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Madhya Pradesh High Court · body

2001 DIGILAW 442 (MP)

Mirchi alias Rakesh Jain v. State of M. P.

2001-05-18

S.C.PANDEY

body2001
Judgment ( 1. ) THIS revision under Sections 397/401 of the Code of Criminal Procedure is filed against the order dated 17-11-2000, passed by 1st Additional Sessions Judge, Katni, whereby he has refused to grant bail to the petitioner holding that he has no jurisdiction to grant bail for an offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth the Act ). ( 2. ) THE facts of this case are as follows :-- The petitioner Mirchi alias Rakesh is accused of offences punishable under Sections 363, 366 and 376 of the Indian Penal Code as well as under Sections (1) (x) of the Act. A charge-sheet has been filed against the petitioner bearing Crime No. 604/2000 of Police Station, Katni. There is another case, in connection with Crime No. 135/2000, registered at Police Station, Katni, for offences under Sections 294 and 323 of the Indian Penal Code and Section 3 (1) (x) of the Act, in which one Onkar was involved. The petitioner was arrested and he had filed an application under Sections 437 and 439 of the Code of Criminal Procedure and the said Onkar had filed an application under Section 438 of the Code of Criminal Procedure, before the Court-below. ( 3. ) IT is made clear that this revision is confined to the contentions of the petitioner and the conclusion of this Court shall not apply to an application under Section 438 of the Code of Criminal Procedure by any party for the reason, Section 18 of the Act excludes such application for grant of anticipatory bail, in a case registered for an offence under the Act. ( 4. ) THE contention of the petitioner that he was entitled to bail under Section 437 of the Code of Criminal Procedure, has been rejected by the 1st Additional Sessions Judge, Katni. The petitioner has filed this revision claiming that he is entitled to move the appropriate Court for grant of bail in accordance with law on account of the constitution of a Special Court under Section 14 of the Act. ( 5. ) IN this revision the learned counsel for the petitioner has argued that the constitution of a Special Court by Section 14 of the Act in each district is for the purpose of speedy trial of cases triable for the offences under the Act. ( 5. ) IN this revision the learned counsel for the petitioner has argued that the constitution of a Special Court by Section 14 of the Act in each district is for the purpose of speedy trial of cases triable for the offences under the Act. Nevertheless, the Special Court retains its identity as a Court of Session and its nomenclature as a Special Court does not change anything. In this connection, it has been argued that barring the application of Section 438 of the Code of Criminal Procedure and Section 360 thereof, to the extent mentioned in Section 19 of the Act the provision of the Code of Criminal Procedure are not affected by the enactment of the Act. It is argued that the Code of Criminal Procedure applies to all other proceedings including the trial of a case. It has been argued that the overriding effect of the Act mentioned in Section 20 thereof is confined to these sections of the Act which deviate from the provisions of the Code of Criminal Procedure, By way of example, Sections 15, 18 and 19 of the Act were referred to. The contention was that other provisions of the Code of Criminal Procedure, which are not otherwise inconsistent with the Act, shall be applicable to a case filed for commission of an offence under the Act. In this connection, the decision of the Supreme Court in the case of Gangula Ashok and another Vs. State of Andhra Pradesh, reported in 2000 (2) MPHT 101 (SC) = 2000 AIR SCW 279, is read over to me wherein their Lordship of the Supreme Court have held that a Special Court is nothing but a Court of Session. The following observations of the Supreme Court in Paragraph 16, at page 283 are relevant:-- "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 the Special Court under the Act. In other words, a complaint or a charge-sheet cannot straightway be laid before the Special Court under the Act. " The conclusion of the Supreme Court was that since a Special Court is a Court of Session and there was no specific provision under the Act that it can take cognizance of an offence directly, the procedure provides in the Code of Criminal Procedure shall be applicable to it as it is applicable to a Court of Session. The Special Court was not competent to take cognizance of an offence under the Act directly. It was held by the Supreme Court that the charge-sheet has to be filed before a Magistrate authorised to take cognizance of the offence triable by a Court of Session. It was for the Magistrate of competent jurisdiction to take cognizance and commit the case to the Special Court if it found that the offence covered by the charge- sheet is tenable by the Special Court under the Act. ( 6. ) ON parity of reasoning it is being argued by the learned counsel for the petitioner that a Court of Magistrate or a Court of Session is entitled to grant bail under Sections 437 and 439 of the Code of Criminal Procedure and for that it is not necessary to approach the Special Court. ( 7. ) SECTION 437 (1) of the Code of Criminal provides for the power of a Magistrate to grant bail in limited cases subject to restrictions. It states that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or a Court of Session, then the Court is entitled to grant him bail unless the offence committed by such person is punishable with death or imprisonment for life. Thus, the first ban on power to grant bail is that the offence must not be punishable with death or life imprisonment. Thus, the first ban on power to grant bail is that the offence must not be punishable with death or life imprisonment. The second ban on the power to grant bail on the Courts mentioned above is to the effect that in case, the person arrested is charged of cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizance offence, he shall not be entitled to bail. However, the first proviso to Section 437 (1) of the Code of Criminal Procedure lifts the ban on power of grant of bail partially. The bail may still be granted to such person, considering the fact if such person is under the age of sixteen years or is a woman or is sick infirm. The second proviso provides that the effect of previous conviction, as stated above, can also be condoned by the Court aforesaid and if it is satisfied that the interests of justice require that a person is liable to be released on bail for special reasons. Thus, from a reading of Section 437 (1) of the Code of Criminal Procedure, it is clear that in cases, where the offences are not punishable either with death or life imprisonment, a suitably empowered Magistrate has power to grant bail to a person after his arrest or detention. The words other than the High Court or a Court of Session employed in Section 437 (1) of the Code of Criminal Procedure refer to the Court of Judicial Magistrate competent to take cognizance of the offence or before whom the accused is produced. A Magistrate, however, has no power to grant bail in cases where the alleged offence is punishable with death or life imprisonment unless the Magistrate thinks that his case falls within the exception noted above and exercises his discretion in favour of the person arrested or detained. ( 8. A Magistrate, however, has no power to grant bail in cases where the alleged offence is punishable with death or life imprisonment unless the Magistrate thinks that his case falls within the exception noted above and exercises his discretion in favour of the person arrested or detained. ( 8. ) IN this case, the petitioner was charged with an offence punishable under Section 376 of the Indian Penal Code read with Section 3 (1) (x) of the Act, and the offence under Section 376 of the Indian Penal Code is itself punishable with imprisonment for life and, therefore, the Chief Judicial Magistrate, Katni, before whom the charge-sheet was filed, could not have ordinarily granted bail exercising his power under Section 437 (1) of the Code of Criminal Procedure. The applicant could, however, plead that his case is covered by exception given in proviso No. 1 to Section 437 (1) of the Code of Criminal Procedure or if need be under proviso No. 2. ( 9. ) THAT apart, the power to grant bail in his case could be exercised by a Court of Session under Section 349 of the Code of Criminal Procedure. The special powers of High Court or a Court of Session are only subject to one rider that in cases, including the offences punishable with death or imprisonment for life or imprisonment for seven years or more triable by a Court of Session, it is necessary that the Public Prosecutor should be heard before granting bail, unless for the reasons to be recorded by the Sessions Judge concerned, in writing, it is not possible to hear the Public Prosecutor or to give notice thereof to him. It cannot be disputed that a Sessions Judge has such power. The petitioner was arrested at Katni and, therefore, in ordinary course he was entitled to move an application for grant of bail in a Court of Session which has jurisdiction to grant him bail for the offences not covered by the Act. However, the question is that an ordinary Court of Session, not vested with the powers of Special Court, could grant bail the petitioner, if the offences are covered by the Act. In this connection, it may be mentioned that there is no specific provision in the Act conferring the power to grant bail exclusively in the Special Court. However, the question is that an ordinary Court of Session, not vested with the powers of Special Court, could grant bail the petitioner, if the offences are covered by the Act. In this connection, it may be mentioned that there is no specific provision in the Act conferring the power to grant bail exclusively in the Special Court. It may have power to try the case but its powers regarding the grant of bail are not outlined expressly. In view of the decision in the case of Gangula Ashok and another Vs. State of Andhra Pradesh (supra) it can be held that it exercises the powers of a Court of Session under Section 439 of the Code of Criminal Procedure while granting bail. This conclusion is further reinforced by the fact that the Act does not prescribe a procedure other than that followed by a Court of Session during trial. It also does not take away the powers of grant of bail under Section 439 of the Code of Criminal Procedure. The very fact that it bars the exercise of power under Section 438 and Section 360 of the Code of Criminal Procedure goes to show that the Act expressly overrides these powers given under that Code. Apparently, the issuance of notification under Section 14 of the Act would invest with it power to try the offence for a particular area. It would be the exclusive court of Session for the offence triable under the Act. The Special Court is not an ordinary Court of Session when it exercises the powers under the Act. It is child of the statute when it exercises its powers under the Act. The powers of the Sessions Judge of a Sessions Division to allot cases for trial are taken away by virtue of the statutory notification. It would be proper to hold that the Special Court is the Court of Session which is competent to grant bail under Section 439 of the Code of Criminal Procedure. ( 10. ) IT would be further clear that the jurisdiction of the Special Court would cover the entire area given by a notification. The ordinary Court of Session may not have that vast jurisdiction. For example, the Special Court at Jabalpur covers the area of Katni. An Additional Sessions Judge at Katni may have limited jurisdiction as per his posting orders issued by the High Court. The ordinary Court of Session may not have that vast jurisdiction. For example, the Special Court at Jabalpur covers the area of Katni. An Additional Sessions Judge at Katni may have limited jurisdiction as per his posting orders issued by the High Court. Same would be the case of a Sessions Judge entitled to sit at Jabalpur. It is well established that the High Court has full powers of transfer except the first appointment and posting of a Sessions Judge which includes an Additional Sessions Judge. It follows from the authoritative interpretation of Articles 233 and 235 of the Constitution. An ordinary Court of Session exercises its powers to try a case in a smaller concentric circle symbolising to territorial jurisdiction, whereas the Special Court exercises its powers to try a case within a larger concentric circle symbolising his territorial jurisdiction. The above analogy is made only to illustrate the limitation of territorial jurisdiction of an ordinary Court of Session as opposite to a Special Court. The Special Court is given larger territorial jurisdiction by subordinate legislation in form of notification issued under Section 14of the Act, Thus, it would be clear that Sessions Judge exercising his power under Section 194 of the Code of Criminal Procedure can confer, inter alia, upon an Additional Sessions Judge power to try a sessions case. But he cannot confer on him the jurisdiction to try a case under the Act. Impliedly, the territorial jurisdiction of an Additional Sessions Judge is taken away by issuance of notification under Section 14 of the Act. That jurisdiction is conferred upon a Special Judge. In other words, the Special Judge, under the Act, is a Special Sessions Court having territorial jurisdiction over a large area. The notification overrides the other provisions of the Code as per Section 20 of the Act. ( 11. ) IT is, however, argued that the jurisdiction to grant bail is different than that of trying a case. A person when he is arrested at a particular place can move the Court of competent jurisdiction for grant of bail and that Court is authorised to grant him bail, under the facts and circumstances of the case. It is apparent that this argument has no basis in the eye of law. Section 439 of the Code of Criminal Procedure does not confer jurisdiction to any Sessions Court to grant bail. It is apparent that this argument has no basis in the eye of law. Section 439 of the Code of Criminal Procedure does not confer jurisdiction to any Sessions Court to grant bail. It confers power on the Court of competent jurisdiction. Therefore, it would be proper to interpret the words sessions Court in Section 439 of the Code of Criminal Procedure as the special Court under the Act in relation to offence committed under the Act. ( 12. ) IN view of the aforesaid discussion, this revision has no merit. The impugned order dated 17-11-2000 is upheld so far as it says that the Additional Sessions Judge, Katni has no jurisdiction to try the case. However, as indicated above, the argument regarding the power of committal for grant of bait under Section 437 of the Code of Criminal Procedure is accepted. This revision stands dismissed, accordingly.