Patna High Court
Baldeo Prasad Alias Baldeo Prasad ... vs State on 16 September, 1985
Equivalent citations: 1986(34)BLJR380
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT Hari Lal Agarwal, J.
1. Both the cases having been referred to a Division Bench by Brother N.P. Singh, have been listed before us and have been heard together as the question of law in them is common, namely, as to whether an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (for short 'the Code') by an accused of the offence under Section 7 of the Essential Commodities Act, should be filed before the 'Special Court' constituted under Section 12A of the Essential Commodities Act, 1955 (for brevity 'the E.C. Act') or before the regular 'Court of Session' as provided under Section 438 of the Code.
2. The petitioners of both the cases had applied for grant of anticipatory bail before the learned Sessions Judge of Gaya, who took the view that he had no jurisdiction to hear the applications when Special Court had been establish-ed for this purpose.
3. When the cases were listed before Brother Singh, he referred them to a Division Bench and accordingly the same have been heard by us.
4. Before I proceed to discuss the question, I may point out that this question has been answered differently by two learned Judges of this Court. Whereas Uday Sinha, J. in the case of Raj Kumar Gupta v. The State of Bihar Cri, Misc. No. 2797 of 1985. by his order dated 11-4-1985 on reference to various provisions of the E.C. Act, has held that a 'Special Court' shall be deemed to be a 'Court of Session' and therefore, be a 'Session Court' within the meaning of Section 438 of the Code, and the Special Judge "will have the same power of entertaining an application for grant of anticipatory bail as this Court", P.S. Mishra, J. in the case of Banshidhar Gupta v. The State of Bihar Cri. Misc. No. 4712 of 1985. by his order dated 1-7-85, took the view that "the court designated as Special Judge is always subordinate to the provision under Section 438 of the Code of Criminal Procedure. For the purposes of exercise of power under Section 438...the judge exercising power under the Essential Commodities Act is not a sessions court."
5. To resolve the conflict between the two decisions referred to above and to answer the question falling for our consideration, some of the provisions of the E.C. Act have got to be referred to.
By Act No. 18 of 1981 certain special provisions by way of amendments to the main Act for dealing more effectively with persons including in hoarding and black marketing etc. in essential commodities, were provided and various new sections for Section 12A of the principal Act were substituted. Under the new Section 12A the State Government was empowered to constitute as many Special Courts as may be necessary for such area or areas by a Gazette Notification. The Special Court is to consist of a single Judge to be appointed by the High Court upon the request of the State Government and only such person who is--
(a) qualified for appointment as a Judge of a High Court, or
(b) has for a period of not less than one year been a Sessions Judge or an Additional Session Judge, can be appointed as a Judge of a Special Court.
From this provision it is clear that the qualification of the person who can preside over a Special Court is not in any way inferior to that of a person who is appointed as a Sessions Judge; and it may be said to be even higher if a person of the first category qualified for appointment as a Judge of a High Court is to be chosen.
The other relevant provision in this regard is Clause (d) of Section 12AA(1) of the E.C. Act which reads as follows:
(d) Save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a Special Court or the High Court:
X X X X X Section 12AB may also be usefully quoted:
12AB. Appeal and Revision--The High Court may exercise, so far as may be applicable, all the powers conferred by the Chapter XXIX and XXX of the Code on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court This provision also makes it clear that the legislation has not made any distinction in the status of the Special Courts and the Courts of Session under the Code; rather Section 12AC, in my opinion, takes the matter beyond all doubts and the same reads as follows:
12AC. Application of Code to proceedings before a Special Court Save as otherwise provided in this Act, the provisions of the Code (including the provisions as to bail and bonds) shall apply to the proceedings before Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
This provision in very clear terms declares that the Special Court shall be deemed to be a Court of Session and, in my view, it leaves no manner of doubt that the 'Special Court' constituted under the E.C. Act and the 'Court of Session' constituted under the Code have been put on equal footing and status.
According to the Scheme of Section 9 of the Code, the State Government has to establish a Court of Session for every Sessions Division which is to be presided over by a Judge to be appointed by the High Court.
6. Having thus come to the conclusion that the status of the Special Court and the Court of Session has been made equal, there can be no doubt that the Special Court can also exercise the same power as the Court of Session in the matter of entertaining applications for anticipatory bail under Section 438 of the Code as this section entitles a person having the reason to apprehend his arrest for a non-bailable offence to "apply to the High Court or the Court of Session for a direction...in the event of such arrest..." to be released on bail.
7. The above conclusion now poses another question in view of the provisions contained in Clause (d) of Section 12AA(1) already extracted earlier. This provision confines the power only upon a Special Court or the High Court to release on bail an accused of an offence under the E.C. Act.
8. The preamble of the Amending Act No. 18 of 1981 itself says that certain special provisions were made in the Act and one of those special provisions, in my view, takes away the jurisdiction of the Court of Session under the Code to entertain any application either for anticipatory bail under Section 438 or for regular bail under Section 439 of the Code.
9. The stand of Mr. Shakeel Ahmad Khan, appearing in the second case, was the same as I have indicated above and he also cited a decision of a learned single judge of the Karnataka High Court in S. Murgeshappa and Ors. v. State of Karnataka 1984 C.L.I 1819 where it is held that in the matter of grant of anticipatory bail the Special Courts constituted under the E.C. Act have power similar to that of the Court of Session under Section 438 of the Code.
But Mr. Ashok Kumar Keshri, appearing in the first case, took a stand that the power to grant anticipatory bail could be exercised only by the Court of Session constituted under the Code. Mr. Keshri submitted that there was a fundamental distinction between an accused merely apprehending his arrest and applying for his release on anticipatory bail, and the release of an accused who was already in custody. He tried to seek support for his submission from the case of Balchand Jain v. State of Madhya Pradesh A.I.R. 1977 S.C. 366. That was a case under the Defence & Internal Security of India Rules, 197(sic). Rule 184 of the said Rules also contained a non obstante clause and provided that "no person accused or convicted of a contravention of these Rules or Orders made thereunder shall, if in custody, be released on bail or his own bond unless--
(a) xx xx xx
(b) xx xx xx
The non obstante clause and its operative part imposed a ban on release or bail of a person accused or convicted of a contravention of the Rules etc., if in custody, unless two conditions were satisfied, namely, (1) the prosecution must be given an opportunity to oppose the application and (2) the Court must be satisfied that there are reasonable grounds that he was not guilty for such contravention. When both the conditions were satisfied the fetters were removed and the power of granting bail possessed by the Court under the Code revived and became exercisable. The provision, therefore, was intended to restrict the power of granting bail and not to confer a new power. It was accordingly submitted that the special provisions of the E.C. Act should not be construed as displacing the provisions of the Code in regard to the grant of bail to the accused persons under Section 7 of the E.C. Act, and not to read the special provisions as a self-contained Code for grant of bail in cases of persons accused or convicted of contravention of any provision made under Section 7 of the E.C. Act.
10. The contention of Mr. Keshri perhaps might have been acceptable had there been no Clause (d) in Section 12-AA(1) of the E.C. Act, as that provision completely debars any other Court to pass an order for release of an accused of an offence under that Act, on bail and, therefore, this provision must be construed "as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in Case of a person accused or convicted of contravention of any order made" under Section 7 of the E.C. Act. No provision of this nature was brought to our notice in the Defence and Internal Security of India Rules. I would accordingly hold that the application for anticipatory bail or for regular bail by an accused of an offence under Section 7 of the E.C. Act, can be entertained only by the Special Court and not by the regular Court of Session constituted under the Code. The learned Session Judge of Gaya has therefore, taken a correct view of law, and the decision of the learned Judge in the case of Banshidhar Gupta (supra), therefore, cannot be acceptable.
11. Before proceeding further I may also notice yet another argument that was advanced by Mr. Keshri at some length; when he had attempted to make a distinction between an accused applying for anticipatory bail (on the ground that he was not in custody) and that for regular bail, and submitted that Clause (d) of Section 12AA(1) of the E.C. Act would apply only to a case of regular bail as, according to him, the expression "bail" would apply where the accused was in custody.
This argument, in my view, is entirely misconceived as while allowing the prayer for anticipatory bail as well the accused has to "be released on bail". The act of granting bail, therefore, applies without distinction in either situation. In a case where an accused apprehends his arrest and applies for anticipatory bail, he has to be released on bail immediately on his arrest by the Police, or his surrender in court even before his arrest like an accused who surrenders before a warrant of arrest is executed against him and applies for regular bail.
12. It was then submitted that the case of both the petitioners should be examined on their merit by this Court and they should not be sent back to the Special Court for making fresh applications for grant of anticipatory bail for the second time as that would amount to uncalled for harassment to them.
Having examined the facts and circumstances of the case he had agreed to this part of the submission of learned Counsel for the petitioners and now I shall deal with their respective cases for bail.
13. The petitioner in the first case has been alleged to have been found in possession of six tins of kerosene oil which were found situated outside the shop premises in the town of Gaya. It was contended on his behalf that the petitioner is aged about 65 years and the business is carried on by his son. Further, the tins were not found in the business premises and were on the road which is a busy market area and it could not be definitely said that they necessarily belonged even to the petitioner's son. In any case, on these facts I feel that the petitioner deserves the privilege of grant of anticipatory bail. I would accordingly direct that if Baldeo Prasad alias Baldeo Prasad Keshri, petitioner in Cr. Misc. No. 5623 of 1985, surrenders in the trial court within two weeks from today he shall be released on furnishing a bail bond of Rs. 4000/-(Rupees four thousand) with two sureties of the like amount each to the satisfaction of the said court in Gaya Kotwali P.S. Case No. 229/85, dated 13-7-85, subject to the conditions laid down in Section 438(2) of the Code.
14. The petitioner in the second case is a fair price shop dealer, whose shop was inspected by a Supply Inspector on 27-5-85 when several irregularities were detected in relation to his stock. The defence of the petitioner, however, is that the Supply Inspector in fact had not inspected the business premises but had gone to his residence and, therefore, in the absence of any inspection of the business premises, the basis of the alleged irregularities cannot be pressed into service. I, however, do not feel impressed by this submission made on behalf of this petitioner and, therefore, I do not feel persuaded to allow his application. The petitioner, however, may pray for regular bail in the court below for its consideration on merits.
15. In the result, Criminal Miscellaneous No. 5623 of 1985 is allowed and Criminal Miscellaneous No. 5696 of 1985 is dismissed.
Nagendra Prasad Singh J.
16. I agree.