Rajasthan High Court - Jaipur
(Amar Singh Naruka vs . State Of Rajasthan) on 2 December, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc. Bail Application No.13027/2014 (Amar Singh Naruka Vs. State of Rajasthan) Date of Order ::::: 2.12.2014 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Anil Kumar Jain, for the petitioner.
Mr.Virendra Godara,Prosecutor for the State.
REPORTABLE Heard learned counsel for the parties.
The accused-petitioner has moved this application for grant of bail under Section 439 Cr.P.C. in respect of FIR No.164/2014 registered at Police Station Narayanpur (Alwar) for the offence under Section 3/25 of the Arms Act. The allegation against the petitioner is that one single barrel 0.315 bore Katta and a live cartridge 0.315 bore was recovered from his possession on 19.10.2014 at 2.50 p.m and he was not having a valid and effective license for the same. The application filed by the petitioner for grant of bail under Section 439 Cr.P.C. has been dismissed by the Additional Sessions Judge No.2, Alwar vide order dated 3.11.2014 mainly on the ground that as many as nine other criminal cases for various offences have been registered against the petitioner from time to time.
Inviting attention of this Court towards Section 37 of the Arms Act (hereinafter to be referred as "the Act") learned counsel for the petitioner submitted that the offence for which the petitioner has been arrested is bailable and, therefore, he is entitled to be released on bail as of right in the light of provisions of Section 436 Cr.P.C., but the learned Court below without considering that aspect of the matter dismissed the application filed by the petitioner only on the ground that some other criminal cases were also registered in past against the petitioner. It was further submitted that a special procedure has been provided under sub-section (2) of Section 37 of the Act that if any person is arrested under the Act he shall be delivered without delay to the officer in charge of the nearest police station and that officer shall either release that person on his executing a bond with or without sureties to appear before a Magistrate or should that person fail to execute the bond and to furnish, if so required, sufficient surities, produce that person without delay before Magistrate. It was submitted that the special procedure as provided under this provision of the Act makes it analogous to Section 436 Cr.P.C. and, therefore the petitioner is entitled to be released on bail as of right. It was also submitted that although under any of the provision of the Act it has not been specifically provided that offences or any of the offence punishable under the Act are/is bailable, but looking to the special procedure provided under sub-section (2) of Section 37 of the Act it is manifest that the offences under the Act are bailable.
So far as grant of bail to the petitioner on merit is concerned, it was submitted that merely because some other criminal cases were also registered against the petitioner for various offences from time to time cannot be a ground to refuse bail in the present case more particularly in view of the period of custody of the petitioner, which is more than a month.
In support of his submissions, learned counsel for the petitioner relied upon the cases of Kuruva Surya Prakash Reddy Vs. The State of Andhra Pradesh reported in 2002 Crl.L.J.2356 (A.P. High Court), State (NCT of Delhi) Vs. Narender reported in 2014 SC Manu 10, order dated 2.9.2009 passed by the Single Bench of this Court in S.B.Criminal Misc.Third Bail Application No.6747/2009 (Tejmohan Vs. State of Rajasthan), order dated 8.9.2009 passed by the same learned Single Bench of this Court in S.B.Criminal Misc.Bail Application No.6720/2009 (Pabu Ram @ Babu Ram Vs. State of Rajasthan).
On the other hand, it was submitted by the learned Public Prosecutor that according to clause (a) of Section 2 of the Code of Criminal Procedure (hereinafter to be referred as "the Code"), a "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable" offence means any other offence. It was submitted that unless an offence is specifically or impliedly made bailable by any other law for the time being in force the question whether an offence is bailable or non-bailable is to be determined as provided in First Schedule of the Code and according to Part II of the Schedule, an offence is bailable only when it is punishable with imprisonment for less than three years or with fine only whereas if an offence is punishable with imprisonment for three years and upwards, but not more than seven years, it is non-bailable. It was further submitted that in the present case the offence committed by the petitioner is punishable under Section 25 (1B) of the Act and the sentence provided for it is imprisonment for a term shall not be less than one year, but which may extend to three years. According to learned Public Prosecutor if for an offence sentence of imprisonment which may extend to three years is provided, the Court is empowered to pass sentence of three years also and, therefore, it cannot be said that the offence for which the petitioner has been accused is an offence for which a sentence of imprisonment for less than three years has been provided. It was further submitted that merely because a special procedure has been provided under clause (b) of Section 37 of the Act for the production of a person arrested under the Act before the officer in charge of the nearest police station and such officer has been empowered to release such person on bond with or without sureties for his appearance before a Magistrate, it cannot be said that the offences under the Act are bailable. It was also submitted that learned Single Bench of this Court without considering the definition of "bailable offence" as provided under the Code merely on the basis of aforesaid special procedure has held the offences under the Act to be bailable.
So far as the grant of bail to the petitioner on merit is concerned, it was submitted that looking to the criminal antecedents of the petitioner he is not entitled to be released on bail although he is in custody for about a month.
I have considered the submissions made on behalf of the respective parties, the material made available for my perusal as well as the relevant legal provisions and the case law relied upon on behalf of the petitioner.
First of all it is to be considered whether the offence for which the petitioner has been accused in the present case is bailable and he is entitled to be released on bail as of right without considering the merit of the case.
Sub-section (1) of Section 4 of the Code provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained, whereas sub-section (2) provides that 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.
Thus, it is clear that unless some special procedure is provided under any other law for regulating the manner or place of investigating, inquiring into, trial, or otherwise dealing with the offences punishable under the other law, the offences punishable under such other law are also to be investigated, inquired into, tried or otherwise dealt with according to the provisions provided under the Code.
Section 5 of the Code provides that nothing contained in the 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.
It is well settled that where any special enactment provides special procedure only for some matters, such procedure will govern these matters and in regard to other matters on which special enactment is silent, the provisions of the Code will be applied. The existence of a special law does not exclude the operation of the Code unless the special law expressely or impliedly provides in that behalf in which case, the special law will apply otherwise the Code will apply. Thus, it is to be seen whether there is any provision in the Act which expressely or impliedly providing that the offences or any of them punishable under the Act are/is bailable.
Clause (a) of Section 2 of the Code provdes which offence is bailable and which is non-bailable offence. According to this provision "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non bailable offence" means any other offence. Thus, it is clear that unless an offence is expressely or impliedly made bailable by any other law for the time in force, the question whether an offence is bailable or not is to be determined as provided in the First Schedule of the Code. It is an admitted position that in any of the provisions of the Act the offences or any of the offence punishable under the provisions of the Act have/has not specifically been made bailable. The First Schedule to the Code is in two parts. The first part of the same provides for the offences under the Indian Penal Code, whereas the second part of the Schedule classifies the offences against other laws. Item third of Part II of the Schedule provides that an offence punishable with imprisonment for three years and upwards, but not more than seven years is cognizable and non-bailable whereas Item third provides that an offence punishable with imprisonment for less than three years or with fine only is non-cognizable and bailable. In the present case, the petitioner is accused of possessing fire arm and ammunition without valid and effective licence. According to Section 25 (1B), whoever has in his possession or carries any fire arm or ammunition in contravention of section 3 of the Act shall be punishable with imprisonment for a term which shall not be less than one year, but which may extend to three years and shall also be liable to fine. It is thus clear that for the aforesaid offence the Court is empowered to pass sentence of imprisonment of three years also and, therefore, it cannot be said that for such offence sentence of imprisonment for less than three years is provided and, therefore, unless it is otherwise found under the provisions of the Act that the offences or any of the offence punishable under the provisions of the Act is bailable the offence for which the petitioner has been accused in the present case is to be held bailable. The only provision towards which attention of this Court has been invited by the learned counsel for the petitioner is Section 37 of the Act. Before the aforesaid Section is considered, some other relevant provisions of the Act are also required to be considerd.
According to the Clause (ff) of Sub-section (1) of Section 2 of the Act "Magistrate" means an Executive Magistrate under the Code of Criminal Procedure, 1973.
Section 20 of the Act provides that where any person is found carrying or conveying any arms or ammunition whether covered by a lience or not, in such manner or under such circumstances as to afford just grounds of suspicion that the same are or is being carried by him with intent to use them, or that the same may be used, for any unlawful purpose, any magistrate, any police officer or any other public servant or any person employed or working upon a railway, aircraft, vessel, vehicle or any other means of conveyance, may arrest him without warrant and seize from him such arms or ammunition.
Thus, according the aforesaid provision not only a Magistrate i.e. Executive Magistrate and Police Officer, but several other pesons are also authorised to arrest a person without warrant and seize from him arms or ammunition in the circumstances mentioned in the provision.
Now, it is useful to quote Section 37 of the Act, which is as below :
"Arrest and searches.Save as otherwise provided in this Act,
(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;
(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered without delay to the officer in charge of the nearest police station and that officer shall
(i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody till the appearance of that person before the magistrate, or
(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay before the magistrate.
Clause (a) of Section 37 of the Act provides that all arrests and searches made under the Act or under any rules made thereunder shall be carried out in accordance with the provisions of the Code relating respectively to arrests and searches made under that Code. Thus, no special procedure has been provided under the Act for arrest of a person or search and seizures to be effected under the Act. Clause (b) provides that any person arrested or any arms or ammunition seized under this Act by a person not being a Magistrate or a police officer shall be delivered without delay to the officer incharge of the nearest police station and that police officer shall either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody till the appearance of that person before the magistrate.
A close look at the aforesaid provision makes it clear that this provision is applicable only when a person is arrested by a person other than a magistrate or a police officer and only in that situation the person so arrested is required to be handed over without delay to the officer incharge of the nearest police station. I am of the considered view that if a person is arrested under the provisions of the Act by a police officer or a Magistrate i.e. Executive Magistrate, the provision is not applicable and it is not necessary that the person so arrested is handed over to the officer incharge of the nearest police station. Furthermore, at the most what this provision provides is that the person so arrested shall be released by the officer incharge of the police station only for the limited purpose of his appearance before a magistrate on his executing bond with or without sureties and merely because the officer incharge of a police officer has been empowered to release such person for a limited purpose of his appearance before the Magistrate, in my view, it cannot be said that the offences or any of the offence punishable under the Act are/is bailable. I am of the considered view that the provisions of Section 37 of the Act are not at all relevant to determine whether the offences or any of the offence punishable under the Act is bailable or non-bailable. Reliance on this provision for that purpose is wholly misplaced. It is pertinent to note that as per the Section 38 of the Act every offence under the Act has been made cognizable within the meaning of the Code i.e. a police officer is empowered to arrest a person accused of an offence under the Act without warrant.
As already said, Section 20 of the Act empoweres not only a Magistrate i.e. Executive Magistrate and a police officer, but some other persons also to arrest a person without warrant if such person is found to be carrying or conveying any arms or ammunition in the circumstances enumerated in that provision and also to seize such arms or ammunition, I am of the firm view that Clause (b) of Section 37 of the Act has been enacted only to deal with a situation where the person is arrested by such other person and in that situation the person so arrested and the arms or ammunition so seized is required to be delivered to the officer incharge of the nearest police station and such officer has been empowered to release the person so arrested on his executing a bond with or without sureties to appear before a Magistrate, but only by that reason it cannot be held that the offences or any of the offence punishable under the Act is bailable. Section 37 of the Act is silent what will happen if the person so arrested fails to execute a bond and to furnish the sufficient sureties as required by the officer incharge of the police station and he is produced before the Magistrate i.e. Executive Magistrate. According to the provisions of Section 436 of the Code, only a Court is empowered to release a person accused of a bailable offence and not a Executive Magistrate. When the Executive Magistrate has not been empowered to release such person on bail, how the release of such person by officer incharge of the police station for a limited purpose of his appearance before an Executive Magistrate can be said to be release of such person on bail. Merely because a special procedure has been provided under Clause (b) of Section 37 of the Act for release of an arrested person, arrested by some persons specially empowered under Section 20 of the Act, by the officer incharge of a police station for a limited purpose of his appearance, before an Executive Magistrate, cannot and does not make the provision analogous to Section 436 of the Code. Section 436 of the Code authorises an officer incharge of a police station to release on bail a person accused of a bailable offence if such person is arrested or detained without warrant by an officer incharge of a police station. The power conferred upon a officer incharge of a police station under Section 436 of the Code is entirely different from the power conferred upon him under Claue (b) of Section 37 of the Act.
Apart from that, if one goes to determine the offences or any of the offence under the Act to be bailable only on the basis of Clause (b) of Section 37 of the Act, some absurbd results are bound to occur as some of the offences under the Act are very serious and very severe sentences are provided for them. Offences enumerated under Sub-section (1) of Section 25 of the Act are punishable with imprisonment for a term, which shall not be less than three years, but which may extend to seven years; offence under Section 25 (1) (a) of the Act is punishable with imprisonment for a term, which shall not be less than five years, but which may extend to 10 years whereas offence under Section 25 (1AA) is punishable with imprisonment for a term, which shall not be less than seven years, but which may extend to imprisonment for life. It is beyond imagination that the Legislature intended that such serious offences carrying severe punishment be made bailable.
Although, a learned Single Bench of this High Court in more than one case relying upon Section 37 of the Act has held that offence under Section 3/25 of the Act is bailable but I am unable to pursuade myself to endorse and follow the same, as it has been so held without properly considering all the relevant provisions of the Code and the Act and, therefore, the view so taken by the learned Single Bench must be held to be per incurim. It is well settled that if a decision is rendered overlooking a statutory provision shall be treated as per incurim and cannot be regarded as a binding precedent.
So far as the case of Kuruva Surya Prakash Reddy Vs. State of Andhra Pradesh (supra) is concerned, in this case the question whether the offences or any of the offence punishable under the Act is bailable or non-bailable was not involved and the accused-appellant was acquitted by the learned Single Bench of the Andhra Pradesh High Court by the reason that unexplained delay was made for production of the accused and seized articles before the Magistrate.
Similarly, the case of State (NCT of Delhi) Vs. Narender (supra) is also of no help to the petitioner, as in that case the question before the Hon'ble Supreme Court was whether a Criminal Court is empowered to release a vehicle seized under the provisions of the Delhi Excise Act, 2009. It was found by the Hon'ble Court that the Delhi Excise Act provides a special procedure for the release of a vehicle seized under the Act and, therefore, the provisions of Sections 451, 452 and 457 of the Code of Criminal Procedure are not applicable and a Criminal Court is not empowered to release such vehicle.
The net result of all this discussion is that there is no provision in the Act expressely or impliedly providing that the offences or any of the offence under the Act is bailable and in absence thereof the provisions of the Code would be applicable. As the offence for which the petitioner is accused in the present case is punishable with sentence of imprisonment which may extent to three years, it cannot be held to be bailable entitling the petitioner to be released on bail as of right.
So far as grant of bail to the petitioner on merit is concerned, it is not disputed that nine other criminal cases for various offences have been registered against the petitioner from time to time and all of them are presently pending for trial before a competent Court and, therefore, looking to the previous criminal record of the petitioner, he is not entitled to be released on bail on merit also.
Consequently, the bail application filed under Section 439 Cr.P.C. is dismissed.
(PRASHANT KUMAR AGARWAL), J teekam/A.Arora (Reserved Judgment) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA PERSONAL ASSISTAN