Patna High Court - Orders
Sushil Kumar Mishra & Anr vs The State Of Bihar on 17 August, 2017
Bench: Chief Justice, Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36582 of 2017
Arising Out of PS.Case No. -885 Year- 2017 Thana -SASARAM NAGAR District- SASARAM
(ROHTAS)
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Sushil Kumar Mishra & Anr
.... .... Petitioner/s
Versus
The State of Bihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Yogesh Chandra Verma, Sr. Adv.
Mr. Harsh Anuj, Advocate
For the Opposite Party/s :
Mr. Lalit Kishore, Advocate General
Mr. P. K. Verma, AAG-3
Mr. Suman Kumar Jha, AC to AAG-3
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CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE SUDHIR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 17-08-2017This is a reference made by a learned Single Bench of this Court on 10.08.2017 and the question referred to us for consideration reads as under:
"Whether against any order, granting or refusing bail, by the Special Court constituted under „the Act‟, in respect of an offence under „the Act‟, an application under Section 439 and 440 of „the Code‟, or an appeal under Section 89 of „the Act‟ would be maintainable before this Court?"
2. Before adverting to consider the aforesaid question, it would be appropriate to take note of certain statutory provisions as are contained in the Code of Criminal Procedure, (hereinafter referred to as „the Code‟), the Bihar Prohibition and Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 2/14 Excise Act, 2016 (hereinafter referred to as „the Prohibition Act‟) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as „SC & ST Act‟).
3. As far as the Code of Criminal Procedure is concerned, Section 439 of the Code contemplates a provision granting special powers to the High Court or the Court of Sessions regarding grant of a bail to a person.
4. The Bihar Prohibition and Excise Act, 2016 was brought into force with effect from 2nd of October, 2016 for the purpose of enforcing, implementing and promoting complete prohibition with respect to use, manufacture, sale etc. of liquor and intoxicants in the territory of the State of Bihar and for matters connected thereto. The said Prohibition Act consists of about 11 chapters dealing with various issues. As far as the provisions relevant for deciding the issue in question is concerned, we may refer to Section 30 in Chapter VI which pertains to penalty for unlawful import, export, transport, manufacture, possession, sale of intoxicant liquor. Thereafter, Section 73 onwards under Chapter VIII deals with detection, investigation and trial of offences. Section 76 of the Prohibition Act provides that offences under the Act shall be cognizable and non-bailable and sub-section (1) of Section 76 contemplates that Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 3/14 all offences under this Act shall be cognizable and non-bailable and the provisions of Code of Criminal Procedure, 1973 (Act 2 of 1974) shall apply. Thereafter, sub-section (2) of Section 76 starts with a non-obstante clause and contemplates that nothing in Section 360 of the Code and Section 438 of the Code and the Probation of Offenders Act shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Prohibition Act. Section 83 contemplates and prescribes that notwithstanding anything contained in sub-section (1) of Section 76 of the Prohibition Act, all offences punishable under the Act shall be tried by the Court of Sessions. Under Section 84, Special Courts have been constituted. Section 85 provides the procedure and power of the Special Judge and under Section 89, a provision for appeal is made which contemplates that 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. Thereafter, we may take note of the provisions of sub-section (2) of Section 85 which contemplates that save as provided in sub-section (1) of Section 85, the provisions of the Code shall apply so far as they are not inconsistent with the provisions of the Prohibition Act. Similarly, Section 90 of the Prohibition Act contemplates that save as otherwise expressly provided under the Prohibition Act, Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 4/14 the provisions of the Code relating to arrest, detention, search, summons etc. would apply.
5. Section 14-A of the SC & ST Act provides for an appeal and under sub-section (2) it is specifically mentioned that notwithstanding anything contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.
6. It is in the backdrop of the aforesaid statutory provisions, that, we are required to consider the issue in question. Before considering the issue in question, we may take note of the factors that weighed with the learned Single Bench while making reference on 10.08.2017. The learned Single Bench took note of various provisions of the Act, as are indicated hereinabove, took note of the provisions of Section 89 of the Prohibition Act providing for appeal and indicated that every order passed under the Prohibition Act is amenable to the appellate jurisdiction under Section 89 and by putting emphasis on the words „any order‟ as appearing therein, opined that it would mean and also indicate an order granting or refusing bail. Thereafter, the learned Court refers to sub-section (2) of Section 85, places heavy reliance on a Division Bench judgment of this Court in the case of Bisheshwar Mishra & Anr v. The State of Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 5/14 Bihar [2016 (4) PLJR 1058], Section 14-A (2) of the aforesaid Act and holds that once there is a provision for filing an appeal against „any order‟ passed by the Special Court under the Prohibition Act, the same would be amenable to the appellate jurisdiction under Section 89 and an application under Section 439 of the Code, in his considered view, may not be maintainable and taking note of the aforesaid, reference in question has been made to this Bench.
7. As we have indicated hereinabove, Section 76 of the Prohibition Act contemplates that offences under this Act are cognizable and non-bailable and all offences under this Act shall be governed by the provisions of the Code of Criminal Procedure. Thereafter, certain restrictions by virtue of a non- obstante clause, i.e. sub-section (2), has been incorporated which contemplates that nothing contained in Section 360 of the Code, Section 438 of the Code and the Probation of Offenders Act shall apply in cases of offences committed under the Prohibition Act. That being so, a reading of Section 76 clearly indicates that except the provisions as are contemplated in sub-section (2) of Section 76, i.e. 360 & 438 of the Code and the Prohibition of Offenders Act, all other provisions of the Code of the Criminal Procedure are applicable.
8. Even the question as to whether Section 438 of Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 6/14 the Code is applicable or not has been referred to the Division Bench of this Court and we leave it open to be considered by an appropriate Bench. As far as the issue in hand is concerned, we are not concerned with the applicability of provision of Section 438 of the Code and we may make it clear that nothing in this order shall be construed to mean that we have recorded any opinion about applicability of the provision of Section 438 of the Code to the Prohibition Act as this question being sub-judiced in a matter pending before another Division Bench.
9. Thereafter, Section 83 speaks about trial of offences and Section 89 provides for an appeal to be filed by an aggrieved person against any order of the Special Court. The learned Single Bench was of the view that the words, „any order‟ appearing in Section 89 would also include an order passed under Section 439 of the Code by the Special Court exercising power under the Prohibition Act and, therefore, against an order passed under Section 439 of the Code by the Special Court, an appeal has to be filed. However, while doing so, the learned Court did not take note of the provisions of Section 76 (2) of the Prohibition Act which makes provisions of Section 439 of the Code applicable and so also sub-section (2) of Section 85 which makes the entire provisions of the Code applicable, except those which are excluded by virtue of sub-section (1) of Section 85. Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 7/14 Section 90 specifically makes applicable all the provisions pertaining to arrest and detention as provided under the Code applicable in cases pertaining to offences under the Prohibition Act. That being the position, when all the issues relating to arrest and detention covered by the Code and only Section 438 and 460 of the Code are excluded from its application as is evident from Section 76 (2) of the Prohibition Act, there is no iota of doubt that Sections 439 and 440 of the Code would apply in cases of offences committed and action taken under the prohibition Act. Further, the fact that under Section 439 of the Code, special powers have been given to the High Court and the Court of Sessions and both the High Court and the Court of Sessions exercise concurrent jurisdiction so far as Section 439 of the Code is concerned is also lost sight of. That apart, if we go through the reference made, we find that the learned Single Bench was of the view that in view of the judgment rendered by the Division Bench in the case of Bisheshwar Mishra (supra), an appeal has to be filed and for the said purpose, he refers to Section 14-A (2) of the SC & ST Act. Sub-sections (1) & (2) of Section 14A of the SC & ST Act reads as under:
"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, Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 8/14 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."
10. If we go through the provisions of Section 14 of the SC & ST Act as reproduced hereinabove, we find that there is specific provision contemplated for filing an appeal even against an order of the Special Court or an Exclusive Special Court granting or refusing bail. There is nothing in the Prohibition Act which speaks of an order passed granting or refusing bail being made applicable. It only speaks of a general order which is passed by the Special Court against which an appeal lies under Section 89 of the Prohibition Act.
11. If we take note of the provision of Section 14A of the SC and ST Act and reconcile it with the provisions of sub- sections (1) and (2) of Section 76, Section 85 (2) and Section 90 of the Prohibition Act, we are of the considered view that legislative intent that flows from the provisions of the Prohibition Act is that all offences committed under the Prohibition Act are cognizable and non-bailable and all the Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 9/14 provisions of the Code of Criminal Procedure apply to an offence committed under the Act, except the provisions of Sections 438 and 360 of the Code and Probation of Offenders Act and there is nothing to indicate that the provisions of Section 439 is excluded from its applicability with regard to offences committed under the Prohibition Act. The learned Single Bench has given much emphasize to say that it is the cardinal rule of interpretation that a special statute will prevail over the general statute and by holding that the Prohibition Act is a special statute, it would have overriding effect over the Code of Criminal Procedure has held that an appeal has to be filed in the matter of grant or refusal of bail under Section 439 of the Code.
12. In our considered view, with respect, we do not agree with the aforesaid observation of the learned Single Bench, in this particular case for the simple reason that the intention of the law maker is clear on a conjoint reading of Section 76, 85 (2) and Section 90 of the Prohibition Act, which is to make an offence under the Prohibition Act cognizable and non-bailable offence, apply all the provisions of the Code and exclude only the applicability of certain provisions, like Sections 438 and 360 of the Code and the Probation of Offenders Act, that being the intention of the Rule maker, we can safely construe that the legislature never intended to exclude applicability of Section 439 Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 10/14 of the Code from the purview of the Prohibition Act.
13. If the aforesaid reasoning and discussions made by us is analyzed in the backdrop of the provisions and settled principle of law pertaining to interpretation of statute, we find that this is the only interpretation that can be advanced or applied in the present case.
14. It is a cardinal principle of interpretation of statute that words used in the Statute, when there is doubt about their meaning, they are to be understood in the manner indicated in the Statute and in a way they can be best harmonized with the subject of the enactment and the object with which they are incorporated. The ordinary meaning of Statute should be understood in a sense that they best harmonize with the object of the Statute. Even if two interpretations are feasible, the interpretation which advances the remedy should be given prominent consideration. The Statute has to be interpreted in a reasonable manner so that the rules of purposive construction are restored and the object of the law advanced. The Court has to adopt an interpretation which is just reasonable and sensible as laid down by the Hon‟ble Supreme Court in the Case of State of Narmada Bachao Andolan Versus State of Madhya Pradesh, [(2011) 7 SCC 639]. It has to be assumed that the legislature has used certain words and phrase in a Statute and while interpreting Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 11/14 them, there should be least interference with the imparting of justice as laid down in various cases by the Hon‟ble Supreme Court, including the case of Union of India vs. B. S. Agrawal, [AIR 1998 SC 1537]. Similarly, repugnancy and inconsistency should be avoided and construction of a Statute should be made in a manner that it harmonizes all the provisions of the Statute, avoids hardship and injustice and is in consistent with the legislative intent. The Statute must be read as a whole and a provision should be construed with reference to other provisions so as to harmonize the meaning and effect of various provisions. The principles of excluding a particular provision and inclusion of a provision in a Statute should be applied in such a manner that the exclusion and inclusion are given effect to in their right perspective.
15. Accordingly, we have no hesitation in answering the reference framed by holding that against an order granting or refusing bail by the Special Court constituted under the said Act, an application under Section 439 and 440 of the Code would apply and the provision of Section 89 of the Prohibition Act pertaining to appeal will not be applicable in such cases as the provision of Section 439 of the Code has been specifically made applicable to the offences under the Prohibition Act and its application has not been specifically Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 12/14 excluded.
16. During the course of hearing, learned Advocate General had emphasized that the provision of Section 89 speaks about „any order‟ passed by the special Court and an order passed refusing bail under Section 439 of the Code is also appealable and, therefore, reference has to be answered accordingly.
17. With respect, we do not agree with the submission made by learned Advocate General. The argument as advanced looks attractive, but while construing a provision, and interpreting the provision in a statute, we have to do so in furtherance to the intention of the rule maker and interpret the provisions of the Act strictly, particularly, when it pertains to a criminal law or a taxation law. If the intention of the rule maker were to avoid or exclude the applicability of the provision of Section 439 of the Code and make it inapplicable to the Prohibition Act and provides for remedy of appeal even against an order under Section 439 of the Code, then under sub-Section (2) of Section 76 along with the provisions included therein, i.e. Section 438 and 360 of the Code and the Probation of Offenders Act there would have been a mention specifically excluding the applicability of Section 439 of the Code. The intention of the legislature, as can be made out on a conjoint reading of sub- Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 13/14 section (2) of Section 76, Section 85 (2) and 90 of the Prohibition Act clearly shows that applicability of Section 439 of the Code was not excluded. Both the High Court and the Court of Sessions have concurrent jurisdiction, original in nature under Section 439 of the Code and, therefore, the contention of the learned Advocate General cannot be accepted.
18. In the case of Bisheshwar Mishra (supra), the question was with regard to interpretation of Section 14A of the SC & ST Act. Under sub-section (2) of Section 14 of the SC & ST Act, there is specific provision for filing an appeal before the High Court against an order passed by the Special Court refusing or granting bail. Once the legislature intention, as is evident from Section 14A (2) of the SC & ST Act, was to specifically include within its ambit an order refusing or granting bail their being inclusion conscious in nature, the law laid down in the case of Bisheshwar Mishra (Supra) will not applicable in the case of the Prohibition Act. Under Section 89 of the Prohibition Act, the words used are orders, general in nature. Once the provision of Section 89 is a general provision without providing for an appeal against an order granting or refusing bail and when the provision of Section 439 of the Code for grant of bail has been specifically made applicable under the Prohibition Act, it has to be held that an application under Section 439 of the Code is maintainable Patna High Court Cr.Misc. No.36582 of 2017 (3) dt.17-08-2017 14/14 before this Court.
19. In view of the above, we answer the reference as indicated hereinabove by holding that the provisions of Sections 439 and 440 of the Code would apply to applications for bail filed under the Prohibition Act before this Court and the words, „any order‟ appearing in Section 89 of the Prohibition Act will not apply in cases where bail is sought for in a proceeding under Section 439 of the Code.
20. In view of the above, let this matter be listed now for consideration of the bail application before the appropriate bench as per roster.
(Rajendra Menon, CJ) (Sudhir Singh, J) Sunil/-
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