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Rajasthan High Court · body

2000 DIGILAW 724 (RAJ)

District & Sessions Judge, Bharatpur v. Ram Lal

2000-06-02

G.L.GUPTA, J.C.VERMA

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Honble GUPTA, J.–The following two questions have been referred to the Division Bench vide order of Honble the Chief Justice, dated 7.11.1994: 1. Whether the Special Judge hearing the matters under SC/ST Act is empowered to hand over the accused in police custody? 2. Whether in the event of surrender by an accused under the orders of the High Court and the Sessions Judge considers that police custody remand is required in the case, he can grant the remand of police custody? If not, what procedure should be adopted so that the police may take the accused in custody and investigate the matter? FACTUAL MATRIX (2). In connection with FIR No. 190/91, P.S. Kumer, Ram Lal and others filed an application under section 438, Cr.P.C. before this court. The learned Single Judge vide order dated 14.8.91 while dismissing the bail application, observed that if the accused petitioners surrendered before the learned Sessions Judge and applied for bail under section 439, Cr. P.C., the learned Sessions Judge considering the same on merits, will dispose of the same on the day, the accused petitioners surrendered. Thereafter on 17.8.91, the petitioners surrendered themselves before the court of Sessions, Bharatpur, and moved an application under Section 439 Cr. P.C. for bail. The learned Sessions Judge directed the accused to be sent in Judicial custody and produce them before the A.M.J.M. No.1 on 30.8.1991. At the same time, the learned Judge thought it proper to make a reference to this court setting out two questions which have been stated in the first para of this order. The matter was placed before the learned Single Judge, who noticing the cases of Niranjan Singh & another vs. Prabhakar Rajaram Kharote & others (1), Natabar Parida vs. State of Orissa (2) and Bablu vs. State of Rajasthan (3) thought it proper to place the matter before the Honble Chief Justice for constituting Larger Bench for authoratative decision on the reference. This is how the matter has come up before us. REASON FOR REFERENCE TO THE LARGER BENCH (3). Honble Mr. Justice N.L. Tibrewal (as he then was) in the case of Bablu (supra), while considering about the jurisdiction of the Sessions Judge to hear bail application pending investigation, held that he was competent to hear bail application if the accused appeared or surrendered before him. REASON FOR REFERENCE TO THE LARGER BENCH (3). Honble Mr. Justice N.L. Tibrewal (as he then was) in the case of Bablu (supra), while considering about the jurisdiction of the Sessions Judge to hear bail application pending investigation, held that he was competent to hear bail application if the accused appeared or surrendered before him. It was observed at para No. 14 of the report as follows:- ``Whether a bail should be granted or not is a different matter, but the learned Additional Sessions Judge, Karauli, is not right when he observed that the Court of learned Additional Sessions Judge, was not a Competent Court, when the accused appeared before it and put himself in physical control of the said court. In such a situation, the learned Judge, should have decided the application on merits or passed necessary orders on the said application. The Court was free either to admit the accused on bail or remand to judicial custody or other custody. This case was cited before Honble Mr. Justice N.C. Kochhar (as he then was) in the reference. He did not agree with the view taken in the case of Bablu (supra) in view of the decisions of the Apex Court in the case of Natabar Parida (supra) and Niranjan Singh and another (supra). (4). Despite the general notice issued to the members of the Bar, only Shri Jagdeep Dhankhar, Sr. Advocate and Shri A.K. Gupta appeared to make their submissions. On the State side, Shri Satish Purohit and Shri R.P. Meena advanced the arguments. All the learned counsel who appeared before us were of the view that a Judge of the Special Court, established under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act), is not vested with the powers of grant of remand to police custody. (5). The Act came into force with effect from 30.1.1990 when the same was published in the Gazette of India. Section 14 of the Act says that for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act. Section 14 of the Act says that for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act. Section 2(1)(d) of the Act defines `Special Court in these terms: `Special Court means a Court of Sessions specified as a Special Court in Section 14. Section 18 of the Act has set at naught the provisions of Section 438 of the Code of Criminal Procedure, which says; `Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. (6). Earlier there was controversy on the point that whether or not the Special Court, constituted under the Act, is a court of original jurisdiction and can take cognizance directly without committing a case by the Magistrate. The views of the High Courts differed in the matter. The controversy, however, has been set at rest by the recent decision of the Apex Court in the case of Gangula Ashok & Anr. vs. State of A.P. (4), wherein it has been authoritatively pronounced that the complaint or a chargesheet cannot straight way be filed before the Special Court under the Act and the Special Court, being a Court of Sessions, gets jurisdiction only on committal order made by the Magistrate. There is therefore no hesitation in saying that the Special Court, established under the Act is not a court of original jurisdiction. It was brought to our notice that in the case of A.R. Antulay vs. Ramdas Sriniwas Nayak and another (5), wherein the Special Court which was established under the provisions of the Prevention of Corruption Act, 1947 read with provisions of Criminal Amendment Act 1952, it was held that the court of Special Judge was the court of original jurisdiction and it could take cognizance directly, despite the fact that the same was manned by the officer of the rank of Sessions Judge. That case has been noticed by their Lordships while deciding the case of Gangula Ashok (supra). That case has been noticed by their Lordships while deciding the case of Gangula Ashok (supra). There being the direct authority of the Apex Court on the point, the court of Special Judge constituted under the Act cannot be said to be a court of original jurisdiction. (7). A police custody remand can be granted only under Section 167 Cr. P.C. A bare reading of this Section shows that it is only the Judicial Magistrate or when he is not available the Executive Magistrate can order the police custody remand. A Sessions Judge, acting as Special Judge under the Act, can not be equated with Judicial Magistrate in view of the decision of the Apex Court referred to above. It follows that the Special Judge under the Act is not empowered to grant police custody remand of an accused. (8). The next question that arises for consideration is as to what should be done by the Special Judge when a person surrenders before him, stating that he is an accused of an offence under the S.C. & S.T. Act. (9). The Apex Court in the case of Niranjan Singh (supra) has held that a person can move the court for bail under section 439 Cr. P.C. when he is in custody. It has been observed that when the accused appears and surrenders before the Sessions Judge, he can be said to be in the custody of the court. Custody in the context of Section 439 Cr. P.C. is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court : See para 8 of the report. The observations make it clear that simply because a person surrenders before the court, he can not be said to be in the custody of the Court. The custody starts from the time the court passes an order accepting the surrender. (10). The surrender of a person before the Sessions Judge can be in two situations; (i) without the orders of the High Court; and (ii) under the orders of the High Court. (11). In the first situation, where the accused surrenders before the Special Judge for an offence under the Act and files an application for bail u/s 439 Cr. (10). The surrender of a person before the Sessions Judge can be in two situations; (i) without the orders of the High Court; and (ii) under the orders of the High Court. (11). In the first situation, where the accused surrenders before the Special Judge for an offence under the Act and files an application for bail u/s 439 Cr. P.C. and the Judge does not have the record of the case before him and the same cannot be procured on that day and the Public Prosecutor also is not in a position to say anything in the matter, the only proper course to be adopted by the Special Judge is to refuse to accept the surrender and ask the person to surrender himself before the Magistrate having jurisdiction in the matter. On the other hand, if there is material before the Special Judge on which the matter of surrender as also the bail application filed by the person may be considered, he may take the person in custody and decide the bail application. In the event of rejecting the bail application, the only proper order that can be passed by the Special Judge is to direct him to be produced before the Judicial Magistrate having jurisdiction in the matter. (12). Now, the second situation is taken up where a person surrenders himself before the Special Judge under the directions of the High Court. When a person is directed to surrender himself before the Special Judge by the High Court, it pre-supposes that the High Court has considered the material and it was satisfied that there was a case pending investigation against that person under the S.C. & S.T. Act. In that case, the surrender by the person before the Special Court is not without any reason. In that situation, if a person surrenders himself before the Special Judge, the Special Judge cannot be justified to refuse to accept his surrender without recording any reason. In that case, the surrender by the person before the Special Court is not without any reason. In that situation, if a person surrenders himself before the Special Judge, the Special Judge cannot be justified to refuse to accept his surrender without recording any reason. If the surrender is made by a person under an order of the High Court, but without prior notice to the Public Prosecutor, and the Special Judge does not have enough material before him to consider his bail application, the appropriate order that can be passed by the Special Judge is to accept his surrender and take the person in custody and forward him to the Magistrate having jurisdiction in the matter for passing orders as to his proper custody. As already stated, the Special Judge cannot be equated with Magistrate and therefore, he cannot consider about his remand to the police custody. It is only the Magistrate who can pass an order of remand to the police custody under section 167 Cr. P.C. In case, the Special Judge has enough material before him to consider the bail application of the person surrendered under the orders of the High Court, he is not precluded from deciding the bail application of that person after taking the person in custody. However, in the event of rejecting the bail application, the appropriate order, that can be passed, is to forward the person to the Magistrate having jurisdiction, who in his turn shall pass proper order as to his custody. (13). The observations of the learned Single Judge in the case of Bablu (supra) at para 14 of the report read that the Additional Sessions Judge hearing the bail application of an accused can either remand to him to Judicial custody or other custody. The `other custody obviously, means the police custody because there are only two types of custody Judicial custody and Police custody-in the scheme of Code of Criminal Procedure. (14). In view of the foregoing discussion, with utmost respect, I am unable to agree with the learned Single Judge that the Sessions Judge/Additional Sessions Judge, before whom the accused surrenders, while hearing his bail application, can remand the accused to the police custody. (14). In view of the foregoing discussion, with utmost respect, I am unable to agree with the learned Single Judge that the Sessions Judge/Additional Sessions Judge, before whom the accused surrenders, while hearing his bail application, can remand the accused to the police custody. These observations are in conflict with the observations made by the Apex Court in the case of Natabar Prida (supra), wherein, it has been clearly held that there are no inherent powers in a court to remand an accused to any custody unless the power is conferred by law. The Additional Judge/Sessions Judge has not been empowered to pass an order of remand of an accused to the police custody. The observations as to the `police custody in the case of Bablu (supra) in my humble opinion do not lay down correct law. (15). Consequently, the questions are answered as follows: (i) The Special Judge acting under the Act does not have jurisdiction to remand an accused to police custody. (ii) In case, the accused directly surrenders before the court of Sessions Judge/Additional Sessions Judge under the orders of the High Court and he thinks that the matter of police custody requires to be considered, he should forward the accused to the Magistrate having jurisdiction in the matter. When the accused is produced before the Magistrate, he can pass appropriate order with regard to the custody of the accused.