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Baldeo Prasad Alias Baldeo Prasad Keshri v. The State Opp. Party.
Factual and Procedural Background
Two criminal miscellaneous petitions raising a common question of law were referred to a Division Bench by Brother N.P. Singh and heard together. The common question was whether an application for anticipatory bail under section 438 of the Code of Criminal Procedure by an accused of an offence under section 7 of the Essential Commodities Act (E.C. Act) should be filed before the special courts constituted under section 12A of the E.C. Act, 1955, or before the regular court of session under section 438 of the Code.
Both petitioners had applied for anticipatory bail before the learned Sessions Judge of Gaya, who held that he had no jurisdiction because special courts had been established under the E.C. Act. The matters were referred to a Division Bench and heard by Hari Lal Agrawal, J., with Nagendra Prasad Singh, J. concurring.
The court also considered the facts of the two petitions on their merits:
- First petitioner (Cr. Misc. No. 5623 of 1985): Alleged to have been found in possession of six tins of kerosene oil situated outside shop premises in Gaya. The petitioner was said to be about 65 years old and the business was carried on by his son. The tins were on a busy market road, and it could not be definitively said they belonged to the petitioner's son.
- Second petitioner (Cr. Misc. No. 5696 of 1985): A fair price shop dealer whose shop was inspected by a Supply Inspector on 27.5.85, leading to alleged irregularities regarding stock. The petitioner's defence was that the inspector visited his residence and did not inspect the business premises.
The court ultimately allowed Criminal Miscellaneous No. 5623 of 1985 (granting anticipatory bail subject to conditions) and dismissed Criminal Miscellaneous No. 5696 of 1985. Nagendra Prasad Singh, J. agreed with the judgment.
Legal Issues Presented
- Whether an application for anticipatory bail under section 438 of the Code by an accused of an offence under section 7 of the Essential Commodities Act should be filed before the special courts constituted under section 12A (and related provisions) of the E.C. Act or before the regular court of session under section 438 of the Code.
- Whether clause (d) of section 12AA(1) of the E.C. Act, which limits release on bail to a special court or the High Court, applies to anticipatory bail as well as to regular bail (i.e., whether the term "bail" in that clause covers anticipatory bail situations).
Arguments of the Parties
Mr. Shakeel Ahmad Khan (Counsel for the second petitioner)
- Argued that the special courts constituted under the E.C. Act have power similar to that of a court of session to grant anticipatory bail under section 438 of the Code.
- Relied on a decision of a learned single Judge of the Karnataka High Court in S. Murugeshappa v. State of Karnataka (1984 Criminal Law Journal 1819), which held that special courts have power similar to sessions courts in respect of anticipatory bail.
Mr. Ashok Kumar Keshri (Counsel for the first petitioner)
- Contended that the power to grant anticipatory bail could be exercised only by a court of session constituted under the Code.
- Submitted that there is a fundamental distinction between anticipatory bail (where the accused apprehends arrest and is not in custody) and regular bail (where the accused is in custody), and sought support from Balchand Jain v. State of Madhya Pradesh ((1976) 4 SCC 572 : AIR 1977 SC 366) — a case under the Defence & Internal Security of India Rules, 1971 — to argue that special provisions should not be construed as displacing the Code's provisions on bail.
View of the Sessions Judge of Gaya
- Took the view that he had no jurisdiction to entertain anticipatory bail applications in cases under the E.C. Act because special courts had been constituted for that purpose.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raj Kumar Gupta v. The State of Bihar (Criminal Misc. No. 2797 of 1985) (order dated 11.4.1985) | Held that a Special Court under the E.C. Act shall be deemed to be a 'Court of session' and the special Judge has the same power to entertain an application for anticipatory bail as a sessions court. | The Court treated this decision as supportive of equating the special court with a court of sessions and as authority for the proposition that special courts can entertain anticipatory bail applications. |
| Banshidhar Gupta v. The State of Bihar (Criminal Misc. No. 4712 of 1985) (order dated 1.7.85) | Held that the special judge is subordinate to the provision under section 438 of the Code and for purposes of section 438 the judge under the E.C. Act is not a sessions court. | The Court rejected this view, holding that the learned Sessions Judge of Gaya (who followed this reasoning) was correct in declining jurisdiction; the Division Bench did not accept Banshidhar Gupta's reasoning. |
| S. Murugeshappa v. State of Karnataka (1984 Criminal Law Journal 1819) | Held that in the matter of grant of anticipatory bail, special courts constituted under the E.C. Act have power similar to that of the court of session under section 438 of the Code. | The Court considered this decision supportive of the proposition that special courts possess the same jurisdiction as sessions courts to grant anticipatory bail. |
| Balchand Jain v. State of Madhya Pradesh ((1976) 4 SCC 572 : AIR 1977 SC 366) | Interpreted a non-obstante clause in the Defence & Internal Security Rules, 1971 that restricted release on bail of persons accused/convicted under those Rules while in custody unless certain conditions were satisfied; demonstrated that such a provision restricts the Code but does not itself create new bail powers. | The Court discussed this precedent in the context of Mr. Keshri's submission that special provisions should not be read as displacing the Code. The Court distinguished Balchand Jain on the ground that clause (d) of section 12AA(1) of the E.C. Act expressly and completely debars other courts from releasing on bail accused under the E.C. Act, a feature not present in the Defence Rules considered in Balchand Jain. |
Court's Reasoning and Analysis
The court's analysis proceeded from statutory provisions introduced by Act No. 18 of 1981 amending the E.C. Act. The reasoning steps in the opinion are as follows:
- The amended section 12A permits the State Government to constitute special courts by notification; the special court consists of a single judge appointed by the High Court, who must either be qualified for appointment as a High Court judge or have served for at least one year as a Sessions Judge or Additional Sessions Judge. The court observed that the qualification for a special court judge is not inferior to that of a Sessions Judge and may be higher.
- Clause (d) of section 12AA(1) was extracted and considered: it provides that, save as otherwise provided, no person accused or suspected of an offence under the E.C. Act shall be released on bail by any court other than a special court or the High Court. The court treated this provision as a prohibition on other courts granting bail in such cases.
- Section 12AB was noted, which allows the High Court to exercise powers under chapters XXIX and XXX of the Code as if a special court were a court of sessions for the purpose of appeals and revisions; the court viewed this as evidencing no distinction in status between special courts and sessions courts.
- Section 12AC was then quoted: it expressly provides that, save as otherwise provided in the Act, the provisions of the Code (including provisions as to bail and bonds) apply to proceedings before a special court, and for that purpose the special court shall be deemed to be a court of sessions. The court emphasized that this provision clearly declares the special court to be deemed a court of sessions and places the two on equal footing.
- On the basis of these provisions (12A, 12AA(1)(d), 12AB and 12AC), the court concluded that special courts have the status and powers equivalent to a court of sessions. Consequently, they can exercise the same power as a sessions court to entertain anticipatory bail applications under section 438 of the Code.
- The court then addressed the limiting effect of clause (d) of section 12AA(1), which confines the power to release on bail of persons accused under the E.C. Act to special courts or the High Court. The court read the preamble of the amending Act as indicating that these special provisions were intended to deal more effectively with hoarding/blackmarketing and that one effect of these provisions was to take away the jurisdiction of regular sessions courts under the Code to entertain bail applications in such cases.
- Regarding the contention that clause (d) of section 12AA(1) applies only to regular bail (i.e., when the accused is in custody) and not to anticipatory bail, the court rejected that distinction: granting anticipatory bail results in the accused being released on bail immediately upon arrest or surrender; the act of granting bail and the concept of "release on bail" apply equally in both anticipatory and regular bail contexts.
- The court considered and contrasted differing single-judge decisions: it accepted the reasoning of authorities that equated special courts with sessions courts (e.g., Raj Kumar Gupta and S. Murugeshappa) and rejected the contrary single-judge view in Banshidhar Gupta. It also distinguished Balchand Jain on the basis that the Defence Rules in that case did not contain a provision comparable to clause (d) of section 12AA(1) that completely barred other courts from granting bail.
- Having resolved the jurisdictional question in favour of exclusive jurisdiction vested in special courts (and the High Court) for offences under section 7 of the E.C. Act, the court nonetheless examined the individual petitions on their merits and made orders accordingly.
Holding and Implications
Holding: The court held that an application for anticipatory bail or for regular bail by an accused of an offence under section 7 of the Essential Commodities Act can be entertained only by the special court constituted under the E.C. Act or by the High Court, and not by the regular court of session constituted under the Code.
Implications and direct effects:
- The learned Sessions Judge of Gaya was correct in declining jurisdiction to entertain anticipatory bail applications in cases under section 7 of the E.C. Act; the contrary single-judge decision in Banshidhar Gupta was not accepted by this Division Bench.
- The decision resolves the conflict between earlier single-judge orders by construing sections 12A, 12AA(1)(d), 12AB and 12AC of the E.C. Act to place special courts on par with courts of session for purposes of bail, and to confine bail-granting power in E.C. Act cases to special courts or the High Court.
- Application to the two petitions: Criminal Miscellaneous No. 5623 of 1985 was allowed — the petitioner Baldeo Prasad alias Baldeo Pd. Keshri was directed that, if he surrenders within two weeks, he shall be released on furnishing a bail bond of Rs. 4,000 with two sureties of like amount each, subject to conditions in section 438(2) of the Code. Criminal Miscellaneous No. 5696 of 1985 was dismissed (the petitioner may apply for regular bail in the trial court).
- No broader change in legislative text was made by the court; the decision is an interpretation of the E.C. Act and its interplay with the Code as applied to these facts and disputes.
Hari Lal Agrawal, J.:— Both the cases having been referred to a Division Bench by Brother N.P Singh, have been listed before us and have been heard together as the question of law in them is common, namely, as to whether an application for anticipatory bail under section 438 of the Code of Criminal Procedure (for short ‘the Code’) by an accused of the offence under section 7 of the Essential Commodities Act, should be filed before the ‘special courts' constituted under section 12A of the Essential Commodities Act, 1955 (for brevity ‘the E.C Act) or before the regular court of session as provided under section 438 of the Code.
2. The petitioners of both the cases had applied for grant of anticipatory bail before the learned Sessions Judge of Gaya, who took the view that he had no jurisdiction to hear the applications when special court had been established for this purpose. When the cases were listed before Brother Singh, he referred them to a Division Bench and accordingly the same have been heard by us.
3. Before I proceed to discuss the question, I may point out that this question has been answered differently by two learned Judges of this Court. Whereas Uday Sinha, J. in the case of Raj Kumar Gupta v. The State of Bihar (Criminal Miscellaneous No. 2797 of 1985) by his order dated 11.4.1985 on reference to various provisions of the E.C Act, has held that a Special Court shall be deemed to be a ‘Court of session’ and, therefore, be a sessions Court, within the meaning of section 438 of the Code, and the special Judge “will have the same power of entertaining an application for grant of anticipatory bail as this Court”, P.S Mishra, J. in the case of Banshidhar Gupta v. The State of Bihar (Criminal Miscellaneous No. 4712 of 1985) by his order dated 1.7.85 took the view that “the court designated as special judge is always subordinate to the provision under section 438 of the Code of Criminal Procedure. For the purpose of exercise of power under section 438 the judge exercising power under the Essential Commodities Act is not a sessions court”.
4. To resolve the conflict between the two decisions referred to above and to answer the question falling for our consideration, some of the provisions of the E.C Act have got to be referred to.
5. By Act No. 18 of 1981 certain special provisions by way of amendments to the main Act for dealing more effectively with persons indulging in hoarding and blackmarketing etc., in essential commodities, were provided and various new sections for section 12A of the principal Act were substituted. Under the new section 12A the State Government were empowered to constitute as many special courts as may be necessary for such area or areas by a Gazette Notification. The special court is to consist of a single judge to be appointed by the High Court upon the request of the State Government and only such person who is,
(a) qualified for appointment as a Judge of a High Court or,
(b) has for a period of not less than one year been a Sessions Judge or an Additional Sessions Judge, can be appointed as a Judge of a ‘special court’.
6. From this provision ??? clear that the qualification of the person who can perside over a special court is not in any way inferior to that of a person who is appointed as a sessions Judge, nay it may be said to be even higher if a person of the first category qualified for appointment as a Judge of a High Court is to be chosen:
The other relevant provision in this regard is clause (d) of section 12AA(1) of the E.C Act which reads as follows:
“(d) Save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a special court or the High Court:
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7. Section 12AB may also be usefully quoted:
“12AB. Appeal and Revision.— The High Court may exercise, so far as may be applicable, all the powers conferred by chapters XXIX and XXX of the Code on a High Court, as if a special Court within the local limits of the jurisdiction of the High Court were a court of sessions trying cases within the local limits of the jurisdiction of the High Court.”
8. This provision also makes it clear that the legislation has not made any distinction in the status of the special courts and the courts of session under the Code; rather section 12AC, in my opinion, takes the matter beyond all doubts and the same reads as follows:
“12 AC. Application of Code to proceedings before a special court.— Save as otherwise provided in this Act, the provisions of the Code (including the provisions as to bail and bonds) shall apply to the proceedings before a special court and for the purpose of the said provisions, the special court shall be deemed to be a court of sessions and the person conducting a prosecution before a special court, shall be deemed to be a public prosecutor.”
9. This provision in very clear terms declares that the special court shall be deemed to be a court of session and, in my view, it leaves no manner of doubt that the special court constituted under the E.C Act and the ‘court of session’ constituted under the Code have been put on equal footing and status.
10. According to the scheme of section 9 of the Code, the State Government has to establish a court of session for every sessions Division which is to be presided over by a Judge to be appointed by the High Court.
11. Having thus come to the conclusion that the status of the special court and the court of sessions has been made equal, there can be no doubt that the special court can also exercise the same power as the court of session in the matter of entertaining applications for anticipatory bail under section 438 of the Code as this section entitles a person having the reason to apprehend his arrest for a non-bailable offence to ‘apply to the High Court or the Court of session for a direction………in the event of such arrest……” to be released on bail.
12. The above conclusion now poses another question in view of the provisions contained in clause (d) of section 12AA(1) already extracted earlier. This provision confines the power only upon a special court or the High Court to release on bail an accused of an offence under the E.C Act.
13. The preamble of the Amending Act No. 18 of 1981 itself says that certain special provisions were made in the Act and one of those special provisions, in my view takes away the jurisdiction of the court of session under the Code to entertain any application either for anticipatory bail under section 438 or for regular bail under section 439 of the Code.
14. The stand of Mr. Shakeel Ahmad Khan, appearing in the second case, was the same as I have indicated above and he also cited a decision of a learned single Judge of the Karnataka High Court in S. Murugeshappa v. State of Karnataka (1984 Criminal Law Journal 1819) where it is held that in the matter of grant of anticipatory bail the special courts constituted under the E.C Act have power similar to that of the court of session under section 438 of the Code.
15. But Mr. Ashok Kumar Keshri, appearing in the first case, took a stand that the power to grant anticipatory bail could be exercised only by the court of session constituted under the Code. Mr. Keshri submitted that there was a fundamental distinction between an accused merely apprehending his arrest and applying for his release on anticipatory bail, and the release of an accused who was already in custody. He tried to seek support for his submission from the case of Balchand Jain v. State of Madhya Pradesh ((1976) 4 SCC 572 : A.I.R 1977 S.C 366). That was a case under the Defence & Internal Security of India Rules, 1971. Rule 184 of the said Rules also contained a non-obstante clause and provision that no person accused or convicted of a contravention of these Rules or Orders made thereunder shall, if in custody, be released on bail or his own bond unless.
(a) xxxxxx
(b) xxxxxx
16. The non-obstante clause and its operative part imposed a ban on release or bail of a person accused or convicted of a contravention of the Rules etc., if in custody, unless two conditions were satisfied, namely (1) the prosecution must be given an opportunity to oppose the application and (2) the court must be satisfied that there are reasonable grounds that he was not guilty for such contravention. When both the conditions were satisfied the fetters were removed and the power of granting bail possessed by the Court under the Code revived and became exersicable. The provisions, therefore, was intended to restrict the power of granting bail and not to confer a new power. It was accordingly submitted that the special provisions of the E.C Act should not be construed as displacing the provisions of the Code in regard to the grant of bail to the accused persons under sections 7 of the E.C Act, and not to read the special provisions as a self contained Code for grant of bail in cases of person accused or convicted of contravention of any provision made under section 7 of the E.C Act.
17. The contention of Mr. Keshri perhaps might have been acceptable had there been no clause (d) in section 12AA(1) of the E.C Act as that provision completely debars any other court to pass an order for release of an accused of an offence under that Act, on bail and, therefore, this provision must be construed “as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any order made” under section 7 of the E.C Act. No provision of this nature was brought to our notice in the Defence and Internal Security of India Rules. I would accordingly hold that the application for anticipatory bail or for regular bail by an accused of an offence under section 7 of the E.C Act, can be entertained only by the special court and not by the regular court of Session constituted under the Code. The learned Sessions Judge of Gaya has, therefore, taken a correct view of law and decision of the learned Judge in the case of Banshidhar Gupta (supra), therefore, cannot be acceptable.
18. Before proceeding further I may also notice yet another argument that was advanced by Mr. Keshri at some length, when he had attempted to make a distinction between an accused applying for anticipatory bail (on the ground that he was not in custody) and that for regular bail, and submitted that clause (d) of section 12AA(1) of the E.C Act would apply only to a case of regular bail as, according to him, the expression “bail” would apply where the accused was in custody.
19. This argument, in my view, is entirely misconceived as while allowing the prayer for anticipatory bail as well the accused has to “be released on bail”. The act of granting bail, therefore, applies without distinction in either situation. In a case where an accused apprehends his arrest and applies for anticipatory bail, he has to be released on bail immediately on his arrest by the police, or his surrender in court even before his arrest like an accused who surrenders before a warrant of arrest is executed against him and applies for regular bail.
20. It was then submitted that the cases of both the petitioners should be examined on their merit by this court and they should not be sent back to the special court for making fresh applications for grant of anticipatory bail for the time as that would amount to uncalled for harassment to them.
21. Having examined the facts and circumstances of the case we had agreed to this part of the submission of learned counsel for the petitioners and now I shall deal with their respective cases for bail.
22. The petitioner in the first case has been alleged to have been found in possession of six tins of kerosene oil which were found situated outside the shop premises in the town of Gaya. It was contended on his behalf that the petitioner is aged about 65 years and the business is carried on by his son. Further, the tins were not found in the business premises and were on the road which is a busy market area and it could not be definitely said that they necessarily belonged even to the petitioner's son. In any case, on these facts I feel that the petitioner deserves the privilege of grant of anticipatory bail. I would accordingly direct that if Baldeo Prasad alies Baldeo Pd. Keshri, petitioner in Cr. Misc. No. 5623 of 1985, surrenders in the trial court within two weeks from today he shall be released on furnishing a bail bond of Rs. 4,000/- (Rupees four thousand) with two sureties of the like amount each to the satisfaction of the said court in Gaya Kotwali P.S case No. 229/85, dated 13.7.85, subject to the conditions laid down in section 438(2) of the Code.
23. The petitioner in the second case is a fair price shop dealer, whose shop was inspected by a Supply Inspector on 27.5.85 when several irregularities were detected in relation to his stock. The defence of the petitioner, however, is that the Supply Inspector in fact had not inspected the business premises but had gone to his residence and, therefore, in the absence of any inspection of the business premises, the basis of the alleged irregularities cannot be pressed into service. I, however, do not feel impressed by this submission made on behalf of this petitioner and, therefore, I do not feel persuaded to allow his application. The petitioner, however, may pray for regular bail in the court below for its consideration on merits. In the result, Criminal Miscellaneous No. 5623 of 1985 is allowed and Criminal Miscellaneous No. 5696 of 1985 is dismissed.
Nagendra Prasad Singh, J.:— I agree.
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