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2014 DIGILAW 560 (MP)

Bal Kumar Kaushik v. State Of M. P.

2014-05-07

A.M.KHANWILKAR, K.K.TRIVEDI

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ORDER : A. M. KHANWILKAR, CJ. According to the applicant, the offence allegedly committed by the applicant is covered by the provisions of the Madhya Pradesh Recognized Examination Act 1937. As a result, the applicant cannot be tried for the offences punishable under the provisions of Indian Penal Code and, therefore, deserves to be released on bail. To buttress this argument reliance has been placed under sections 4 and 5 of the Criminal Procedure Code. 2. The fact that the offences punishable under the provisions of Act of 1937 have been applied in the present case is not in dispute. 3. The question is: whether the provisions of sections 4 and 5 of the Code would disentitle the prosecution to proceed against the applicant for offences punishable under sections 419, 320, 467, 468, 471 and 120-B of Indian Penal Code, which are in addition to or at best overlapping to some extent with the offences punishable under the provisions of the Act of 1937? 4. In the first place, section 4 of the Code cannot be construed to mean that it ousts the application of offences under the provisions of Indian Penal Code in cases covered by the provisions of the Act of 1937. Emphasis was placed on sub-section (2) of section 4 of the Code, which deals with the investigation to be done in respect of the offences under any other law. This provision cannot be construed to mean that it ousts the application of offences under the provisions of Indian Penal Code, even if the fact situation of the case warrants invocation of those offences. Similarly, section 5 of the Code will be of no avail to the applicant since the Act of 1937 does not contain any express provision that if the acts of commission and omission constitute offence under the Act of 1937 that person cannot be tried for any other offence under the provisions of Indian Penal Code though attracted. In absence of such express provision we fail to understand as to how section 5 would come to the aid of applicant. Section 5 of the Code makes it amply clear that provisions of the Code shall ordinarily apply unless specific provision to the contrary is provided for. 5. Learned counsel for the applicant submits that maxim generalia specialibus non derogant is attracted in the fact situation of the present case. Section 5 of the Code makes it amply clear that provisions of the Code shall ordinarily apply unless specific provision to the contrary is provided for. 5. Learned counsel for the applicant submits that maxim generalia specialibus non derogant is attracted in the fact situation of the present case. It is not possible to accept this submission keeping in mind the provisions of the Act of 1937 and including sections 4 and 5 of the Code. More so, in our opinion, it is premature for the applicant to pursue this contention for the simple reason that, admittedly, investigation of the case is still pending. This contention can be pursued only after the evidence is collated by the Investigating Officer and presented along with the Challan before the appropriate Court. This contention, in our opinion, cannot be the basis to grant bail to the applicant. 6. After some deliberation, learned counsel for the applicant submitted that in that case applicant would wait till filing of the Challan, instead of inviting any finding of this Court, on the basis of the material already available with the investigating agency, as any finding by this Court, at this stage, would prejudice the applicant one way or the other. 7. As a result, we permit the applicant to withdraw this application with liberty to raise all contentions available to the applicant after filing of the Challan by way of fresh bail application, which will be considered on its own merits. 8. This application stands disposed of. C.C., as per rules.