure including for entertaining the applications for anticipatory bail under Section 438 of Code of Criminal Procedure. Once the Special Court has the jurisdiction in the matters as above, it would be creating conflict of jurisdiction if in addition to a Court of Session which is specially designated for such matters the regular Court of Session also is recognised as one empowered to grant bail under Cr.P.C. It will be, in our view, not legitimate only to retain the jurisdiction of the Special Court of Economic Offences for all purposes, other than the grant of anticipatory bail and recognise such power of granting anticipatory bail in the Sessions Court of the district in which the offence is allegedly committed of which the Court has otherwise jurisdiction in the matter. Accordingly it was answered as follows:
01. Special Court of Economic Offences being a Court having jurisdiction through out the State is alone empowered to take cognizance of the offences which are referable to the special enactments in the Annexure to the notification under which the Special Court has been created and to act for all purposes in Chapter XXXIII of the Code of Criminal Procedure including for granting anticipatory bail;
02. Jurisdiction of the regular Court of Session to the extent of the offences under the Acts which are mentioned in the annexure to the notification creating the Special Court of Economic Offences is excluded. Persons apprehending arrest for the offences under any of such Acts can move the Special Court of Economic Offences for anticipatory bail and not the regular Court of Session.
Thus the Division Bench expression of this Court also cleared any little cloud if remaining, in its categorical saying of bail application under chapter XXXIII of Cr.P.C., touching any of the offences under the 12 enactments enumerated by the G.O. (supra) is conferring jurisdiction only on the Special Judge for Economic Offences, for the entire State. Thus, that alone got jurisdiction which is the Court of Session as a separate unit including the powers of Magistrate and no other Court including any other Court of Session has any other power to entertain any bail application. Though not necessary thereby, but for reference to say that this Court, in the course of hearing, addressed the Registry as to any other circular instructions after the references supra, in particular, after the Honble Division Bench expression in Fhakruddin Sharafali Ampanwala v. State (2supra). The answer received is in negative, saying no further circulars have been issued in this regard as it appears. In fact one proceeding of this Court in ROC.No.1970/E1/2005 of the Registrar (Vigilance), dated 21.06.2013, supplied by the Registry later speak that, it was addressed to the Metropolitan Sessions Judge, Hyderabad that Money Laundering Act, 2002 - Designation of XXI Additional Chief Metropolitan Magistrates Court Nampally, Hyderabad as Court of Session as per the orders issued by the Government of Andhra Pradesh pursuant to the notification issued by the Government of India extraordinary Part-II, No.1028, dated 08.05.2013 as the Special Court for trial of Offences in respect of all the cases connected with M/s.Satyam Computer Services (SCSL) under Section 9 of Cr.P.C. and G.O.Ms. No.34, Law (LA & J Home Courts C) Department, dated 02.04.2013. It is in fact, the Money Laundering Act, 2002 not specifically covered in the G.O.Rt.No.734 among the annexure - 12 enactments; apart from the same confined to that particular case under trial and not a general conferment of the Special Jurisdiction under the enactment even and thereby, nothing more is required to be discussed with reference to the said proceeding, which is only the existing Court for the limited purpose to deal with the scope of the Act in relation to the crime covered by the Act and other offences that is dealing by a particular court for the purpose of its empowering adjudication of the lis efficaciously, touching the offence covered by the provisions of that Act also. It is also need less to say, but for in the context from a little relevancy that, all the District and Sessions Judges in the State and the Metropolitan Sessions Judges equally, in particular, under Section 11(2) Cr.P.C. are appointed by the High Court to exercise the powers of a Judicial Magistrate of First Class under the Code of Criminal Procedure covered by the High Courts general notification Roc.No.25/SO/74 I dated 14.08.1974 and the same was also referred by sanctifying the same and the subsequent circular instructions of this Court under Section 11(2) of Cr.P.C. in Roc.No.1354/SO/82, dated 21.09.1982, the Additional District & Sessions Judge functioning in the District Head-Quarter also being the Chief Judicial Magistrate for the respective Districts and confers on them all the powers, for no proceedings are separately required for each Additional District and Sessions Judge; and in a dispute raised before a Division Bench of this Court regarding taking of cognizance under Sections 190 read with 200 of Cr.P.C. on a private complaint for the offence under Section 138 of N.I. Act by the Additional District Judge, Nalgonda, when impugned, the same was upheld by the Honble Division Bench of this Court in K.Sudarshana Chari v. G.Saidulu and others holding that the above circular instructions covered the area of taking cognizance even as Judicial Magistrate of First Class under Section 138 of N.I. Act read with 190 of Cr.P.C. by the additional District & Sessions Judge is not illegal and thus there is nothing to impugn the same. In a similar situation in relation to Section 9(2) of Cr.P.C. read with 2(1)(i) Cr.P.C. another Honble Division Bench of this Court in Patel Sudhakar Reddy v. The Registrar (Administration) High Court and Ors. held that the High Court, under Section 9 Sub-Sections (2) and (3) of the Code of Criminal Procedure, shall appoint a Session Judge, Additional Sessions Judge/s and Assistant Sessions Judge/s for every Court of Sessions and the definition of District Judge in Article 236 of Constitution of India including the Sessions Judge is only for a limited purpose of Chapter 6 of Part VI of the Constitution of India and cannot be taken in aid for interpreting the expression here in this context of the lis and reference to the then designation in the cadre of Grade II and Grade I of the then District Judge of Andhra Pradesh State Higher Judicial Service not makes difference and also held that no separate notification need be issued whenever the District Judge is appointed as a Sessions Judge from the general notification in Roc.No.25/SO/74, dated 14.08.1974 that was issued under Section 9 of Code of Criminal Procedure, and further by G.O.Ms.No.518 dated 29.10.1987, the II Additional Metropolitan Sessions Judge of the Metropolitan Sessions Court, Hyderabad is appointed as Additional Judge to exercise jurisdiction of the designated Court constituted for Metropolitan Sessions Division for the offence under TADA Act, 1987 and the said composite notification no way invalid and those are held suffice. There is another circular instruction of the High Court in Roc.No.510/SO-1/2002 dated 02.09.2002, which is as per the Honble Apex Court direction in giving clarifications that the designated the then Additional District Judge as chief Judicial Magistrates (as per the circular instructions referred supra), by virtue of the directions of the Honble Apex Court, the designation of the Senior Civil Judge cum Assistant Sessions Judges as Chief Judicial Magistrates and the Chief Metropolitan Magistrates and also with reference to the understanding of the same in its referring to the Criminal Rules of Practice and the Circulars orders of 1990, in saying amendment to the relevant Rule in that behalf that was stated to be issued shortly. In fact it was also issued in taking care of.
22. It is also necessary to refer in this context the Apex Courts expression in State by Central Bureau of Investigation, Appellant v. S.Bangarappa, Respondent in dealing with the prevention of Corruption Act, 1988 for trial of offences specified under Section 3 of the Act by Special Judge in pointing out the name of the Presiding Judge holding the Court in the notification empowering the Civil and Sessions Judge, Bangalore; it was held by the Apex Court that even if no Court is empowered, the criminal proceedings can be kept in abeyance till Government issues Notification conferring power of competent Court. In fact that difficulty also does not arise in this case as the offence occurred prior to the coming into force of the Andhra Pradesh State Re-organisation Act, 2014 w.e.f. 02.06.2014, apart from the fact that the place of offence is within the newly formed State of Telangana and the designated Court is also within the area of the Stte as per the Act, 2014. Thus, it is only for the offences taken place after dated 02.06.2014 within the jurisdiction of the State of Andhra Pradesh (consisting of Andhra & Rayalaseema regions), a separate notificate is required from the Government concerned conferring jurisdiction on any one or more Courts of the State of Andhra Pradesh and till then, the Registry of the High Court can take care of by issuing necessary circular instructions, pursuant to the Apex Courts expression in S.Bangarappa (supra).
23. From the above, coming to the facts, the panchanama in this case and the crime registered in this case show the accused person apprehended with 16 gold bars brought in his hand bag received in Doha for handover another person at his village and intercepted at RGI Airport Hyderabad and this RGI Airport area and the economic offence Court are, undisputedly, within the bifurcated State of Telangana and the contention raised by referring to the expression no way a bar in this case as any said contention that till separate notification for the State of Andhra Pradesh designating any other Metropolitan or Additional Metropolitan Session Judge or Additional Sessions Judge in that area of the State of Andhra Pradesh covered by the Andhra Pradesh State reorganisation Act, 2014; and till being designated the existing Court if for the State of Telangana afresh, the case relating to the economic offences cannot be tried by the economic offences Court at Hyderabad is untenable for the aforesaid reasons. Hence and subject to that, it is even left open to raise the lis in appropriate forum with appropriate contention, but for to observe that the authorities concerned may take care of, if any such notification requires to have separate notification for the State of Andhra Pradesh and for the State of Telangana and it is made clear to avoid any future confusion till such separate notification being given, the existing notification and the jurisdiction holds good conferring jurisdiction on the economic offences Court at Hyderabad for the entire state of Andhra Pradesh that existing as on the date of bifurcation and before to continue. The above conclusion draws support from expression of Lord Denning Quoted in Land marks in the law (Butterworths) at page 62; from Christopher St. Germans doctor & Student Chapter XVI Page 45 as the following:
Judges should not go by the letter by the intendment of the Statute in giving interpretation, by doing what the makers of statute would have done if they had thought of it and filling in gaps accordingly The judges may judge after the mind of the makers so far as the latter may suffer A judge must not alter the material of which it is woven, but he can & should iron out the creases.
24. Having regard to the above, the learned Metropolitan Sessions Judge has no right at all to entertain much less to grant bail and the bail order granted is unsustainable and thereby the bail order, dated 23.04.2014, in Crl.M.P. No.1464 of 2014 is liable to be set aside. It is in this context to be kept in mind that, as per the Apex Courts expression relied on by the accused respondent to this application that is Omprakash (3supra) the offence under the Excise Act and the Customs Act in view of Section 9-A, 19 and 20 of Excise Act and Sections 103 and 104 of Customs Act are bailable irrespective of the term of imprisonment fixed for said offence (irrespective what is contained in schedule II of Cr.P.C.).
25. Thus, to subserve the ends of justice any by invoking the inherent powers under Section 482 Cr.P.C., the bail order to be kept in force for one week from today instead of cancelling forthwith and by directing the respondent accused herein meanwhile to surrender himself before the learned Special Judge for Economic Offences, under Section 44 of Cr.P.C. to take him in to custody and move for regular bail afresh to entertain the said bail application of the accused respondent herein and to decide afresh including as to the same is bailable or non bailable as the case may be and for granting bail subject to such conditions necessary which may not influence to the conditions imposed by the learned Metropolitan Sessions Judge in the impugned order since held without Jurisdiction in granting bail as the conditions may include furnishing of full and correct address with proof with bank account particulars, passport particulars and surrender of passport, if any, attending to the investigation, assurance of availability and securing his presence before Court, non-interference with witnesses particularly the mediators to the panchanama and the like. Accordingly, the point I is answered.
In Re. Point No.2:
26. In the result, the Criminal petition is allowed and consequently order of the learned Metropolitan Sessions Judge, Hyderabad passed in Crl.M.P. No.1464 of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV of Superintendent of Customs, Hyderabad is set aside, however by invoking the inherent powers of this Court under Section 482 Cr.P.C., this order of setting a side the bail order granted by the learned Metropolitan Sessions Judge is stayed for one week from today, for the Respondent-accused to continue on the bail meanwhile, so as to enable him to surrender before the learned Special Judge for Economic Offences, under Section 44 Cr.P.C.; to take him to custody and more for regular bail a fresh to entertain by the learned Special Judge to hear and decide, including as to whether the offences are bailable or non-bailable, with reference to the expression of the Apex Courtin Omprakash(supra) and in granting bail is with necessary conditions like execution of self bond with sureties furnishing of full and correct address with proof, with bank account particulars, surrender of passport, attending to the investigation, assurance of availability and securing his presence before Court, non interefence with witnesses particularly of the mediators to the panchanama and the like.
____________________________ Dr. B.SIVA SANKARA RAO Dt.06.08.2014