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Himachal Pradesh High Court · body

2001 DIGILAW 3 (HP)

KALI RAM v. STATE OF H. P.

2001-01-04

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.(Oral:- This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as "the Code") read with Article 227 of the Constitution of India is directed against the order dated 15..8.2000 passed by the learned Judicial Magistrate 1st Class (3), Shimla, whereby he has released the respondents - accused 2 to 7 (hereafter referred to as "the accused") on bail in FIR No.169/2000 dated 4.8.2000 under Sections 147,451 and 506 IPC and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter referred to as "the Act") registered at Police Station, Shimla (West). 2. The grievance of the petitioner complainant at whose instance the FIR has been registered (hereafter referred to as "the complainant") is that the accused were arrested by the police on 14.8.2000 and were released on bail by the said Magistrate on 15.8.2000 in hot haste and without application of mind to the facts and circumstances of the case and also in the absence of either the Assistant Public Prosecutor or the Special Prosecutor and that as per the Scheme of the Act, the case against the accused persons is triable by the Court of the Special Judge, therefore, the Magistrate before whom the accused were produced for the purpose of remand had wrongly granted bail to them as he had no jurisdiction to do so. 3. I have heard the learned Assistant Advocate General for the respondent - State but could not have the advantage of hearing anyone for the complainant and the accused as none appeared for them at the time of hearing. 4. In view of the contents of the petition and the submissions made on behalf of the State, it is not in dispute that the accused were arrested for the commission of the aforesaid offences on 14.8.2000 and were produced before the Judicial Magistrate 1st Class (3), Shimla on 15.8.2000 by the police pursuant to the provisions of Section 167 of the Code. At the time of the production of the accused before the Magistrate, an application for their release on bail was also presented. The learned Magistrate, after hearing the learned counsel for the accused persons and the police officer who had produced the accused before him, ordered release of the accused persons on bail subject to certain conditions. At the time of the production of the accused before the Magistrate, an application for their release on bail was also presented. The learned Magistrate, after hearing the learned counsel for the accused persons and the police officer who had produced the accused before him, ordered release of the accused persons on bail subject to certain conditions. The accused persons furnished the requisite bail bonds and were released from custody. 5. The first and foremost question which calls for adjudication in the matter is "whether the learned Magistrate has the jurisdiction to grant bail to the accused persons or has no such jurisdiction?" 6. As per the contents of the petition, the jurisdiction of the Magistrate to grant bail in a case under the Act appears to have been challenged on the premises that the Act is a special enactment, the cases where under can be tried only by a Special Judge appointed under the Act and no other Court has the power to try such offences and, therefore, will have no jurisdiction even to grant bail. 7. To appreciate the question properly, a reference may be made to the relevant provisions of Section 167 of the Code which read as follows: "Procedure when investigation cannot be completed in twenty four hours: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by Section 57, and there are ground for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as suchMagistrate thinks fit, for a terms not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction." 8. On a bare reading of the aforesaid provision, it is clear that as and when a person is arrested and detained in custody by the police (sic) he is required to be produced within 24 hours of his arrest before the nearest Magistrate. Such a Magistrate to whom the accused is forwarded pursuant to these provisions, may be either a Magistrate who has the jurisdiction to try the case against the accused or to commit it for trial or he may be a Magistrate who has no jurisdiction to try the case or commit it for trial. It is also obligatory on the officer incharge of the police station or the police officer making investigation if not below the rank of sub inspector to transmit to such Magistrate a copy of entries in the diary relating to the case while forwarding the accused to the Magistrate. The Magistrate, after perusal of the records, is bound to come either to the conclusion that there are grounds to remand the accused to police custody or to the conclusion that there are not reasons to authorise the detention of the accused in police custody. Li the event of his arriving at the former conclusion, he will remand the accused to the police custody. However, if he arrives at the later conclusion, in that event, if he is a Magistrate having no jurisdiction to try the case or to commit it, the only course open to him is to order the accused to be forwarded to the Magistrate having such jurisdiction. However, if the Magistrate has the jurisdiction to try the case or to commit it for trial, the courses open to him are either to release the accused on bail or to remand him to the judicial custody. 9. However, if the Magistrate has the jurisdiction to try the case or to commit it for trial, the courses open to him are either to release the accused on bail or to remand him to the judicial custody. 9. The next question which calls for determination is "Whether the Magistrate before whom the accused were produced had the jurisdiction to try the case or commit it for trial?" Since one of the offences alleged to have been committed by the accused is an offence punishable under the Act, therefore, such Magistrate has no jurisdiction to try the case as the same is tribal by a Special Judge so designated under Section 14 of the Act. 10. In view of the nomenclature of the Court competent to try such offences as Special Court and in the absence of any specific provision in the Act, it requires examination whether the concerned Magistrate had the jurisdiction to commit the case for trial. 11. Special Court has been defined in Section 2(i) (d) of the Act as a Court of Sessions specified as a Special Court in Section 14 of the Act. 12. The question as to whether such a Court will take cognizance of an offence on commitment of a case to it as required under Section 193 of the Code or on a report under Section 173 of the Code directly forwarded to it by the officer incharge of the concerned police station, was considered by the Honble Supreme Court in Gangula Ashok and another v. State of Andhra Pradesh (AIR 2000 SC 740) wherein it was held as under: "9. Thus the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be court of Session. Hence the particular Court of Sessions, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the code which contains fascicules of provisions for "Trial before a Court of Session". The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the code which contains fascicules of provisions for "Trial before a Court of Session". 10. Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes and interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a magistrate", as provided in the Code. Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a magistrate. 11. Neither in the Code nor in the Act there is any provision whatsoever,, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a Court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge sheet or a complaint can straightway be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal Courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the Court of Session. 12. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the Court of Session. 12. We have noticed from some of the decisions rendered by various High Courts that contentions were advanced based on Sections 4 and 5 of the Code as suggesting that a departure from Section 193 of the Code is permissible under special enactments. Section 4 of the Code contains two sub sections of which the first sub section is of no relevance since it deals only with offences under the Indian Penal Code. However, sub section (2) deals with offences under other laws and hence the same can be looked into. Sub section (2) of Section 4 is extracted below: "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 enactmet for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 13. A reading of the sub section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. This aspect has been emphasized by a Constitution Bench of this court in paragraph 16 of the decision in A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500: AIR 1984 SC 718 : 1984 Cri LJ 647). It reads thus (para 16 of AIR, Cri LJ): Section 4(2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations." 14. Nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a Court of original jurisdiction. Section 5 of the Code reads thus: "5. Saving. - Nothing contained in this 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." 15. This Court on a reading of Section 5 in juxtaposition with Secton 4(2) of the Code, has held, that "it. Only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent, in the absence of any contrary provision in the special Act or any special provision including the jurisdiction or applicability of the Code. “(vide para 128 in Directorate of Enforcement v. Deepak Mahajan, 1994 (3) SCC 440). 16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightway be laid before a Special Court under the Act." 13. In other words, a complaint or a charge sheet cannot straightway be laid before a Special Court under the Act." 13. In view of the above settled position in law, the Magistrate before whom the accused was produced, pursuant to the provisions of Section 167 of the Code, has the jurisdiction to commit the case for trial as the offences are alleged to have been committed within the territorial jurisdiction of the said Magistrate. 14. Though Section 18 of the Act provides that Section 438 of the Code shall not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act but the applicability-of other sections of the Code empowering the Courts to grant bail has not been debarred. Therefore, while opposing the remand of the accused to custody, if any prayed for by the police, the Magistrate who has the jurisdiction to commit the case for trial, has the jurisdiction to entertain an application for grant of bail which such Magistrate is bound to dispose of within the framework of Section 437 of the Code. 15. The case in hand is not of the nature wherein a Magistrate of 1st Class could not have granted bail in exercise of his powers under Section 437 of the Code as none of the offences alleged to have been committed by the accused is punishable with death or imprisonment for life nor it is case of the complainant or the State that the accused or anyone of them had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for 7 years or more or had been convicted on two or more occasions of a non bailable and cognizable offence. 16. It has also been averred in the petition that the bail has been granted in the absence of the Assistant Public Prosecutor or the Special Public Prosecutor appointed under Section 15 of the Act. There is no provision in the Act which makes it obligatory on the part of the Court entertaining the bail application to serve notice of the application for grant of bail on the Special Public Prosecutor or any other Prosecutor. Therefore, this ground is also of no avail to the petitioner. 17. There is no provision in the Act which makes it obligatory on the part of the Court entertaining the bail application to serve notice of the application for grant of bail on the Special Public Prosecutor or any other Prosecutor. Therefore, this ground is also of no avail to the petitioner. 17. Be it stated that the police officer who had produced the accused before the learned Magistrate had not opposed the bail application nor has pressed the remand application on the ground of requirement of custodial interrogation of the accused persons. 18. The accused persons had been released on bail on 15.8.2000 i.e. more than 4 months before. There is nothing cogent and reliable on record which may lead to the conclusion that the accused persons had, in any manner, misused the bail. For this reason also, no interference is called for with the order under challenge. 19. In view of the above discussion and reasons, I do not find any merit or/and substance in the present petition which is accordingly dismissed.