AKHILESH SINGH v. STATE — 1987 DIGILAW 677 (ALL)

S. I. JAFRI, J. ( 1 ) THIS is an application for bail on behalf of Akhilesh Singh applicant under S. 439, Cr. P. C. in Crime No. 64 of 1987 under Ss. 147, 148, 307, I. P. C. and under S. 3 of U. P. Gangsters and Anti-social Activities (Prevention) Act. 1986. ( 2 ) A preliminary objection has been raised by Sri Girdhar Malviya, the learned Addl. Government Advocate that the application for bail moved under S. 439, Cr. P. C, by the applicant is not maintainable and the High Court or any other Court is not vested with the jurisdiction to entertain the bail application against an order dismissing the bail application by the Special Judge. It was further submitted by him that U. P. Gangster and Anti-social Activities (Prevention) Act, 1986 U. P. Act No. 7 of 1986 (hereinafter referred to as the Act) is a Special Law enacted by the State Legislature making provisions for the prevention and for dealing with Gangsters and Anti-social Activities and for matters connected therewith or incidental thereto. He further asserted that the Act is a special Code for the trial of the Gangsters which is punishable under S. 3 of the Act by sentencing not less than two years which may extend to 10 years or with a fine which shall not be less than Rs. 5000/ -. The learned Additional Government advocate further stressed that the Act is a complete code as is evident from the Scheme viz. (1) which defines the offence under S. 3 (c) of the Act and provides enhanced and drastic punishment for the offences specified in the I. P. C. or any other law. It was also urged by him that the Act has special provisions in S. 4 providing for special rule notwithstanding contrary contained in Cr. P. C, or Evidence Act. Moreover, S. 5 of the Act provides for special Court and enables such Court to sit at any place which it considers desirable other than the ordinary place of sitting. It was also contended by him that the jurisdiction of the special Court is exclusive under S. 7 of the Act and even the power of transfer of the case from one Court to another Court has been conferred on the State Government. It was also contended by him that the jurisdiction of the special Court is exclusive under S. 7 of the Act and even the power of transfer of the case from one Court to another Court has been conferred on the State Government. It was next submitted by the learned Counsel that S. 9 of the Act provides for appointment of Public Prosecutor whose qualifications are prescribed under S. 9 (2) of the Act. It was also submitted that the Act provides for appeal by applying Chap. XXIX of the Criminal P. C. mutatis mutandis. He further added that the power to grant bail conferred by S. 439, Cr. P. C, to the High Court or other Courts has not been made applicable and on the contrary the power is conferred upon the special Judge and that power has a statutory requirement that bail shall not be granted unless the Public Prosecutor has been given opportunity to oppose bail application, where the Public Prosecutor opposes the bail, the Court must be satisfied - (1) that there are reasonable grounds for believing that he is not guilty of such offences; (2) that he is not likely to commit any offence while on bail. ( 3 ) IT was also submitted that S. 19 (5) of the Act provides that the limitation for granting bail in S. 4 are in addition to the limitations under the Code and S. 20 of the Act gives overriding effect to the provision of this Act to decide matters by overriding provisions inconsistent therewith contained in any other Act. It was also submitted by the learned Additional Government Advocate that in the absence of the appointment of any special Public Prosecutor in the High Court for opposing the bail in offences under the Act, the counsel representing the state is incompetent to oppose such bail applications in the High Court in view of the provisions contained in S. 9 of the Act. ( 4 ) IN nut-shell, the argument of the learned Additional Government Advocate is that there is no legislative intent in the Act for exercising the powers contained in S. 439, Cr. P. C, by the High Court as the Act is a complete Code in itself. ( 5 ) THE learned Addl. ( 4 ) IN nut-shell, the argument of the learned Additional Government Advocate is that there is no legislative intent in the Act for exercising the powers contained in S. 439, Cr. P. C, by the High Court as the Act is a complete Code in itself. ( 5 ) THE learned Addl. Government Advocate placed reliance on AIR 1944 PC 1 in support of his argument regarding the principles of statutory interpretation and submitted that the High Court has only been given appeal jurisdiction under the Act and the remaining provisions of the Criminal P. C. have been curtailed. Reliance has also been placed on AIR 1970 All 353 where it has been held that special law will exclude the general law on the question of limitation. He has further submitted that in view of the inconsistency in S. 19 of the Act and S. 439, Cr. P. C. , the Special Act must prevail as against the general law. He has placed reliance on AIR 1968 SC 207 (sic ). AIR 1967 SC 1122 (sic) and AIR 1966 SC 3. x He has also placed reliance on 1978 All LJ 176 where it was held that in view of the provisions of Arbitration Act, the provisions of C. P. C. will not be attracted. ( 6 ) I have also heard Sri G. S. Chaturvedi, learned counsel for the applicant at a great length and I am in complete agreement with him. I am, therefore, of the view that the aforesaid preliminary objection raised by learned Additional Government Advocate has no legs to stand and is devoid of any merit. ( 7 ) IN dealing with the interpretation of the statutes, three fundamental principles must always be kept in mind. (i) The special law overrides the general law in so far as they are inconsistent. (ii) The jurisdiction of the Court must be conferred or taken away by express provisions contained in the Special Act and can neither be conferred nor taken away by the consent of the parties. (iii) The legislative intent derived from the provisions of the Special Act for overriding the provisions of the General Act must reasonably flow from express provisions of the Act. (iii) The legislative intent derived from the provisions of the Special Act for overriding the provisions of the General Act must reasonably flow from express provisions of the Act. ( 8 ) CONSIDERING the above mentioned principles of the interpretation of statutes, it is difficult to hold that the Act is a complete Code which totally excludes the operation of the Cr. P. C. There is also no express provisions in the Act which take away the power of the High Court conferred under S. 439, Cr. P. C. Moreover, there is also no legislative intent emanating from the express provisions of the Act for non-application of S. 439, Cr. P. C. Even S. 19 of the Act is completely silent for curtailing the jurisdiction of the High Court or Court of Session by virtue of S. 439, Cr. P. C. The provisions contained in the Act only confer jurisdiction on the special Court to try cases falling under the Act. The trial commences on taking cognizance directly by the special Judge and it ends with the conviction and sentence or the acquittal passed by him. It may further be noted that consideration of bail is a judicial proceeding which takes place even before the cognizance is taken by the special Court or even after conviction i. e. upon the appeal being filed. The power of trial is quite distinct from the power to grant of bail and both these provisions are contained in Cr. P. C, under different chapters. If the power to try an offence I includes the power to grant bail, then, there would have been no necessity for making separate provisions for grant of bail as has been done in the Cr. P. C. It may further be noted that the Act does not expressly confer any power on special Judge to grant bail. Likewise, there is no provision in the Act which excludes the jurisdiction of the Sessions Judge and the High Court to grant bail under S. 439, Cr. P. C, and under the circumstances the Code continues to apply to bail in view of the power contained under S. 439, Cr. P. C. The power of S. 439, Cr. P. C, is neither taken away nor different procedure is prescribed in the absence of specific provision in the Act in view of the provisions contained in S. 4 (2) and S. 5, Cr. P. C. The power of S. 439, Cr. P. C, is neither taken away nor different procedure is prescribed in the absence of specific provision in the Act in view of the provisions contained in S. 4 (2) and S. 5, Cr. P. C. The general procedure proscribed in the Code continues to apply subject to such modifications as may be, imposed under the Act. These restrictions are contained in S. 19 (4) of the Act and thus the High Court and the Court of Session continue to have the power under S. 439, Cr. P. C, to grant bail but it is made clear here that the special Judge in the absence of any special provisions in the Act for grant of bail during trial, derives the power for grant of bail under S. 439, Cr. P. C, as special Judge also enjoys the power of a Sessions Judge. The Sessions Judge has also concurrent jurisdiction for grant of bail but the power to grant bail can only be exercised by the Sessions Judge when the special Judge is not available. Under the Act, the special Judge has been entrusted with the trial of the accused and, therefore, by legislative intent, the special Judge assumes power to grant bail under S. 439, Cr. P. C. ( 9 ) A provision similar to S. 19 (4) of the Act is contained in the R. 194 of the Defence of India Rules, 1971. In AIR 1977 SC 366 , the Supreme Court held that the rules do not confer power to grant bail (which is elsewhere) but only imposes a check on the exercise of the power. ( 10 ) IF the submissions made by the learned counsel for the State that the provisions of Cr. P. C, are not applicable in the face of the Act are accepted, the situation would lead to absurdity. The Act is not at all a complete Code and in fact, there is a complete absence of various important provisions in the Act which are necessary for the smooth progress of the trial e. g. the power of arrest, the power to issue warrants, the power of re-arrest if the accused absconds, the procedure to execute warrants, the power to dispose of the property etc. The learned counsel for the State, however, did not concede that the Act does not contain provisions to enable the Court to act in the above situation, but when he was confronted with the situation in which the accused absconds, the learned counsel for the State conceded that in case of absconding of the accused the special Judge is not empowered under the Act to order for the arrest of the accused and it is only the High Court that can act under Art. 227 of Constitution to re-arrest the accused. Therefore, in such a situation, the High Court would have to supplement the trial by acting under Art. 227 of the Constitution which cannot be the intention of legislature. It is apparent that the legislature has intended the application of the provisions of the Cr. P. C, subject to such special procedure or limits which are found in the Act. Therefore, where the Act is silent on a subject, the Criminal P. C. continues to apply for the smooth progress and conclusion of the trial. The Act also does not contain any provisions for registration of a case at the police station and also about investigation. However, S. 19 of the Act contains modified application of certain provisions. This only implies that the provisions of the Code apply subject to the modifications enumerated in the Act. S. 20 of the Act provides that the provisions of the Act shall override anything inconsistent with any other law. This presupposes that there is a provision in the Act which is inconsistent with the provisions of any other law. but if the Act is silent on a subject, there could be no inconsistency and the general law shall prevail. Again there is no provision in the Act for joinder of trials. Therefore, if S. 223 of the Criminal P. C. is made non-applicable then two or more persons cannot be tried together by the special Judge for the same offence and this would lead to multiplicity of the trial. ( 11 ) IT may further be noted that there are no provisions in the Act relating to an accused of unsound mind as contained in Chap. XXV of the Code. ( 11 ) IT may further be noted that there are no provisions in the Act relating to an accused of unsound mind as contained in Chap. XXV of the Code. If the Code is not to be applied, then there would be large areas where the Act is silent and leaves a Judge to adopt his own procedure which is not at all permissible. Would a special Judge be entitled to alter a Judgment once it is signed excepting for the reasons contained in S. 362, Cr. P. C. ? There are no provisions for the mode of execution of sentence or recovery of fine or for remission as contained in Chap. XXXII of the Code. ( 12 ) IN view of the discussions as enumerated above, it cannot be held that the Act is a complete legislation. It only defines the offence and provides penalties. It also provides certain provisions pertaining to special procedure regarding cognizance, remand, trial etc. but leaves wide areas untouched, Therefore, where the Act does not contain express provisions on a particular subject, the Criminal P. C. would apply without which the special Judge would not be able to proceed with the trial till its conclusion. ( 13 ) I, therefore, hold that the High Court has power under S. 439, Cr. P. C. to entertain the prayer for bail of the accused in offences arising out of Gangster and Anti-social Activities (Prevention) Act, 1986. I also hold that the arguments of the learned Additional Government Advocate that the counsel representing the State in the High Court is not competent to oppose the bail application in cases arising out of the Act, is without substance. The counsel representing the State is competent to oppose bail in cases under the Act. The provisions contained in S. 9 of the Act for the appointment of Public Prosecutor are only meant for the appointment of special Prosecutor in special Court and not for the High Court. ( 14 ) IN the result, the objection raised by the learned Addl. Government Advocate is devoid of merit and without any substance. I therefore, rule out the preliminary objection raised by him. ( 15 ) LET the bail application be listed for orders day after tomorrow. Orders accordingly.