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2017 DIGILAW 1414 (PAT)

Manish Kumar @ Lokesh Kumar v. State of Bihar

2017-11-06

KISHORE KUMAR MANDAL, MADHURESH PRASAD

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MADHURESH PRASAD, J.:–Pursuant to the order of reference dated 10.08.2017, passed by the learned Single Judge file has been placed before us to answer the point of reference which is as follows: “ if the provision i.e., Section 76(2) of the Bihar Prohibition and Excise Act, 2016 ( for short ‘the Act’) is void in view of requirement of Article 254 of the Constitution of India, the Registry can be restrained to entertain anticipatory bail petition in compliance of the order of the coordinate Bench i.e., order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017.” 2. Heard both sides. Section 76(2) of the Act reads as follows:— “76(2) Notwithstanding anything mentioned in sub-section (1) above, nothing in Section 360 of Code of Criminal Procedure, 1973 ( Act 2 of 1974), Section 438 of Code of Criminal Procedure, 1973 ( Act 2 of 1974) and Probation of Offenders Act 1958 ( 20 of 1958) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act” 3. Mr. Yogesh Chandra Verma, Mr. B.P. Pandey and Mr. B.K. Sinha, Sr. counsels have appeared for the petitioner. It is contended that Section 76(2) of the Act, in so far as it purports to bar the remedy as provided under Section 438 of the Code of Criminal Procedure ( for short ‘the Code’) is concerned, suffers from non compliance with the provisions of Article 254(2) of the Constitution of India. It is urged that the Code is a Central Act whereas the Act in- question has been enacted by the State. The provisions of Section 76(2) of the Act which bars such remedy under Section 438 of the Code is directly in conflict with the Code and is, therefore, repugnant as in a situation like the present one Article 254(2) mandates that such provisions which is/are repugnant to the provisions of the earlier law made by the Parliament with respect to that matter shall prevail in the State only if it has been reserved for the consideration of the President and has received his assent. In the present case, the said requirement of Article 254(2) has not been complied with. The provisions of Section 76(2) of the Act has not till date been reserved for consideration of the President and/or has not received Presidential assent. In the present case, the said requirement of Article 254(2) has not been complied with. The provisions of Section 76(2) of the Act has not till date been reserved for consideration of the President and/or has not received Presidential assent. It is further argued that this position in law has been noticed in the order of reference. In the light of the aforesaid facts, it has been argued that Section 76(2) of the Act being repugnant to the Central law is held void and, therefore, shall not be a restriction to entertain application for grant of anticipatory bail under the Code. 4. Alternatively, it has been urged that without going into the issue of repugnancy of the Provisions of the Code, this Court, in the light of the order of reference, should clarify that the Registry of the Court shall not be entitled to refuse or object to the entertainment of such petition filed under Section 438 of the Code. The question whether an accused under the Act is entitled to the remedy under Section 438 of the Code, would only be the subject matter of judicial scrutiny and discretion of the Court. The same could not be left to be examined by the Stamp Reporter or the Registry of the Court. The order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017 to the extent it restrains the Registry from entertaining anticipatory bail petition is unsustainable in law. The Registry shall be entitled to examine only application of filing procedure contained in the Rules of the High Court at Patna. The maintainability of the application should be left to the judicial consideration of the Court. 5. It is stated that a large number of applications for prearrest bail are pending for filing in view of the order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017. He submits that in compliance of the said order dated 07.07.2017 the stamp reporter/registry is not declaring these bail applications as defect free and as such the applicants/petitioners therein are being denied judicial consideration of their case. 6. For better appreciation of the circumstances leading to the reference in issue we consider it appropriate to reproduce relevant extract of paragraph nos. 11 to 17 and 35 from the said order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017* which read as under:— “11. 6. For better appreciation of the circumstances leading to the reference in issue we consider it appropriate to reproduce relevant extract of paragraph nos. 11 to 17 and 35 from the said order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017* which read as under:— “11. I have heard learned counsel for the parties. 12. I take judicial notice of the fact that today itself more than 45 cases for grant of pre-arrest bail in the matters arising out of the offences under ‘the Act’ have been listed before me. I also take judicial notice of the fact that large number of applications for grant of prearrest bail as also for grant of regular bail are being filed before this Court since the date of coming into force of ‘the Act’ ,by persons who have been made accused of the offences under ‘the Act’. 13. In order to appreciate as to whether or not an application under Section 438 of the Cr. P.C. would be maintainable in the cases arising out of the offences under ‘ the Act’, at this juncture, it would be appropriate to extract sub- section (2) of Section 76 of ‘the Act’ The said provision reads as under:- “76. Offences to be Cognizable and Non- Bailable.— (2) Notwithstanding anything mentioned in subsection (1) above, nothing in Section-360 of Code of Criminal Procedure, 1973 (Act 2 of 1974), Section-438 of Code of Criminal Procedure, 1973 (Act 2 of 1974) and Probation of Offenders Act 1958 (20 of 1958) shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.” 14. It would be manifest from a reading of sub-section (2) of Section 76 of ‘the Act’ that it disentitles an accused committing an offence under ‘the Act’ the privilege of pre-arrest bail. In view of specific embargo of sub-section (2) of Section 76 of ‘the Act’, I am of the considered opinion that privilege of pre-arrest bail under Section 438 of the Cr.P.C. is not available to the persons on accusation of having committed an offence under ‘the Act’. 15. Thus, as there is statutory bar under sub-section (2) of Section 76 of ‘the Act’, an application under Section 438 of the Cr.P.C. would not be maintainable, either before this Court or before the court below. 16. 15. Thus, as there is statutory bar under sub-section (2) of Section 76 of ‘the Act’, an application under Section 438 of the Cr.P.C. would not be maintainable, either before this Court or before the court below. 16. So far as the submission of the learned counsel for the petitioner in support of cases being listed as defect free cases before the Court is concerned, I am of the considered opinion that in exercise of judicial discretion, this Court cannot give any direction contrary to the statute or rules made thereunder as it is to be exercised only when there are more than one possible lawful solutions. Simply because the Registry is placing pre-arrest bail applications as defect free cases and pre-arrest bail applications are allowed by some of the Benches, I do not deem it proper to entertain applications under Section 438 of the Cr.P.C. in the matters in which the accused persons are facing accusation under ‘the Act’. 17.To the submissons made by the learned members of the Bar that other co-ordinate benches of this Court have entertained anticipatory bail applications in cases arising out of ‘the Act’, I can only say that no order or judgment passed by any co-ordinate Bench has been brought to my notice where this aspect of maintainability has been addressed. When there is no ambiguity in the language of ‘the Act’ which prohibits application of Section 438 of the Cr. P.C. in relation to commission of offence under ‘the Act’, the same will have to be strictly followed and adhered to by all Courts. The Courts are required to follow law as declared by the competent legislative act or binding precedents and not their breach.” & “35. Having held thus, I direct the learned Registrar General of this Court to direct the Stamp Reporters not to place applications filed under Section 438 of the Cr. P.C. arising out of cases under the provisions of ‘the Act’ before the Bench, as defect free cases, henceforth.” 7. The learned Advocate General made his elaborate submissions. At the very outset, he raises a preliminary objection regarding the maintainability of the present proceeding touching upon the validity/ vires of the Act. P.C. arising out of cases under the provisions of ‘the Act’ before the Bench, as defect free cases, henceforth.” 7. The learned Advocate General made his elaborate submissions. At the very outset, he raises a preliminary objection regarding the maintainability of the present proceeding touching upon the validity/ vires of the Act. He would argue that such challenge to the provisions of the Act on the ground of repugnancy and/or for declaring the provisions of Section 76(2) of the Act void can be examined in a properly constituted application praying for such relief wherein the Advocate General of the State is given an opportunity to contest the same. In a collateral proceeding, such declaration cannot be made as has been done by the reference order dated 10.08. 2017. In the present case, there is no challenge to the vires of the provisions of the Act. Placing judgments of the Hon’ble Apex Court, he would urge whenever such challenge is made the Court should be cautious and slow in declaring the provisions of the Act ultra vires the Constitution of India, as the Act reflects the will of the people. Learned Advocate General also elaborated on the merits of the case on this issue. 8. Having sketched the limitation of the Court in consideration of such challenge to the statutory provision, learned Advocate General points out that the validity of the Act as a whole, which includes Section 76(2) (under part–VIII of the Act), was the subject matter of two writ petitions filed in this Court bearing CWJC No. 8640 of 2016 (Abhay Kumar Mishra Vs. The Union of India & Ors.) and CWJC No. 17277 of 2016 (Dr. Rai Murari Vs. The State of Bihar & Ors.). A transfer petition (civil) Nos. 2089-2090 of 2016 has been preferred before the Hon’ble Apex Court. Vide an order dated 02.01.2017 passed in the said Transfer case preferred by the State of Bihar the Apex Court has issued notice and tagged those matters with SLP (s) Nos. 29749-29763 of 2016. While doing so, the Apex Court has restrained this Court from proceeding in those two writ petitions. Vide an order dated 02.01.2017 passed in the said Transfer case preferred by the State of Bihar the Apex Court has issued notice and tagged those matters with SLP (s) Nos. 29749-29763 of 2016. While doing so, the Apex Court has restrained this Court from proceeding in those two writ petitions. On the strength of the aforesaid, it has been argued by the learned Advocate General that since the matter regarding validity /vires of the Act is pending consideration before the Apex Court, this Court may not proceed to hear and decide the vires or sustainability of the provisions under the Act. 9. The scope of reference in the instant proceedings is limited. This Court is also conscious of the fact that we are not exercising appellate jurisdiction over the order dated 10.08.2017 passed in Cr. Misc. No. 21578 of 2017. It is also an admitted position that the issue of vires/validity/repugnancy of the provisions of the Act including Section 76(2) is sub judice and yet to be decided by the Apex Court in the pending proceedings discussed above, though the same apparently was not brought to the notice of the learned Single Judge while passing the order of reference dated 10.08.2017. We, therefore, shall not go into the aspect of repugnancy. 10. The order of reference calls upon this Court to examine and settle as to whether if the provision i.e. Section 76(2) of the Act is void in view of requirement under Article 254(2) of the Constitution of India, the Registry of the Court, in the facts of the case, can be restrained to entertain anticipatory bail petition in compliance of the order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017. The submission of Mr. Y.C.Verma is that the vires of the provisions of the Act is not required to be gone into by this Court as there is no pleading to this effect. The order of reference also does not require this Court to delve into this aspect of the matter. He has argued that his alternative submission be examined by this Court in light of the order of reference. Learned Advocate General has not advanced much submission on the issue whether the Registry of the Court or the Stamp Reporter can be restrained from accepting filing of the petition under Section 438 of the Code in respect of any offence under the Act. 11. Learned Advocate General has not advanced much submission on the issue whether the Registry of the Court or the Stamp Reporter can be restrained from accepting filing of the petition under Section 438 of the Code in respect of any offence under the Act. 11. Having detailed the narrow confines of our consideration we would consider to examine the submission made by the counsel for the petitioner. It has been argued repeatedly by Mr. Verma that whether the Court would exercise its jurisdiction under Section 438 of the Code be left to the judicial consideration/discretion of the High Court keeping in view the legal position arising from the relevant provisions of the Act under which the petitioner is accused. In a given case, merely Sections of the Act may be added by the police without there being any foundational fact/ allegation. In such cases the offence under the Act may not be made out at all. It has been argued that remedy as provided under section 438 of the Code, in view of the bar provided under Section 76 of the Act, would be barred only for the offences committed under the Act and not in cases where the ingredients of the offences under the Act are not made out. 12. Having considered the various submissions we observe that the present one is not a solitary case where the statute has barred remedy under Section 438 of the Code. A Bench of this Court in the case of Bisheshwar Mishra Vs. The State of Bihar [ 2016(4) PLJR 1058 ] considered in great length issue regarding grant or refusal of the pre-arrest bail by this Court in relation to offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( for short ‘SC/ST Act’) wherein also remedy of Section 438 of the Code has been barred. The Division Bench relying upon the judgment of the Hon’ble Apex Court in the case of Vilas Pandurang Pawar Vs. State of Maharashtra [ (2012) 8 SCC 795 ] has ruled as under:— “25. The Division Bench relying upon the judgment of the Hon’ble Apex Court in the case of Vilas Pandurang Pawar Vs. State of Maharashtra [ (2012) 8 SCC 795 ] has ruled as under:— “25. It is clear from a close reading of the decision of the Supreme Court, in Vilas Pandurang Pawar (supra), that though Section 18 of the Act creates a bar in invoking Section 438 of the Code, a duty is cast on the Court to verify the averments in the Complaint/First Information Report to find out whether an offence, under Section 3 of the Act has been prima facie made out against the accused seeking pre-arrest bail or not. In case, a prima facie case, under the Act, is made out against the accused, the bar, under Section 18 of the Act, would, immediately, come into play. 26. On a careful consideration of the provisions prescribed under Section 18 of the Act, the law laid down by the Patna High Court Cr. Misc. No. 25276 of 2016 Supreme Court, in State of M.P. Vs. Ram Kishna Balothia (supra) and Vilas Pandurang Pawar (supra) and by the Full-Bench of the Rajasthan High Court, in Virendra Singh (supra), and othe other decisions of the different High Courts noticed hereinabove the answer to the first three questions framed by us becomes abundantly clear. 27. In view of specific embargo of Section 18 of the Act and the binding precedents of the Supreme Court noticed above, we hold that pre-arrest bail, under Section 438 of the Code, is not available to persons committing offences under the Act. We further hold that Section 18 of the Act totally bars a court from either making a judicial scrutiny of the case or granting pre-arrest bail to the accused of committing offence under the provisions of the Act. However, from the law laid down by the Supreme Court in Vilas Pandurang Pawar (supra), it becomes clear that notwithstanding the embargo created by Section 18 of the Act against grant of pre-arrest bail, a duty is cast upon the Court, hearing an application under section 438 of the Code, to determine, on the basis of the statements, made in the complaint/First Information Report, if the ingredients of any offence, under the Act, are made out or not. If the ingredients of the offence are attracted against a person seeking prearrest bail, the embargo of Section 18 of the Act would, Patna High Court Cr. Misc. No. 25276 of 2016 immediately, come into play against such person; but merely because a criminal case is instituted against a person under the Act without there being any allegation against him of having committed an offence under the Act, the Court can very well entertain an application under Section 438 of the Code and under such circumstance, the embargo, created under Section 18 of the Act, would not come into play inasmuch as the legislative intent is to exclude the power of the Court to grant pre-arrest bail to a person apprehending arrest, who is alleged to have committed an offence under the Act and not a person, whose name finds place in the column of the accused either in Complaint or in the First Information Report without there being any accusation against him of having committed an offence under the Act.” 13. In respect of SC/ST Act where there is statutory bar to the exercise of power of grant of anticipatory bail under Section 438 of the Code, the Hon’ble Apex Court in the case of Vilas Pandurang Pawar (supra) and the judgment of the Division Bench of this Court in the case of Bisheshwar Mishra (supra) cast a duty upon the Court considering the pre-arrest bail of an accused, to look into the allegations made in the F.I.R. /complaint to find out whether ingredients of the offence under the SC/ST Act are prima facie made out or not before exercising its judicial discretion under Section 438 of the Code. The law regarding consideration of application under Section 438 of the Code for grant of pre-arrest bail to the accused under an Act where there is a bar to grant of anticipatory bail has been settled as aforesaid. This aspect of the matter was obviously not brought to the notice of the learned Single Judge while passing the order dated 07.07.2017 in Cr. Misc. No. 26109 of 2017 when the Registry of the Court was restrained from entertaining anticipatory bail petition in respect of the offence under the Act. As a result application under Section 438 of the Code in respect of offence punishable under the Act would not be presentable for filing. Misc. No. 26109 of 2017 when the Registry of the Court was restrained from entertaining anticipatory bail petition in respect of the offence under the Act. As a result application under Section 438 of the Code in respect of offence punishable under the Act would not be presentable for filing. The effect of the same is that applicants-petitioners are being denied consideration of their prayer for pre-arrest bail by the Court in terms of the law as noticed above. 14. In the result, this Court, in the light of the discussions made above, answers the reference by holding that the Registry cannot be restrained to entertain anticipatory bail petition in compliance of the order dated 07.07.2017 passed in Cr. Misc. No. 26109 of 2017. Having answered the reference, we remit the matter to the learned Single Judge for disposal of the cases in accordance with law. KISHORE KUMAR MANDAL, J.:–I agree.