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Himachal Pradesh High Court · body

2025 DIGILAW 44 (HP)

Asheesh Kuma v. State of H. P.

2025-01-04

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Petitioner Asheesh Kumar has filed the present petition under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as ‘the Cr. P.C.’), for quashing of order dated 7.2.2022, passed in Cr. M.A. No. 271/2022, titled as, ‘State vs. Rumit Singh Thakur’, passed by the learned Judicial Magistrate First Class, Nahan, District Sirmour, H.P. (hereinafter referred to as ‘the Magistrate’). 2. By way of order dated 7.2.2022, the learned Magistrate has released respondent No. 5, on bail, when he was produced by the Police, in connection with FIR No. 19 of 2022, dated 6.2.2022, (hereinafter referred to as ‘the FIR in question’), under Section 3(1)(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC & ST Act’) and Section 153(a) of the Indian Penal Code (hereinafter referred to as ‘the IPC’). 3. Brief facts, leading to filing of the present petition, before this Court, as borne out from the record, are that respondent No. 5 (hereinafter referred to as ‘the accused’) was arrested in the FIR in question and was produced before the learned Magistrate, on 7.2.2022. 4. Learned Magistrate has ordered the release of the applicant, forthwith, by dismissing the application, seeking judicial remand of the accused, by the Police. The accused has been ordered to be released on bail, on the ground that his arrest was against the mandate of Section 41 of the Cr.P.C. 5. While holding so, the learned Magistrate has relied upon the decision of Hon’ble Supreme Court in ‘Arnesh Kumar versus State of Bihar & anr’, reported in 2014 (8) SCC 273 . The FIR in question is stated to have been registered on the statement of petitioner Aashish Kumar (hereinafter referred to as ‘the complainant’). 6. The FIR in question, in this case, has been registered under the provisions of SC & ST Act and the accused was produced before the learned Magistrate. The offences under the provisions of SC & ST Act are exclusively triable by the Special Courts or exclusive Special Courts, as defined in Section 14 of the SC & ST Act. Section 14 of the SC & ST Act is reproduced, as under: “14. The offences under the provisions of SC & ST Act are exclusively triable by the Special Courts or exclusive Special Courts, as defined in Section 14 of the SC & ST Act. Section 14 of the SC & ST Act is reproduced, as under: “14. Special Court and Exclusive Special Court.—(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts: Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act: Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act. (2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible. (3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing: Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.” 7. In the opening line of Section 14 of the SC & ST Act, legislature, in its wisdom, has used the words, “for the purpose of providing for speedy trial”. The trial commences when the charges are framed by the Special Courts or exclusive Special Courts. 8. In the opening line of Section 14 of the SC & ST Act, legislature, in its wisdom, has used the words, “for the purpose of providing for speedy trial”. The trial commences when the charges are framed by the Special Courts or exclusive Special Courts. 8. In view of the provisions of Section 14 of the SC & ST Act, the question, which arises for determination,before this Court is about the fact as to whether act of the learned Magistrate, in releasing the accused on bail, that too, in violation of the directions, issued by the Hon’ble Supreme Court in Arnesh Kumar’s case (supra), is without jurisdiction or not. 9. The Hon’ble Supreme Court in a case titled as, ‘Gangula Ashok & anr. vs. State of A.P., reported in (2000) 2 Supreme Court Cases 504, has elaborately discussed the provisions of Section 14 of the Act. Relevant paragraphs 7 and 8 of the judgment, are reproduced as under: “7. So the first aspect to be considered is whether the Special Court is a Court of Session. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices". Section 6, which falls thereunder says that "there shall be, in every State, the following classes of Criminal Courts, namely : (i) Courts of session;'' (The other classes of criminal courts enumerated thereunder are not relevant in this case and hence omitted.) 8. 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 the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is dearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S.2(l)(d)].” 10. In view of the decision of Hon’ble Supreme Court in Gangula Ashok’s case (supra), there is no legal hesitation for this Court to hold that the trial is only to be conducted by the Special Courts or exclusive Special Courts, as per Section 14 of the SC & ST Act. 11. In view of the decision of Hon’ble Supreme Court, as referred to above, in which, clear cut distinction has been drawn between trials, from inquiry, this Court is of the view that there was no legal impediment for the learned Magistrate to pass the order for releasing the accused on bail, on account of non-compliance of the direction of Hon’ble Supreme Court in Arnesh Kumar’s case (supra). 12. If the facts and circumstances of the present case are seen in the light of decision of a Division Bench of Bombay High Court, in Criminal Writ Petition No. 672 of 2005, titled as, ‘Sanjay Narhar Malshe versus State of Maharahtra’, decided on 29.3.2005, then, there is no occasion for this Court to interfere with the order passed by the learned Magistrate. Relevant paragraphs 8, 9 and 10 of the judgment are reproduced as under: “8. Section 437 of the Code deals with the subject of availability of bail in cases of non bailable offences. Relevant paragraphs 8, 9 and 10 of the judgment are reproduced as under: “8. Section 437 of the Code deals with the subject of availability of bail in cases of non bailable offences. It specifically provides 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 Court of Sessions, then such person may be released on bail, unless there appears reasonable ground for believing that such person is guilty of an offence punishable with death or imprisonment for life and/or such person had 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 for a non- bailable and cognizable offence. At the same time the first proviso to the said section provides that if the accused person happens to be of the age of less than 16 years or a women or is sick or infirm, then such a person can be released on bail. Even in some cases where person is accused of the commission of the offence punishable with death or imprisonment for life can also be released on bail if the court is satisfied that it is just and proper to grant such bail for any special reason. The third proviso to sub-Section 1 of Section 437 provides that the mere fact that an accused person may be required for being identified by the witnesses during the investigation shall not be sufficient ground for refusal of bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such conditions as may be imposed by the court. Obviously, apart from the cases wherein the person is accused of commission of the offence punishable with death or imprisonment for life, the Court of Magistrate has wide power in the matter of grant or refusal of the bail to the accused person, of course, such power is to be exercised judiciously and the same should be apparent from the order passed by the Magistrate. Nevertheless the fact remains that there is no total prohibition against grant of bail merely because a person is accused of commission of offence of serious nature. Besides, if we peruse Section 209 of the Code which deals with the committal proceedings, it is apparent that even in the course of the committal proceedings there is no bar imposed upon the powers of Magistrate in the matter of grant or refusal of bail. Clause (b) of Section 209 clearly provides that while dealing with the accused persons appearing and brought before the Magistrate having committed the matter as the same is triable exclusively by the Court of Sessions, while the Magistrate is enjoined to commit the proceedings to the Court of Sessions or the Special Court constituted under any special statute, the accused may be remanded to the custody until such committal proceedings are complete, subject to the provisions of the Code relating to the bail. In other words while the Magistrate is empowered to remand the accused to the custody until the conclusion of the committal proceedings, that is to say, till the proceedings are placed before the Court of Sessions or the Special Court, as the case may be, the powers of the Magistrate either to grant the bail if asked for or to refuse the same are not restricted in any manner. On the contrary provision of Section 209 make it very clear that the Magistrate while dealing with the committal proceedings is fully empowered either to grant or refuse the bail depending upon the facts of the case, albeit he has to exercise the discretion judiciously in that regard as rightly submitted by the learned APP. 9. The learned advocate for the Petitioner is also justified in contending that whenever the Legislature has thought it fit to provide any embargo over the power of the Magistrate in the matter of grant of bail to the accused person, the legislature has made necessary provision in that regard and one such example is Section 36-A in the NDPS Act. The learned advocate for the Petitioner is also justified in contending that whenever the Legislature has thought it fit to provide any embargo over the power of the Magistrate in the matter of grant of bail to the accused person, the legislature has made necessary provision in that regard and one such example is Section 36-A in the NDPS Act. Section 36-A(1)(b) of NDPS Act clearly provides that notwithstanding anything contained in the Code of Criminal Procedure where a person accused of or suspected of the commission of offence under the NDPS Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the remand of such person to such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate provided that in cases which are triable by the Special Magistrate where such Magistrate considers when such person is forwarded to him as aforesaid, or upon or at any time before the expiry of the period of detention authorised by him, that the remand of such person to the custody is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction. This apparently discloses that the Magistrate in case of the persons accused of commission of the offence under NDPS Act and in cases which are triable by the Sessions Court even if he considers the remand of such person to the custody to be unnecessary, he cannot grant the bail, but he will have to direct the person to be forwarded to the Sessions Court having jurisdiction. That is not the case in relation to a person accused of commission of offence under the said Act. There is no provision in the said Act in pari materia to Section 36-A of the NDPS Act. The said Act also does not provide any embargo over the powers of the Magistrate to grant bail. Considering the same merely because the offence under the said Act is exclusively triable by the Special Court in terms of the provision of Section 14 of the said Act, it cannot be said that the Magistrate will have no power to grant the bail. Considering the same merely because the offence under the said Act is exclusively triable by the Special Court in terms of the provision of Section 14 of the said Act, it cannot be said that the Magistrate will have no power to grant the bail. In our considered opinion, therefore, taking into consideration all the provisions of the said Act as well as the provisions of the Code of Criminal Procedure, it is apparent that the Magistrate has power to grant the bail even at the time of committal proceedings, if the facts of the case do not justify remanding of such person to the custody. The exclusive jurisdiction of the Special Court to try the offence that by itself could not be criteria to decide about the absence of the powers to the Magistrate to grant bail in case of offences under the said Act. Unless the special statute which gives exclusive jurisdiction to the Special Court for the trial of the offences thereunder makes a specific provision like in the nature of Section 36-A of the NDPS Act or on similar lines, specifically excluding the powers of the Magistrate to grant the bail to the persons accused of commission of such offence, there cannot be any restriction on the powers of the Magistrate to grant the bail, merely because the person is accused of the offence punishable under the said Act, unless, of course, the offence is punishable with death or life imprisonment. 10. We are fortified in the above view by the decision of the Kerala High Court and the Allahabad High Court which are relied upon by the learned advocate for the Petitioner. In fact the decision of the Kerala High Court is directly in relation to the offence under the said Act. In the case of Shanu (supra) the learned Single Judge of the Kerala High Court after taking note of the provision of the said Act as well as Section 437 of Code held that "it is clear that the J.F.C.M.'s Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub-cls. In the case of Shanu (supra) the learned Single Judge of the Kerala High Court after taking note of the provision of the said Act as well as Section 437 of Code held that "it is clear that the J.F.C.M.'s Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub-cls. (i) to (xv) of sub-s. (1) of S. 3 of the Act." While delivering the said decision the learned Single Judge after taking note of Section 437 of Criminal Procedure Code has observed that "the Magistrate is competent to release an accused, either appeared or brought before him, if the offence alleged is not punishable with death or imprisonment for life." Similarly in Ram Bharoshi's case (supra) the learned Single Judge of Allahabad High Court held that " it is abundantly clear that there is no prohibition on a Magistrate to grant bail in a Sessions triable case, unless it is punishable with death or imprisonment for life, and it is absolutely necessary that the Magistrate give up the erroneous practice of refusing to consider or grant bails in such cases where there is no prohibition under the Code of Criminal Procedure." While delivering the said Judgment it was observed thus "13. There are a number of offences in the Penal code which are not punishable with death or imprisonment for life, but they are triable by the Court of Sessions, where the Magistrates invariably refuse bail, because they entertain a wrong notion that they are disentitled to grant bails in such cases, even if the case is one where bail ought to have been granted on merits. this approach is also in the teeth of a Division Bench decision of this Court, Vijay Kumar and ors. v. State of U.P. and Ors. 14. The result of this unhealthy practice is that a person against whom an FIR is lodged relating to any Sessions triable offence, which on a plain reading appears to be a case of false or malicious prosecution, uncorroborated by any independent material, the accused is left at the mercy of the police, in whose favour the Magistrate has virtually abdicated his jurisdiction. An accused may have to remain in jail for some time before his bail application is heard and granted by the Sessions Court, after the Magistrate's routine rejection of his prayer for bail even in those minor Sessions triable offences where there may be no need for taking an accused in custody for the purpose of investigation, or where palpably he appears to have been implicated falsely, and there are no other attendant circumstances disentitling the accused from an order of bail. A sting in jail can be a source of great humiliation for a maliciously prosecuted accused who enjoys some social status." We are in respectful agreement with the view expressed by the learned Single Judges of the Kerala High Court as well as Allahabad High Court in the above referred judgments.” 13. In view of the above, this Court is of the considered opinion that the learned Magistrate has complied with the direction of the Hon’ble Supreme Court in Arnesh Kumar’s case (supra). As such, there is no substance in the present petition and the same is accordingly dismissed. 14. The pending application(s), if any, are also disposed of.