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Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 198

1[42. Power of entry, search, seizure and arrest without warrant or authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]


 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 459 OF 2017

SK RAJU @ ABDUL HAQUE @ JAGGA                                    …..APPELLANT

Versus

STATE OF WEST BENGAL                                            …..RESPONDENT

JUDGMENT

Dr Dhananjaya Y Chandrachud 1 The present appeal, by special leave, is directed against a judgment dated 19 February 2016 of a Division Bench of the Calcutta High Court. The High Court upheld the conviction of the appellant by the Additional Sessions Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic Signature Not Verified Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted Digitally signed by CHETAN KUMAR Date: 2018.09.05 14:51:16 IST Reason:

the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The
appellant was sentenced to 14 years of rigorous imprisonment and directed to pay a fine of Rs 1,40,000.

2 The facts of the case are as follows. On 15 November 2011, Sub- Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon. PW-2 sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was granted by the superior officer on the same day and a raiding team consisting of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party. PW-5 was one of the two independent witnesses who agreed to be a witness to this search. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-

3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about 3.20 pm. He provided the appellant with a “second option”. The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted
officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen “deep brown / blackish broken rectangular sheets” from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas. Cash amounting to Rs. 2,400/- was recovered from the trouser of the appellant. 3 Learned counsel for the appellant has argued that there was non- compliance with Section 42 of the Act. After PW-2 was intimated about the appellant’s arrival, he sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department. Upon receipt of the letter of permission from the Assistant Commissioner, PW-2 proceeded to the place of the occurrence. PW-2 admitted in his cross-examination that he was aware of the gravity of the need for compliance with Section 42. However, apart from a letter seeking permission to act on the information which was addressed to a superior officer, he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW- 2 had not complied with the mandatory requirements of Section 42, as a result
of which the trial stood vitiated. He has relied on the following decisions of this Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of Gujarat (“Mansuri”),1 Directorate of Revenue v Mohammed Nisar Holia (“Holia”)2 and State of Rajasthan v Jagraj Singh (“Jagraj”).3 4 Learned counsel for the appellant also submitted that Section 50 has also not been complied with. According to him, not only was the bag of the appellant searched, but a search of the person of the appellant also resulted in the recovery of cash in the amount of Rs. 2,400/- from the left pocket of his trouser. Hence, it was urged by the learned counsel that though Section 50 was mandatorily required to be complied with, there was a breach of observance. Since the appellant was merely given an ‘option’ by PW-2 and PW-4 to be searched before a gazetted officer and was not informed that it was his legal right to be searched before a gazetted officer or a magistrate, the search was, it was urged, vitiated. On this aspect, learned counsel for the appellant has relied on the following judgments of this Court: Myla Venkateswarlu v State of Andhra Pradesh (“Venkateswarlu”),4 State of Rajasthan v Parmanand (“Parmanand”)5 and Namdi Francis Nwazor v Union of India (“Namdi”).6 On the other hand, the learned counsel appearing on behalf of the respondent- State has supported the judgment of the High Court and the legality of the 1 (2000) 2 SCC 513.

 

2 (2008) 2 SCC 370.

(2016) 11 SCC 687.

4 (2012) 5 SCC 226.

5 (2014) 5 SCC 345.

6 (1998) 8 SCC 534.

conviction. He argued that since the search was carried out in a public place, this case falls solely within the ambit of Section 43 and compliance with Section 42 was not necessary. Learned counsel for the respondent-State also urged that Section 50 is not attracted when the search involves the search of a bag or an article belonging to a person.

5 Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorization. It reads thus:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.— (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” Section 43 of the Act confers powers on the empowered officer to seize a substance and arrest a suspect in a public place. It provides thus:

“43. Power of seizure and arrest in public place.— Any officer of any of the departments mentioned in section 42 may—

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this
Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.— For the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” [Emphasis supplied] 6 We are unable to accept the submission made by the learned counsel for the appellant that Section 42 is attracted to the facts of the present case. In State of Punjab v Baldev Singh (“Baldev Singh”),7 Chief Justice Dr A S Anand speaking for a Constitution Bench of this Court, held:

“The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful.” [Emphasis supplied] In Narayanaswamy Ravishankar v Assistant Director, Directorate of Revenue Intelligence,8 a three judge Bench of this Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:

7 (1999) 6 SCC 172.

8 (2002) 8 SCC 7.

“In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant.” In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan,9 a two judge Bench of this Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:

“Section 42 comprises of two components. One relates to the basis of information i.e.: (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-

section (2) mandates, as was noted in Baldev Singh case that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place.” [Emphasis supplied] 9 (2004) 2 SCC 608; Rajendra v State of M.P ., (2004) 1 SCC 432.
7 An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 8 The appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation to Section 43. Section 42 had no application. 9 The cases relied on by the learned counsel for the appellant will also not apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver was intercepted by police personnel. Four gunny bags of charas were recovered from the auto-rickshaw. The police officer who had prior information about transportation of some narcotic substance, had neither taken down the information before carrying out the seizure and arrest, nor apprised his superior
officer. He contended that the action taken by him was under Section 43 and not Section 42. Rejecting the argument of the State, this Court held that compliance with Section 42 was required as the auto-rickshaw was a private vehicle and not a public conveyance as contemplated under Section 43. Similarly, in Jagraj, contraband was recovered from a jeep which was intercepted by police personnel on a public road after receiving prior information. The police officer who had received the information, admitted to not taking it down in writing, contending that Section 43 would be applicable. Rejecting the argument of the State, this Court held that the jeep which was intercepted, was not a public conveyance within the meaning of Section 43 and compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax tablets were recovered from the hotel room of the respondent. The information was not reduced to writing by the officer who had first received the information. The State claimed that compliance with Section 42 was not required as the hotel was a public place. Rejecting the submission of the State, this Court held that while a hotel is a public place, a hotel room inside it is not a public place. This Court held thus:

“Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with … It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing,
informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitled to maintain his privacy.” [Emphasis supplied] There is hence no substance in the first submission.

10 Section 50 of the Act deals with conditions under which search of persons shall be conducted. It states:

“50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under
section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” According to Section 50(1), an empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in the presence of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State of Gujarat (“Vijaysinh”),10 a Constitution Bench of this Court interpreted Section 50 thus:

“The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so … In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision … We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of Sub-

10 (2011) 1 SCC 609.

section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s case (supra).” The principle which emerges from Vijaysinh is that the concept of “substantial compliance” with the requirement of Section 50 is neither in accordance with the law laid down in Baldev Singh, nor can it be construed from its language. [Reference may also be made to the decision of a two judge Bench of this Court in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. In Baldev Singh, the Court held “on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises, etc.” In State of Himachal Pradesh v Pawan Kumar (“Pawan Kumar”),11 a three judge Bench of this Court held that the search of an article which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50. It was held thus:

“In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act …After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him.” In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered whether compliance 11 (2005) 4 SCC 350.

with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh]12. It was held thus:

“Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application.” Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate or before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being search before the Superintendent, who was not an independent officer.

It was held thus:

“We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer.

Therefore, it was improper for PW 10 SI Qureshi to tell the 12 (2007) 1 SCC 450.

respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.” The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4.

11 As evidenced by Exhibit-3, a first option was given to the appellant. PW- 2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be
searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant’s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.

PW-2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate.
From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant’s search was conducted, both PW- 2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third’ alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of
the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with. Having regard to the above position, we do not find any merit in the appeal. 13 The Criminal Appeal shall accordingly stand dismissed.

..CJI [DIPAK MISRA]

.J [Dr Dhananjaya Y Chandrachud] .

.J [INDIRA BANERJEE] New Delhi;

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In a judgment rendered by the Hon’ble Supreme Court in Narinder Singh and others vs. State of Punjab and another, 2014(6) SCC 466, the Hon’ble Apex Court has laid down certain principles and guidelines which should be kept in mind while quashing of FIRs pertaining to noncompoundable offence. For ready reference paragraphs No. 29.2 and 29.5 are reproduced as under :-

“29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure :

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.”

 Even in a judgment rendered by the Hon’ble Supreme Court in Madan Mohan Abbot vs State Of Punjab, 2008 (4) SCC 582, it has been held that it is advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings. Relevant paragraph of the said judgment is reproduced herein below :-

“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other 3 of 5 documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out.

Therefore, while relying upon the ratios of the aforesaid judgments, this Court is of the view that the compromise which has been entered into for quashing of an offence under Section 376 IPC and Section 6 of the POCSO Act on the basis of the compromise should be accepted. As 4 of 5 has been held in Narinder Singh & Ors. case (supra) those cases where a settlement is arrived at immediately after the alleged commission of the offence, the High Court may be liberal in accepting the settlement to quash the criminal proceedings. Moreover, there is a specific plea in the petition that continuation of the proceedings under the FIR in question would hamper the settlement of the prosecutrix in future.

 Consequently, keeping in view the peculiar facts and circumstances of the present case and in view of the above ratios of law, this petition is allowed.


 

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

CRM-M-31825-2017

Date of decision: 19.01.2018

Deepak                                                           …Petitioner

Versus

 

State of Haryana and another                                  …Respondents

CORAM: HON’BLE MS. JUSTICE JAISHREE THAKUR

JAISHREE THAKUR, J. (Oral)

  1. This petition has been filed under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 461 dated 11.12.2015, registered under Sections 376(1)A, 452 and 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act at Police Station Hansi Sadar, District Hisar and all subsequent proceedings arising therefrom in view of the compromise entered into between the parties.
  2. The aforesaid FIR has been registered on the complaint of respondent No. 2/prosecutrix herein. In brief, the facts of the case are that respondent No. 2 is a student of class 10. On 07.12.2015, she was sleeping in her room and her mother was sleeping outside. Suddenly, Vicky son of Kashmira entered into the house and after gagging the mouth of respondent No. 2 took her in a vacant plot, where he removed the salwar of respondent 1 of 5 No. 2 by showing her knife and committed rape upon her and threatened her that she would be killed if she discloses the incident to anyone. However, now with the intervention of respectable persons, the dispute has been amicably settled between the parties and they have entered into a compromise. In the petition, it has specifically been pleaded that pendency of these proceedings would hamper the settlement of the prosecutrix in future and it would be in the welfare of the prosecutrix if the FIR in question is quashed.
  3. By an order dated 10.11.2017, the parties were directed to appear before the trial Court so that their statement could be recorded regarding the genuineness of the compromise. The parties appeared before the Additional Sessions Judge at Hisar. In pursuance of the direction, a report has been received from the Additional Sessions Judge at Hisar, stating that the compromise arrived at between the parties is without any pressure or coercion from any one and the same appears to be genuine one.
  4. In normal circumstances, this Court would not entertain a matter when the non compoundable offences are heinous and serious in nature. In the instant case, the offence complained of includes offence punishable under Section 376 IPC and Section 6 of the POCSO Act which is an offence of grave nature. This Court is aware of the fact that time and again it has been held that an offence under Section 376 IPC is a grievous offence and considered as an offence against the society at large and thus, such matters should not be compromised. In the eyes of law, the offence of rape is serious and non-compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered.
  5. In a judgment rendered by the Hon’ble Supreme Court in Narinder Singh and others vs. State of Punjab and another, 2014(6) SCC 466, the Hon’ble Apex Court has laid down certain principles and guidelines which should be kept in mind while quashing of FIRs pertaining to noncompoundable offence. For ready reference paragraphs No. 29.2 and 29.5 are reproduced as under :-

“29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure :

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.”

  1. Even in a judgment rendered by the Hon’ble Supreme Court in Madan Mohan Abbot vs State Of Punjab, 2008 (4) SCC 582, it has been held that it is advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings. Relevant paragraph of the said judgment is reproduced herein below :-

“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other 3 of 5 documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11th January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out.

  1. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.”
  2. In the judgment rendered in Gian Singh vs State of Punjab & Anr, reported as 2012(10) SCC 303 the basic principle of law as laid down is that where offences are purely private in nature and do not concern public policy, the power to quash proceedings involving non-compoundable offences on the basis of compromise can be exercised.
  3. Therefore, while relying upon the ratios of the aforesaid judgments, this Court is of the view that the compromise which has been entered into for quashing of an offence under Section 376 IPC and Section 6 of the POCSO Act on the basis of the compromise should be accepted. As 4 of 5 has been held in Narinder Singh & Ors. case (supra) those cases where a settlement is arrived at immediately after the alleged commission of the offence, the High Court may be liberal in accepting the settlement to quash the criminal proceedings. Moreover, there is a specific plea in the petition that continuation of the proceedings under the FIR in question would hamper the settlement of the prosecutrix in future.

 

  1. Consequently, keeping in view the peculiar facts and circumstances of the present case and in view of the above ratios of law, this petition is allowed and the FIR No. 461 dated 11.12.2015, registered under Sections 376(1)A, 452 and 506 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act at Police Station Hansi Sadar, District Hisar and all subsequent proceedings arising out of the same are quashed qua the petitioner herein.

 

19.01.2018                                        (JAISHREE THAKUR)

Waseem Ansari                                           JUDGE

IN THE HIGH COURT AT CALCUTTA

Criminal Jurisdiction

Appellate Side

Before :

The Hon’ble Justice Ashim Kumar Banerjee

The Hon’ble Justice Ashim Kumar Roy

The Hon’ble Justice Debangsu Basak

S R C R No. 1 of 2013

Teru Majhi & Anr.

Vs

State of West Bengal & Ors.

Heard on               : November 25, 2013, January 7 & 20, 2014

Judgment on            : April 3, 2014

ASHIM KUMAR BANERJEE, J:

I have read the well-versed lucid judgment of My Lord the Hon’ble

Mr. Justice Debangsu Basak. His Lordship not only dealt with each

and every aspect that the learned Counsel appearing for the parties

as well as the Amicus Curiae highlighted but also dealt with all the

precedents relevant on the subject and ultimately answered the

query that in my view, is accurate and would deserve no

disagreement on any score. At the risk of repetition, may I add a few

lines.

The precedents cited at the bar already dealt with an identical issue

while considering the provisions of Section 12AC of the Essential

Communities Act 1955 as amended by the Essential Commodities

(Special Provisions) Act 1981. The said provision is Para- materia

with Section 36 of the NDPS Act. The precedent (Pijush Kanti Dey

(supra)) would answer the identical query and hold, power under

Section 438 could be exercised by the Special Court constituted

under the said Act of 1955.Section 37(1) of NDPS Act 1985 was

Para material, however, distinction is sought to be raised as Section

 37(1) although made a restriction on certain offences under said Act

of 1985 outside the scope of release of the accused on bail unless

the requirement under sub-section b (i) and b (ii) are complied with.

Sub-Section 2 of 37 would make it clear, the limitation on granting

bail under sub-section 1 are in addition to the limitations already

provided under the Code of Criminal Procedure. Section 36(c) of the

said Act of 1985 would provide, “save as otherwise provided in this

Act” in Criminal Procedure Code including provisions as to bail and

bonds would apply. On a combined reading of Sections 36 (c) and

37 it is sought to be suggested, since anticipatory bail was not

included the Section 438 would have no application. We fail to

reason. If we closely read Section 37 that would provide limitation

on grant of bail it did not speak of the power of the Court to grant

anticipatory bail.36 (c) would make the Code of Criminal Procedure

applicable except the area that would be in conflict with the

provisions of the said Act of 1985.

My Lord has elaborately dealt with personal liberty guaranteed to

the citizens of the country under Article 21 of the constitution.

Constitution is our basic structure of all laws, rules and

 regulations. The Act of 1985 or the Code of 1973 was no exception.

The legislature is permitted to enact laws that would put restriction

on some rights without disturbing the basic structure of the

Constitution. Such restriction in my considered view should be

explicit. It could not be applied particularly when it would come in

conflict of one’s personal liberty guaranteed by the Constitution.

Neither in the said Act of 1985 nor any other law for the timing in

force would put any explicit fetter on the Court to consider the

prayer for anticipatory bail under Section 438 that the Code of

Criminal Procedure empowered the Court of sessions. The Code of

Civil Procedure and Code of Criminal Procedure are two epics that

would govern the entire civil and criminal field respectively. Unless

it   is   explicitly   prohibited,   as   observed   above,   any   person

anticipating criminal proceeding as against him resulting an arrest,

is entitled to approach the High Court or the Court of session for an

order to the effect, in the event of his arrest he shall be released on

bail. However, exercise of such a power by the High Court or the

Court of Session is subject to the consideration of certain factors

prescribed under Section 438. The query made to us did not

suggest, a person anticipating an arrest for an offence under the

 said Act of 1985 would not be entitled to invoke Section 438 in view

of the restriction if any imposed in case of bail under Section 37 or

any other provision of the said Act of 1985. It would pre-suppose,

the querist would admit the power of the Court of law however, the

querist wants to know the fora particularly whether special Court

established under the said Act of 1985 would have the same power

or not.

Under the said Act of 1985 the subject Court to be manned by an

Additional District Judge is designated as a judge to try the offence

under the said Act of 1985. Hence, the said Court would be

considered as a Court of Session for the present purpose. Of course,

while excising such power he must have due regard to the

provisions of the said Act applicable therefor, including the

provision under Section 37. Section 37 could not be read to take

away the power of the special Court constituted under Section 36 to

decide a petition under Section 438. The Public Prosecutor

contended, the Court ought to answer the reference keeping in view

the provisions of Section 37(1)( b). I hope, such contention is

accordingly dealt with.

 I am thus in full agreement with His Lordship’s considered view on

the issue and the ultimate answer that His Lordship has given to

the question referred to us.

(Ashim Kumar Banerjee, J)

ASHIM KUMAR ROY, J.

In connection with a case of Anticipatory Bail, relating to an offence punishable under the NDPS Act, pending before the Learned Special Judge, NDPS Act, Bankura, a question arose as to whether the Special Court under the NDPS Act is empowered to entertain any application for Anticipatory Bail or not. Having regard to the same the Learned Judge referred the question to this court, for its decision invoking Section 395 of the Code of Criminal Procedure. The question of law set out in the reference, is, namely: Is a Special Court under Section 36 of the NDPS Act (deemed Sessions Court) competent to entertain the pre-arrest bail petition under Section 438 CRPC?

Brother Debangshu Basak, J in his judgment opined that a special Court constituted under Section 36 of the NDPS Act, 1985 is competent to entertain a pre-arrest bail petition under Section 438 CRPC. I fully subscribe to such view and concur with his conclusion. At the same time, in the light of our unanimous opinion, in our answer to the reference, it is also required to be clarified that such jurisdiction of the designated Judge to exercise power under Section 438 CRPC relating to offences punishable under the NDPS Act is exclusive and was never vested with the Sessions Judge.

(Ashim Kumar Roy, J) DEBANGSU BASAK, J.

 

PRELIMINARY Personal liberty was guaranteed under Article 21 of the constitution. Anticipatory bail was one of the tools secured on such personal liberty. The concept of anticipatory bail was that, a person who apprehended arrest in a non-bailable case, would apply for grant of bail. The right of an accused, to apply for anticipatory bail, in a proceeding under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) was accepted. The question arose, as per the forum, other than the High Court, competent to exercise such power.

A petition under Section 438 of the Code Criminal Procedure, 1973 praying for pre-arrest bail in connection with Patrasayer Police Station Case No. 09/13 dated February 11, 2013 under Section 18 of the NDPS Act, 1985 came up for consideration before the Special Court under the NDPS Act First Court, Bankura in-charge. A point of maintainability of such application was taken. While considering such point of maintainability the learned Judge framed a question of law for reference to this Hon’ble Court.

QUESTION IN THE REFERENCE The question of law framed by the learned Judge was as follows:- “Is Special Court constituted under Section 36 of the NDPS Act (deemed Sessions Court) competent to entertain the pre-arrest bail petition under Section 438 of Criminal Procedure Code?” The learned Judge, Special Court under the NDPS Act, 1985 framed the question of reference by his Order dated September 10, 2013. While discussing the necessity to refer the question to this Hon’ble Court the learned Judge considered 2013 Criminal Law Journal page 3503 (Rakesh Kumar alias Kukka v. State of Himachal Pradesh), 2001 Criminal Law Journal page 117 (Superintendent, Narcotic Central Bureau, Chennai v. R. Paulsamy), 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) and 2003 Volume 3 Gauhati Law Report page 130 (Balajit Singh v. State of Assam). He noted that Balajit (Supra) cited before him was unreported. He also considered 2003 volume 1 Gauhati Law Times page 107 (Suresh Dutta v. State of Tripura). The learned Judge explained his views requiring the reference to be made. In his view, Special Court constituted under the NDPS Act, 1985 was a Court of first production and was, therefore, not competent to entertain and hear an application under Section 438 of the Code of Criminal Procedure, 1973. According to him, provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1973 were absent in the NDPS Act, 1985 and, therefore, the ratio of Pijush Kanti Dey (Supra) was not applicable. He noted the divergent views of the Gauhati High Court in the cases of Balajit Singh (Supra) and Suresh Dutta (Supra). He found that, a reference was made to the Larger Bench of the Gauhati High Court for examining the matter. The decision of the Larger Bench of the Gauhati High Court on such reference was not placed before him. AMICUS CURIAE By an Order dated November 25, 2013 we requested Mr. L.K. Gupta, learned Senior Advocate and Mr. Sekhar Bose, learned Senior Counsel to assist us in the matter as Amicus Curiae. VIEW OF THE PETITIONER Mr. Milon Mukherjee learned Advocate for the petitioner before the Trial Court submitted that, a petition under Section 438 of the Code of Criminal Procedure, 1973 was maintainable before the Special Court trying offences under the NDPS Act, 1985. He referred to Section 5 of the Code of Criminal Procedure, 1973 which provided that, the provisions of any special Act would apply in addition to the provisions of the Code of Criminal Procedure, 1973 if such Special Act declared it to be so. He contended that, the Special Court under the NDPS Act, 1985 was constituted under the provisions of Section 36 of the NDPS Act, 1985. A Special Court constituted under Section 36 of the NDPS Act, 1985, according to him, was a Court of Session. According to him, Section 36C of the NDPS Act made the Code of Criminal Procedure, 1973 applicable to proceedings before it, save as otherwise provided in the NDPS Act, 1985. He submitted that, save as otherwise provided in the NDPS Act, 1985 all provisions of the Code of Criminal procedure, 1973 including the provisions as to bails and bonds would apply to the proceedings before a Special Court. The NDPS Act, 1985, according to him, did not take away the provisions as to bails apprehending arrest of the Code of Criminal Procedure, 1973 from the purview of the Special Court constituted under the NDPS Act, 1985. The Special Court had the jurisdiction to entertain and dispose of petition under Section 438 of the Code of Criminal Procedure, 1973. He submitted that Section 12AC of the Essential Commodities Act, 1955 as it stood with the coming into effect of the Essential Commodities (Special Provisions) Act, 1981 was pari materia with that of Section 36C of the NDPS Act, 1985. He submitted that, on a reference as to the question whether the Court of Sessions and the Special Court constituted under the Essential Commodities Act, 1955 as amended by the Essential Commodities (Special Provisions) Act, 1981 had concurrent jurisdiction to grant anticipatory bail under Section 438 of the Code of Criminal procedure, 1973 to a person apprehending arrest on an allegation of having committed an offence under the Essential Commodities Act, 1955 or not the Division Bench of this Hon’ble Court in 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State) held that, the power under Section 438 of the Code of Criminal Procedure, 1973 could be exercised by the Special Court constituted under the Essential Commodities Act, 1955 in respect of offences keeping in view of proviso to Clause 1(d) of Section 12AA of the Essential Commodities Act, 1955.

 

He submitted that, Section 12AA(1)(d) of the Essential Commodities Act, 1955 as amended by the Essential Commodities (Special Provisions) Act, 1981 was pari materia with sub-section(1) of Section 37 of the NDPS Act, 1985. He relied upon the reasoning of Pijush Kanti Dey (Supra) and submitted that, a Special Court under the NDPS Act, 1985 had the authority to consider a petition under Section 438 of the Code of Criminal Procedure, 1973. The parameters on which a petition under Section 438 of the Code of Criminal Procedure, 1973 would be considered by the Special Court under the NDPS Act, 1985 was circumscribed by Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 could not be read to take away the power of the Special Court constituted under Section 36 of the NDPS Act, 1985 to decide a petition under Section 438 of the Code of Criminal Procedure, 1973.

 

VIEW OF THE STATE Mr. Manjit Singh, Public Prosecutor, for the State was of the view that, a Special Court under the NDPS Act, 1985 was not authorized to consider a petition under Section 438 of the Code of Criminal Procedure, 1973. In course of his submissions, he traced the history of the NDPS Act, 1985 and various amendments introduced from time to time to the Act. He submitted that, under Section 36B of the NDPS Act, 1985 the power of the High Court conferred under Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 were preserved. According to him, Section 36C which stipulated that, the Special Court would be deemed to be a Court of Session demonstrated that, the Special Court was not a Court of Session for all purposes and that, such deeming provisions under Section 36C of the NDPS Act, 1985 merely established the non-existence of the fact deemed.

 

He next contended that, a Special Court under the NDPS Act, 1985 was established for the purpose of trial only. Therefore, in his submission, the provisions of the Code of Criminal Procedure, 1973 which were not directly related either to inquiry or trial could not be presumed to be conferred on the Special Court in absence of express mention. Provisions relating to bail and pre-arrest bail were two such instances which were not allied to the general provisions of inquiry or trial. Therefore, both such provisions were required to be incorporated expressly under the NDPS Act, 1985. According to him, Section 36C of the NDPS Act, 1985 incorporated the provisions of bail without mentioning pre-arrest bail. Therefore, in his submission, a Special Court constituted under the NDPS Act, 1985 did not have power under Section 438 of the Code of Criminal Procedure, 1973 to grant pre-arrest bail.

He then wanted to approach the issue from a different angle. He relied on Section 9 of the Code of Criminal Procedure, 1973 as amended and applicable to the State of West Bengal. The amended Section 9 of the Code of Criminal Procedure, 1973 as applicable to the State of West Bengal, provided for the establishing of a Court of Session for each Session division. It required every Court of Session to be presided by a Judge appointed by the High Court. It also provided that the High Court could appoint Additional Sessions Judge and Assistant Sessions Judge to exercise the jurisdiction of a Court of Session. Under Section 9(3) of the Code of Criminal Procedure, 1973 as applicable to the State of West Bengal, an Additional Sessions Judge exercising jurisdiction in a sub-division (other than the sub-division where the head quarter of the Sessions Judge was situated) would have powers of Sessions Judge in that sub-division, for the purpose of Sections 116(7), 193, 194, 209(a), 409, 439, 449 of the Code of Criminal Procedure, 1973. Therefore, in view of Section 9(3) and the proviso thereto, Section 438 of the Criminal Procedure Code, 1973 could not be read with the provisions of Section 36A and 36C of the NDPS Act, 1985. According to him, in terms of the State amendment to Section 9 of the Code of Criminal Procedure, 1973 under no circumstances, the Additional Sessions Judge could exercise powers of anticipatory bail.

He emphasized that, anticipatory bail was an extraordinary privilege which should be granted only in exceptional circumstances. In support of such contention he relied on 2012 Volume 4 Supreme Court Cases page 379 (Jai Prakash Singh v. State of Bihar). He went on to submit that, a Judge of the Special Court was required to be appointed by the Government with the concurrence of the Chief Justice of the High Court. An Additional Sessions Judge was eligible to be appointed as a Sessions Judge. Therefore, According to him, vesting the power of grant of pre-arrest bail with the Special Court constituted under the NDPS Act, 1985, would cause infraction of Section 9(3) proviso of the Code of Criminal Procedure, 1973 as applicable to the State of West Bengal. He read Section 36C of the NDPS Act, 1985 along with the proviso to Section 9(3) of the Code of Criminal Procedure, 1973 as applicable to the State of West Bengal and submitted that, the power of Section 438 of the Code of Criminal Procedure, 1973 was not conferred upon a Special Court.

 

According to the Public Prosecutor, the Special Court was a deemed Court of Sessions. This deeming provision was a legal fiction. While interpreting a legal fiction, according to him, the Court was required to ascertain the purpose of creating the same. According to him, under Sections 36, 36A, 36C of the NDPS Act, 1985 the Special Court was established for trial of offences punishable under such Act. Special Court constituted under the NDPS Act, 1985 derived its powers from the NDPS Act, 1985. It had exclusive jurisdiction to try offences under the NDPS Act, 1985. A judicial proceeding included an enquiry and trial and not an investigation. The provisions of Section 438 of the Code of Criminal Procedure, 1973 were not an integral part of inquiry and trial and, therefore, such power ought not to be deemed to be conferred upon a Special Court without express provision.

Special Court constituted under the NDPS Act, 1985 was not a Criminal Court within the meaning of Section 6 of the Code of Criminal Procedure, 1973. He relied on 1979 Volume 4 Supreme Court Cases page 5 (State of Tamil Nadu v. Krishnaswami Naidu) and submitted that the Special Court under the NDPS Act, 1985 was not a class of Court empowered to exercise 438 of the Code of Criminal Procedure, 1973. Deficiency of enactment, therefore, according to him, could not be supplanted by the Court. He relied on 1975 Volume 4 Supreme Court Cases page 22 (The Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur) in that regard.

On the application of Article 21 of the Constitution of India he relied on 1995 Volume 3 Supreme Court Cases page 221 (State of Madhya Pradesh v. Ram Kishan) to submit that, Section 438 of the Criminal Procedure Code, 1973 was incorporated for the first time much after the Constitution came into force. The power to grant anticipatory bail was conferred only on a Court of Session or the High Court. The Supreme Court in State of Madhya Pradesh (Supra) held that, grant of anticipatory bail could not be considered as an essential ingredient of Article 21 of the Constitution. So also its non-application to a certain special category of offences could not be considered as violative of Article 21.

 

He submitted that, the Courts ought not to proceed on the assumption that the legislators made a mistake in any provision of the NDPS Act, 1985. He relied on 2012 Volume 9 Supreme Court Cases page 552 (Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.), All India Reporter 2010 Supreme Court page 671 (Sri Jeyaram Educational Trust v. A G Syed Mohidden) in that regard.

 

The fact that Section 438 of the Code of Criminal Procedure, 1973 came under the Chapter XXXIII with the heading of such Chapter being provisions as to bails and bonds, according to him, could not override the provisions contained in the Chapter. He submitted that, heading of a chapter would not govern the plain meaning of the provisions contained therein. He relied on 1990 Volume 1 Supreme Court Cases page 400 (Frick India Ltd. v. Union of India) in that regard.

 

Next he submitted that, mere mentioning of the provision as to bails and bonds in Section 36C would not introduce all the provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 to the NDPS Act, 1985. He contrasted Section 36B with 36C of the NDPS Act, 1985 and submitted that, all powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 were preserved in respect of Section 36B. Section 36C of the NDPS Act, 1985 provided that, the provisions of bails and bonds would apply to the proceedings before a Special Court. According to him, had the legislature the intention to vest the power of anticipatory bail to a Special Court the same would be expressly mentioned in Section 36C. This was a contrast on which he laid stress upon. He submitted that, Sections 36A, 36B and 37(2) of the NDPS Act, 1985 were some provisions of legislation by incorporation. He sought to make a distinction between legislation by incorporation, and a mere reference to an earlier Act in the later Act. According to him, a mere reference of any provision of an earlier Act was not legislation by incorporation. In such context, he submitted that, so far as Section 36C related to the powers under Section 438 of the Code of Criminal Procedure, 1973 was concerned, the same was not incorporated by legislation. The provisions under Section 438 of the Criminal Procedure Code, 1973 were not bodily transposed into Section 36C. According to him, had the legislature any intention of vesting the power under Section 438 of the Code of Criminal Procedure, 1973, Chapter XXXIII of the Code of Criminal Procedure, 1973 would be mentioned in Section 36C of the NDPS Act, 1985. He relied on 2013 Volume 7 Supreme Court Cases page 754 (Bank of Maharashtra v. Pandurang Keshav Gorwardkar) in support of the contention that, the mention of a section was neither legislation by reference nor a legislation by incorporation. On Section 12AA(1)(d) of the Essential Commodities Act, 1955, (as was introduced by way of amendment), he submitted that, there was no relevant provision in the NDPS. Act, 1985 which was analogous to Section 12AA(1)(d). Therefore, Section 12AA of the Essential Commodities Act, 1955 as was existing and Sections 36A and 36C of the NDPS Act, 1985 could not be termed as pari materia.

 

He went on to submit that, the legislator was deemed to know the existing law on the subject while enacting a law. Therefore, while amending Section 36A of the NDPS Act, 1985 the provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1985 was deemed to be within the contemplation of the legislator. The legislator in its wisdom did not reproduce the same in the NDPS Act, 1985. This, according to him, made the crucial difference. The provisions of Section 36C of the NDPS Act, 1985 according to him, could not be read in a manner to make any portion of it dead letter or superfluous. He, thereafter, sought to distinguish Pijush Kanti Dey (Supra). He submitted that, the issue before the Division Bench in Pijush Kanti Dey (Supra) was not the same as the reference taken up for consideration here. According to him, as there was no provision analogous to the provisions of Section 12AA(1)(d) of the Essential Commodities Act, 1955 in the NDPS Act, 1985, Pijush Kanti Dey (Supra) would not be applicable to the present reference. Moreover, in Pijush Kanti Dey (Supra) the Division Bench observed that Essential Commodities Act, 1955 was a self-contained Code. However, NDPS Act, 1985 could not be termed to be a self- contained Code. He submitted that invocation of Section 5 of the Code of Criminal Procedure, 1973 by Pijush Kanti Dey (Supra) was misplaced. He relied on 2002 Volume 4 Supreme Court Cases page 713 (Moti Lal v. CBI & Anr.) in support of his contention that, when specific provisions of the statute were contrary to the provisions contained in the Code of Criminal Procedure, 1973, the statute would prevail during trial. However, it could not be said that, the operation of the rest of the provisions of the Code of Criminal Procedure, 1973 would not apply to a proceeding before a Special Court constituted under the NDPS Act, 1985. The Court ought to answer the reference keeping in view the in house limitations provided under Section 37(1)(b) of the NDPS Act, 1985. VIEWS OF THE AMICUS CURIAE Joint submission was made by the Amicus Curiae. They analyzed diverse provisions of the NDPS Act, 1985 to demonstrate the extent NDPS Act, 1985 dispensed with the applications of the provisions of the Code of Criminal Procedure, 1973. Such exercise according to them, were necessary to obtain a view on the opening words of Section 36C particularly “Save as otherwise provided in this Act…………….”. They identified Sections 32A, 33, 36A, 37, 51, 52A(4) of the NDPS Act, 1985 which gave overriding effect of the provisions of the NDPS Act, 1985 over the Code of Criminal Procedure, 1973. They submitted that, such provisions as enumerated in the preceding sentence made either the provisions of the Code of Criminal Procedure, 1973 in their application to be dispensed with or incorporated into the NDPS Act, 1985 with modifications, which were necessary for the purpose of giving effect to the provisions of the NDPS Act, 1985. They reasoned that, the provisions of the Code of Criminal Procedure, 1973 were not barred from their application in a proceeding under the NDPS Act, 1985.On the contrary they were very much applicable, save to the extent specifically ousted or modified by the provisions of the NDPS Act, 1985 itself.

 

They submitted that a Special Court under the NDPS Act, 1985 was recognized under Section 26(b) of the Code of Criminal Procedure, 1973. Its function, power and authority were recognized in Section 4(2) of the Code of Criminal Procedure, 1973. They relied on Section 5 of the Code of Criminal Procedure, 1973 which provided that nothing in the Code of Criminal Procedure, 1973 would affect such law.

 

They went on to discuss the meaning of “save as otherwise provided in this Act” used in Section 36C of the NDPS Act, 1985. According to them, the provisions of the Code of Criminal Procedure, 1973 including the provisions as to bails and bonds would apply proceedings under the NDPS Act, 1985. The words “otherwise provided” according to them, would not mean implied bar on the application of the Code of Criminal Procedure, 1973. The words “including provisions” were a legislative certification on the application of the provisions of Chapter XXXIII of the Code of Criminal Procedure,1973 to proceedings under the NDPS Act, 1985. They next referred to the transitional provisions enumerated in Section 36D of the NDPS Act, 1985. Referring to such transitional provisions they submitted that, a Sessions Court acted as the Court of trial during the transitional period and after the constitution of the Special Court it remained there as a Special Court designated under the NDPS Act, 1985. They sought to support this view of theirs by referring to Section 36B of the NDPS Act, 1985. Orders of the Special Court, they pointed out were appealable to or revisable by the High Court.

 

They wanted us to consider another aspect on this subject. Both the Code of Criminal Procedure, 1973 as well as NDPS Act, 1985 was parliamentary legislation. It was presumed that, while enacting both the legislation, the legislator was aware of the provisions in the general law. Any departure from the provisions of the general law was required to be reflected in the special law. A person choosing to avail Section 438 under the general law had two forai, namely, the Court of Session as well as the High Court. Such choice, according to them could not be taken away by giving a restrictive meaning to Section 36C of the NDPS Act, 1985. In fact, according to them, such choice was not taken away. They next referred to Section 36A(3) of the NDPS Act, 1985 and submitted that, it saved the special power of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973. They submitted that, on a combined and harmonious reading of Section 33A of the NDPS Act, 1985 with Section 36C thereof and Chapter XXXIII of the Code of Criminal Procedure, 1973 it would lead to a conclusion that the Special Court under the NDPS Act, 1985 was entitled to consider a petition under Section 438 of the Code of Criminal Procedure, 1973. The Amicus Curiae dwelt on the subject of legislation by incorporation. They found Section 36C and 51 of the NDPS Act, 1985 to incorporate various provisions of the Code of Criminal Procedure, 1973.

 

The Amicus Curiae found the description by the learned Judge making the reference as the Court of the first production to be not discernible. According to them, the Special Court was not the Court of first production. They referred to Section 36A(1)(b) of the NDPS Act, 1985 and submitted that a Judicial Magistrate was empowered to detain such person in custody for a period not exceeding 15 days in the whole and an Executive Magistrate for a period of 7 days. Therefore, the first production after arrest was not indispensably made before the Special Court constituted under the NDPS Act, 1973. After the expiry of the remand the arrestee was required to be forwarded the Special Court having jurisdiction in respect of the offence. In any event they submitted that, the first production theory could not have any consideration in the framework of the NDPS Act, 1985.

 

The Amicus Curiae submitted that, in given circumstances Courts may be required to find out the intention of the legislature and “iron out the creases” if required. In support of such contention they relied on All India Reporter 1986 Supreme Court page 1973 (State of Tamil Nadu v. Kodaikanal Motor Union Private Ltd.) which quoted a passage from 1949 Volume 2 All England Reports page 155 (Seaford Court Estates v. Asher).

 

They relied heavily on Pijush Kanti Dey (Supra). They submitted that, Section 12AC of the Essential Commodities Act, 1955 as it stood with the Essential Commodities (Special Provisions) Act, 1981 coming into effect and Section 36C of the NDPS Act, 1985 were pari materia. They felt that, the referring Court was not correct in appreciating Pijush Kanti Dey (Supra).

 

The Amicus Curiae wanted us to consider Article 21 of the Constitution of India. They wanted us to read the provisions of Section 438 of the Code of Criminal Procedure, 1973 and Section 36C of the NDPS Act, 1985 in light of the liberties guaranteed to a person under Article 21 of the Constitution of India. To emphasize the importance of Section 438 of the Code of Criminal Procedure, 1973, they relied on 1976 Volume 4 Supreme Court Cases page 572 (Balchand Jain v. State of Madhya Pradesh) and 2011 Volume 1 Supreme Court Cases (Criminal) page 514 (Siddharam Satlingappa Mhetre v. State of Maharashtra). On the importance of the personal liberty guaranteed under Article 21 of the Constitution of India they relied upon 1980 Supreme Court Cases (Criminal) page 465 (Gurubaksh Singh Sibbia v. State of Punjab).

 

To shed light on what “save as otherwise provided in the Act” would mean when used in a statute, they relied on 1972 Volume 2 Supreme Court Cases page 545 (State of Rajasthan v. Noor Mohammad). In similar vein, they submitted that, the Code of Criminal Procedure, 1973 would apply to proceedings under the NDPS Act, 1985 and in support of such proposition they relied upon 1979 Volume 4 Supreme Court Cases page 5 which was also reported at All India Reporter 1979 Supreme Court page 1255 (State of Tamil Nadu v. V. Krishnaswamy Naidu & Anr.). They referred to the powers of a Special Court established under the Special Courts (Trial of Offences relating to Transactions in Securities) Act, 1992 to submit that, a Special Court constituted under such Act was held to retain the power to grant pardon. In that regard they relied upon 2001 Volume 8 Supreme Court Cases page 257 (Harshad S Mehta & Ors. v. State of Maharashtra).

 

They relied upon All India Reporter 1959 Supreme Court page 960 (Bhinka & Ors. v. Charan Singh) to demonstrate how a heading prefixed to a section ought to be read.

 

On the interpretation of Section 12AA and Section 12AC of the Essential Commodities Act, 1981 as they stood with the coming into effect of the Essential Commodities (Special Provisions) Act, 1981 and Section 438 of the Criminal Procedure Code, 1973 the Amicus Curiae relied on decisions of various High Courts which were as follows:-

 

  1. 1984 Criminal Law Journal page 1889 (S. Murugeshappa & Ors. v. State of Karnataka)

 

  1. 1985 Criminal Law Journal page 1561 (Karamchand & Anr. v. The State of Madhya Pradesh)

 

  1. 1985 Criminal Law Journal page 1664 (Pijush Kanti Dey v. State)

 

  1. 1985 Criminal Law Journal page 1750 (Suresh Chand & Ors. v. State of Rajasthan)

 

  1. 1986 Criminal Law Journal page 561 (B. Kuppa Naidu v. The State of Andhra Pradesh) They also placed reliance on five other decisions of various High Courts where, according to them, similar provisions of different statute came up for consideration in the light of Section 438 of the Code of Criminal Procedure, 1973. Such decisions were –

 

  1. 1985 Criminal Law Journal page 146 (State of Punjab v. Piara Singh)

 

  1. 1993 Criminal Law Journal page 2436 (Sri Ravi Nandan Sahay, Sessions Judge Patna)

 

  1. 1998 Criminal Law Journal page 439 (Fakhruddin Sharafali Ampanwala v. State)

 

  1. 1999 Criminal Law Journal page 3654 (C. Abdul Hameed v. State of Karnataka)

 

  1. 2001 Criminal Law Journal page 3678 (State of Bihar v. Braj Nandan Raut).

 

Three authorities of three different High Courts on the interpretation of various Sections of the NDPS Act, 1985 by such High Courts were also relied upon by Amicus Curiae. Such authorities were 2001 Volume 3 All India Criminal Law Reporter page 166 (Ved Prakash Goel v. Commissioner, Central Bureau of Narcotics), 2003 Criminal Law Journal page 3503 (Rakesh Kukar alias Kukka v. State of Himachal Pradesh), 2004 Volume 3 Crimes page 433 (Baljit Singh v. State of Assam). In conclusion, the Amicus Curiae submitted that, on their reading of the law and the interpretation of the NDPS Act, 1985 as well as various provisions of the Code of Criminal Procedure, 1973 they were of the view that, be it a Court of Session or a Special Court or a Court of Original Jurisdiction, none of them were denuded of the jurisdiction and authority to receive and consider an application for anticipatory bail. They were of the firm view that, a right to move Court against an apprehended arrest was a right or a remedy emerging from Article 21 of the Constitution of India. Any interpretation to any section of a statute particularly the provisions of the NDPS Act, 1985 were required to be made in the context of personal liberty guaranteed under Article 21 of the Constitution of India. An interpretation of law, which took away a civil right or the right of a person ought not to be resorted to, unless specifically barred or restricted by a special law. There was no such restriction in the NDPS Act, 1985.

 

They were, therefore, of the view that, a Special Court constituted under the NDPS Act, 1985 was entitled to receive and consider an application under Section 438 of the Code of Criminal Procedure, 1973. The disposal of such petition was, according to them, governed by Section 37 of the NDPS Act, 1985. They wanted us to answer the reference by holding that a Special Court constituted under the NDPS Act, 1985 had the jurisdiction to entertain and dispose of a petition for pre-arrest bail under Section 438 of the Code of Criminal procedure, 1973.

 

OUR VIEW In the factual and legal matrix stated above the question under reference required an answer.

 

The statement of objects and reasons of the NDPS Act, 1985 stated that, with the passage of time and development in the field of illicit drug traffic and drug abuse at national and international level many deficiencies in the existing laws of the country came to the notice of the Government. It noted that, our country was also a party to the International convention on Narcotic Drugs and Psychotropic Substances. Government felt an urgent need to enact a comprehensive legislation on Narcotic Drugs and Psychotropic Substances. NDPS Act 1985 was brought about to address such urgent need. It consolidated and amended the existing laws relating to narcotic drugs, made stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.

 

The Act came into effect on November 14, 1985. The Act was amended from time to time. The Act was divided into seven chapters with their being a Chapter V and a Chapter VA. NDPS Act, 1985 identified the offences and the penalties under such Act. In order to provide speedy trial of the offences identified under the Act, Section 36 of the NDPS Act, 1985 provided for constitution of Special Court. A Special Court constituted under the NDPS Act, 1985 consisted of a Single Judge appointed by the Government with concurrence of the Chief Justice of the High Court. Sub-section (3) of Section 36 required a Judge of a Special Court to be qualified for appointment as a Sessions Judge or as an Additional Sessions Judge. Section 36A specified that the offences under the NDPS Act, 1985 which were punishable with imprisonment for a term of more than three years would be triable by a Special Court only. While considering Section 36A of the NDPS Act, 1985 the learned Judge making the reference to this Hon’ble Court considered a Special Court constituted under NDPS Act, 1985 to be a Court of first production. In arriving at such view, the learned Judge considered sub-section (3) of Section 36A as well as Section 36A(1)(a)(b) and (c) of the NDPS Act, 1985. The Amicus Curiae were of the view that, a Special Court under the NDPS Act, 1985 was not a Court of first production. They relied on Section 36A(1)(b) which provided that an accused, suspected of committing an offence under the NDPS Act, 1985 would be forwarded by a Magistrate to the Special Court. Section 36A of the NDPS Act, 1985 did not mean that the Special Court was the Court of the first production at all times. Section 36A(1) began with the non-obstante clause “Notwithstanding anything contained in the Code of Criminal Procedure, 1973………………..”. The non-obstante clause was clear. It required that, the provisions laid down in section 36A of the NDPS Act, 1985 after the non-obstante clause would prevail over the provisions of the Code of Criminal Procedure, 1973 should any provisions of the Code would be in conflict with the provisions of section 36A. The provisions of section 36A of the NDPS Act, 1985 would override the provisions of the Code of Criminal Procedure, 1973 in the event of conflict between the two.

 

Section 36A(1)(a) made the jurisdiction of the Special Court constituted under Section 36 to try offences under the NDPS Act, 1985, which were punishable with imprisonment for a term of more than 3 years, exclusive.

 

Section 36A(1)(b) allowed a Magistrate to forward an accused suspected of committing an offence under the NDPS Act, 1985 to a Special Court. Section 36A(1)(b) of the NDPS Act, 1985 stated that where a person accused of or suspected of a commission of an offence under the NDPS Act, 1985, was forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973 such Magistrate could authorize the detention of such person in such custody as he though fit for a period not exceeding 15 days in the whole where such Magistrate was a Judicial Magistrate and 7 days in the whole were the Magistrate was an Executive Magistrate. Section 36A(1)(b) in its proviso provided that, cases which were triable by the Special Court where such Magistrate considered that a person forwarded to him or at the time before the expiry of a period authorized by him that the detention of such person was unnecessary, he could forward such person to the Special Court having jurisdiction. Section 36A(1)(b), therefore, contemplated a situation where the Special Court was not a Court of first production.

 

Section 36A(1)(c) of the NDPS Act, 1985 stipulated that, the Special Court would exercise, in relation to the person forwarded to it under Section 36A(1)(b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 in relation to the accused person in such case forwarded to him under that section. Section 36A(1)(d) allowed the Special Court, upon perusal of police report of the facts constituting an offence under the NDPS Act, 1985 or upon complaint made by any officer of the Central Government or a State Government authorized in his behalf, take cognizance of offence without the accused being committed to it for a trial.

 

Sub-section (2) of Section 36A allowed the Special Court to try an offence other than an offence under the NDPS Act, 1985 with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. The special powers of the High Court regarding bail under Section 438 of the Code of Criminal Procedure was retained under Section 36A(3) of the NDPS Act, 1985. Section 36A(4) of the NDPS Act, 1985 increased the number of days occurring in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 from 90 days to 180 days. It also provided that, if was not possible to complete the investigation within the period of 180 days the Special Court was empowered to extend such period up to 1 year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reason for detention of the accused beyond the said period of 180 days. The Special Courts were empowered by Section 36A(5) to try offences punishable under the NDPS Act, 1985 with imprisonment of a term not more than three years summarily. The whole scheme appeared to be in tune with the declared objective of the Government of providing speedy trial of the offences under the NDPS Act, 1985. Such intention of the Government was declared both in the statement of objects and reasons of the NDPS Act, 1985 as well as Section 36 of the NDPS Act, 1985 itself. Our understanding of Section 36A of the NDPS Act, 1985 led us to conclude that, a Special Court constituted under the NDPS Act, 1985 was not always a Court of first production. That, however, would not answer the question referred. It would at the same time go to some length at addressing the question framed. Section 36B related to appeal and revision. It provided that a High Court may exercise, so far as may be applicable, all powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.

 

What was of utmost importance to the question under reference was Section 36C of the NDPS Act, 1985. It provided for the application of the Code of Criminal Procedure, 1973 to proceedings before a Special Court. It opened with the words “save as otherwise provided in this Act”. These opening words were commented upon by all the parties appearing before us.

 

DISCUSSION OF CITED AUTHORITIES We considered the various authorities cited before us by the respective parties. The authorities cited by the Public Prosecutor, were taken up first.

 

In 2012 Volume 4 Supreme Court Cases page 379 (Jai Prakash Singh v. State of Bihar), the Supreme Court was concerned with an appeal directed against grant of anticipatory bail. Their Lordships considered, the provisions of Section 438 of the Court of Criminal Procedure, 1973, and noted the previous decisions relating to anticipatory bail. Their Lordships were of the view that anticipatory bail would be granted only in exceptional circumstances, where the Court was prima facie of the view that the applicant was falsely implicated in the crime and that the accused would not misuse his liberty. It was not suggested by the Public Prosecutor that, an accused under the NDPS Act, 1985 did not have recourse to Section 438 of the Code of Criminal Procedure, 1973. What was suggested was that the Special Court did not have jurisdiction to exercise such power.

 

In 1979 Volume 4 Supreme Court Cases page 5 (State of Tamil Nadu v. V. Krishnaswamy Naidu & Anr.), the Supreme Court was concerned with the question whether the Special Judge under the Criminal Law (Amendment) Act, 1952 could exercise powers conferred upon a Magistrate under Section 167 of the Code of Criminal Procedure, 1973 to authorize detention of the accused in the custody of the police. Their Lordships were of the view that, the Special Judge in the Criminal Law (Amendment) Act, 1952, was for some purposes deemed to be a Sessions Judge and for some other purposes deemed to be a Magistrate with some powers exercised by the Magistrate conferred upon him. It was also held that the Criminal Law (Amendment) Act was an amending Act so far as Code of Criminal Procedure, 1973 and the Indian Penal Code were concerned. The provisions of the Code of Criminal Procedure, 1973 would be in force unless there were certain provisions in the Criminal Law (Amendment) Act, 1952 which were inconsistent with the provisions of the Code of Criminal Procedure, 1973. Their Lordships answered the question by holding that a Special Judge would be a Magistrate empowered to try a case under Section 167 of the Criminal Procedure Code, 1973. The Special Judge would proceed to exercise the power that was conferred upon a Magistrate having jurisdiction to try the cases. We are afraid that, this authority could not be read to mean that a Special Court constituted under the NDPS Act, 1985 was not empowered to exercise Section 438.

 

In 1975 Volume 4 Supreme Court Cases page 22 (The Commissioner of Sales Tax, U P., Lucknow v. Parson Tools and Plants, Kanpur) the Supreme Court was concerned with the question whether Section 14 (2) of the Limitation Act, 1963 in terms, or in principle, would be invoked for including the time spent in prosecuting an application under Rule (6) of the U.P. Sales Tax Rules for setting aside the order of dismissal of appeal in default, under the U.P. Sales Tax Act, 1948 from computation of the period of limitation for filing a revision under that Act. In such context, Their Lordships were of the view that where the legislature clearly declared its intent in the scheme and language of a statute, it was the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which was not congenial to or consistent with such expressed intent of the lawgiver; were so if the statute was a taxing statute. Their Lordships went on to hold, that the object, the scheme and language of the Sales Tax Act did not permit the invocation of Section 14 (2) of the Limitation Act, either in terms, or in principle, for excluding the time spent in prosecuting proceedings for setting aside the dismissal of appeals in default, from computation of the period of limitation prescribed for filing a revision under the Sales Tax Act. The question in the present reference, in our view, did not require us to engraft, add or imply anything which was not congenial to or consistent with the expressed intent of the law giver.

 

In 1995 Volume 3 Supreme Court Cases page 221 (State of Madhya Pradesh v. Ram Kishan) (Supra) the constitutional validity of certain provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 came up for consideration. Their Lordships were of the view that Section 438 of the Court of Criminal Procedure, 1973, did not apply to any case involving arrest of any person accused of having committed any of the offences specified under Section 3 of such Act. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 expressly provided for the exclusion of Section 438 of the Court of Criminal Procedure, 1973 in relation to any case involving the arrest of any person on an accusation of having committed an offence under the said Act of 1989. In the reference under consideration, the NDPS Act, 1985 did not contain a similar section as that of Section 18 of the Act of 1989.

 

The Constitution Bench in 2012 Volume 9 Supreme Court Cases page 552 (Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.) was concerned with the interpretation of Clause (2) of Section 2 of the Arbitration and Conciliation Act, 1996. Diverse authorities were noted in such judgment. One of the issue which came up for consideration before the Constitution Bench was the doctrine of ironing out the creases when it came to interpreting a section of a statute. In the present reference the provisions of the NDPS Act, 1985 were amply clear. We were not required to apply any of such doctrine for the purpose of interpreting Section 36C of the NDPS Act, 1985.

 

In All India Reporter 2010 Supreme Court page 671 (Sri Jeyaram Educational Trust & Ors. v. A G Syed Mohidden & Ors.), their Lordships were of the view that, when the language of the statute was clear and unambiguous, and when there was no need to apply the tools of interpretation, there was no need to interpret the words in any other manner. Interpretation of Section 92 of the Code of Criminal Procedure, 1973 came up for consideration before their Lordships. We proposed to follow this rule of interpretation. We were, therefore, required to find out whether the words used in section 36C clear and unambiguous. Once such finding was established, we were not required to apply any other tool of interpretation.

 

In 1990 Volume 1 Supreme Court Cases page 400 (Frick India Ltd. v. Union of India) their Lordships were of the view that the headings prefixed to sections or entries could not control the plain words of the provision; they could not also be referred to for the purpose of construing the provision when the words used in the provision were clear and unambiguous; nor could they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or subheading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.

 

In 2013 Volume 7 Supreme Court Cases page 754 (Bank of Maharashtra v. Pandurang Keshav Gorwardkar), the Supreme Court in the context of the provisions of the Recovery of Debts Due to Banks and Financial institutions Act, 1993 and the Companies Act, 1956 found that, the Debts Recovery Tribunal was only required to follow the provisions of the Companies Act, 1956 so far as it related to the distribution of sale proceeds and not embark upon an adjudication as to the quantum. In the reference in question, Section 36C of the NDPS Act, 1985 made all the provisions of the Code of Criminal Procedure, 1973 applicable, save those as was provided by the Act of 1973. Moreover, the Companies Act, 1956 provided the modality of adjudicating the workers claim in a Company (in liquidation). Another forum, namely, the Debts Recovery Tribunal was, therefore, not required to visit such question when Section 529A of the Companies Act, 1956 was mentioned in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

 

In 2002 Volume 4 Supreme Court Cases page 713 (Moti Lal v. CBI & Anr.) the question was whether Central Bureau of Investigation was authorized to investigate an offence which was punishable under the Wild Life (Protection) Act, 1972 as it was contended that the said Act of 1972 was a self-contained Code. Their Lordships found the Wild Life (Protection) Act, 1972 not to be a self-contained Code. It was held that a police officer was empowered to investigate offences under the Wild Life (Protection) Act, 1972. For trial of offences under the Wild Life (Protection) Act, 1972, the Code of Criminal Procedure, 1973 was required to be followed and that there was no other specific provisions on the contrary. The said procedure prescribed under Section 50 of the said Act was limited to take cognizance of the offences as well as powers given to other officers for inspection, arrest such and seizure as well as of regarding statement. Their Lordships held that the specific provisions in the Wild Life (Protection) Act, 1972, which were contrary to the provisions contained in the Code of Criminal Procedure, 1973 would prevail during trial in view of the provisions of Section 4(2) of the Code of Criminal Procedure, 1973. In such context, their Lordships found that it could not be said that operation of rest of the provisions of the Code of Criminal Procedure, 1973 was excluded.

 

We, also, considered the authorities cited by the Amicus Curiae. In All India Reporter 1986 Supreme Court page 1973 (State of Tamil Nadu v. Kodaikanal Motor Union), their Lordships were laying down parameters with regard to interpretation of statute. Their Lordships of were of the view that, the Courts must always seek to find out the intention of the legislature. Though the Courts must find out the intention of the statute from the language used, but language more often than not was an imperfect instrument of expression of human thought, cautioned their Lordships. Their Lordships were of the view that a Court should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose was apparent to the judicial eye some violence to language was permissible. Their Lordships noted Lord Denning’s view expressed in 1949 Volume 2 All England Reports page 155 (Seaford Court Estates v. Asher). The intention of the legislator in the NDPS Act, 1985 was clear. Section 438 was available to an accused under the NDPS Act, 1985.

 

In 1976 Volume 4 Supreme Court Cases page 572 (Balchand Jain v. State of Madhya Pradesh), the Supreme Court considered the question whether an order of anticipatory bail could be competently made by a Court of sessions or a High Court under Section 438 of the Code of Criminal Procedure, 1973. Again the Supreme Court looked at anticipatory bail in the light of Articles 19, 21, 22 of the Constitution of India in Siddharam Satlingappa Mhetre (Supra). Few factors and parameters to be taken into consideration while dealing with anticipatory bail were laid down. Their Lordships reiterated the six principles regarding anticipatory bail laid down in Sibbia’s case (1980 Volume 2 Supreme Court Cases page 565). Gurubaksh Singh Sibbia (Supra) laid down few principles with regard to anticipatory bail. It provided that, Section 438 of the Code of Criminal Procedure, 1973 was to be interpreted in the light of Article 21 of the Constitution of India. It also laid down that conditions mentioned in Section 437 could not be read into Section 438 of the Code of Criminal Procedure, 1973. Their Lordships were of the view that, although the power to grant anticipatory bail could be described as of an “extraordinary” character, and that would not justify the conclusion that power must be exercised in exceptional cases only. Power under Section 438 was discretionary and was required to be exercised in the light of the circumstances of each case. The question in the reference was whether the Special Court could exercise powers under Section 438 while these three authorities on laid down the parameters for grant of anticipatory bail. The availability of section 438 to an accused under the NDPS Act, 1985 was not in dispute. The question was of the forum entitled to exercise it on an application by the accused.

 

State of Rajasthan v. Noor Mohammad (Supra) dealt with provisions of the Motor Vehicles Act, 1939. The expression “save as otherwise provided by or under the Act” occurring at Section 44(3) of the Motor Vehicles Act, 1939 was considered by their Lordships. Their Lordships were of the view that such expression occurring in Section 44(3) should be construed in a harmonious manner with sub-clause (b) of Section 44(3) of the Motor Vehicles Act, 1939. In our reading Section 438 was amply clear.

 

In Harshad S Mehta & Ors. (Supra) the Supreme Court was of the view that the Special Court established under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 was empowered to grant pardon to an accused. The Special Court under such Act of 1992 enjoyed all the powers of a Court of Original Jurisdiction and it held dual capacity and powers both of Magistrates and Court of Session depending upon the stage of the case. The Act of 1992 incorporated the provisions of the Code of Criminal Procedure, 1973. The question in the reference was not of power to grant pardon but the power to exercise Section 438 of the Code of Criminal Procedure, 1973 by the Special Court. In All India Reporter 1959 Supreme Court page 960 (Bhinka & Ors. v. Charan Singh) (Supra) it was held that the headings prefixed to sections or set of sections in some modern statutes were regarded as preambles to such sections. They could not, however, control the plain words of the statutes but they could explain ambiguous words. If there was any doubt in the interpretation of the section the heading certainly helped the Court to resolve the doubt. Section 36C was sufficiently clear and unambiguous. In State of Punjab V. Piara Singh (Supra) the Punjab and Haryana High Courts were considering the power of grant of bail by the Special Court constituted under the Terrorist Affected Areas (Special Courts) Act, 1984. Reviewing the provisions of the Terrorist Affected Areas (Special Courts) Act, 1984 the Punjab and Haryana High Courts found that the Special Court constituted under the Act of 1984 was at a higher pedestal. Cases involving scheduled offences or apparently scheduled offences under the Act of 1984, were required to be brought to the Special court. It was held that, Special Court alone had the jurisdiction to opine whether the offence which it had taken cognizance of, was or was not a scheduled offence. Such an exercise could not be undertaken before any Court other than the Special Court for a scheduled offence or an apparently scheduled offence. Cases could not be thus brought before the Sessions Court for him to exercise the choice in that regard.

 

In Sri Ravi Nandan Sahay (Supra) the majority view of the Full bench of the Patna High Court was that the Special Judge under the Prevention of Corruption Act, 1988 was entitled to exercise all the powers of a Sessions Judge was provided under the Code of Criminal Procedure, 1973 in relation to proceedings under the Act of 1988 so far they were not inconsistent with the provisions of the Act of 1988. It was held that the Special Judge under the Prevention of Corruption Act, 1988 had exclusive power to entertain an application for anticipatory bail or regular bail made by an accused alleged of having committed any offence under the Prevention of Corruption Act, 1988.

 

In Fakhruddin Sharafali Ampanwala (Supra) the Andhra Pradesh High Court considered the question, could an application for anticipatory bail as contemplated under Section 438 of the Code of Criminal Procedure, 1973 be moved before the Sessions Judge instead of the Court of Special Judge for economic offences. It was held by the Andhra Pradesh High Court that Special Court of economic offences being a Court having jurisdiction alone was empowered to take cognizance of the offence which were referable to the special enactments in the annexure to the notification under such the Special Court was created. It also went on to hold that, Chapter XXXIII of the Code of Criminal Procedure, 1973 including the provisions for granting anticipatory bail was available to such Special Court.

 

In C. Abdul Hameed v. State of Karnataka (Supra) an application under Section 438 of the Code of Criminal procedure, 1973 for grant of anticipatory bail for an offence punishable under the Karnataka Forest Act, 1963 came up for consideration. The question framed by the Karnataka High Court was whether there was a bar under Section 104-D of the Karnataka Forest Act for grant of bail under Section 437 or 439 of the Code of Criminal Procedure, 1973 and whether Courts can grant bail under Section 438 of the Code of Criminal procedure, 1973. Provisions of the NDPS Act, 1985 were considered. While considering the NDPS Act, 1985 it was opined that there was no provision in the NDPS Act, 1985, making Section 438 of the Code of Criminal procedure, 1973 inapplicable to cases under the NDPS Act, 1985. Similarly, It was that, there was no provision in Section 104-D of the Karnataka Forest Act, 1963 making Section 438 of the Code of Criminal Procedure, 1973 inapplicable to cases arising under the said Act. There was no prohibition or bar for entertaining a petition for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973 when an accusation was made against an accused under any provisions of the Karnataka Forest Act, 1963. In State of Bihar v. Braj Nandan Raut (Supra) the Patna High Court held that a Sessions Judge had no jurisdiction to entertain bail application of an accused person relating to an offence committed under the Prevention of Corruption Act, 1988. Keeping the principles enunciated by the authorities cited above we considered the reference.

 

Section 36C of the NDPS Act, 1985 provided that the provisions of the Code of Criminal Procedure, 1973 including the provisions as to bails and bonds would apply to the proceedings before a Special Court save otherwise provided in the NDPS Act, 1985. For the purpose of the provisions of the Code of Criminal Procedure, 1973 which were made applicable under Section 36C the Special Court was deemed to be a Court of Session and the person conducting a prosecution before a Special Court was deemed to be a Public Prosecutor.

 

The entirety of Section 36C and its interpretation were viewed from various angles by the appearing parties. The views of the petitioners and the Amicus Curiae were the same on the interpretation of Section 36C and such interpretation varied from the one propounded on behalf of the State by the Public Prosecutor. In the view of the petitioner and the Amicus Curiae, Section 36C of the NDPS Act, 1985, made such of the provisions of the Code of Criminal Procedure, 1973 applicable to proceedings before a Special Court which were not expressly taken away by the NDPS Act, 1985 itself. They read the opening words “save as otherwise provided in this Act” in such context. NDPS Act, 1985 according to them, did not take away the provisions of anticipatory bail from the purview of a Special Court. On the contrary, according to them, Section 36C expressly made the provisions as to bail and bond applicable to a proceeding before a Special Court. The provisions as to bails and bonds of the Code of Criminal Procedure, 1973 was found in Chapter XXXIII thereof. Chapter XXXIII of the Code of Criminal Procedure, 1973 began with Section 436 and ended with Section

 

  1. Section 438 which was under Chapter XXXIII of the Code of Criminal Procedure, 1973 provided for grant of bail to persons apprehending arrest. Since the entirety of Chapter XXXIII was applicable to a Special Court by virtue Section 36C there was no reason to arrive at the finding that the Special Court was denuded the power of Section 438.

 

On the other hand, the Public Prosecutor contended that the mentioning of the words “provisions as to bails and bonds” in Section 36C would not introduce all the provisions of Chapter XXXIII of the Code of Criminal Procedure, 1973 to the NDPS Act, 1985. The Public Prosecutor, read Section 36B of the NDPS Act, 1985 and contrasted the words used in 36B with that of Section 36C of the NDPS Act, 1985. According to the Public Prosecutor, the legislator deliberately used different words in the two Sections to make a distinction on the powers conferred. There was distinction in the choices of words used in the two sections. This distinction had a meaning. In Section 36B all powers conferred by Chapter XXIX and XXX of the Code were preserved. Section 36C of the NDPS Act, 1985 did not mention Chapter XXXIII as contrastingly done in Section 36B were the specific chapters of the Code of Criminal Procedure, 1973 were mentioned. The Public Prosecutor read the two sections to mean that the entirety of powers of Chapter XXXIII of the Code of Criminal Procedure, 1973 was not granted to a Special Court constituted under Section 36C of the NDPS Act, 1985. Since the legislator did not intend the Special Court to exercise powers under Section 438 the entirety of the powers of Chapter XXXIII of the Code of Criminal Procedure, 1973 was not granted under the NDPS Act, 1985. Therefore, the Public Prosecutor contended that, a Special Court constituted under Section 36 of the NDPS Act, 1985 did not have power of Section 438 of the Code of Criminal Procedure, 1973 to entertain a petition under Section 438. The concern expressed by the Amicus Curiae was that, personal liberty guaranteed under Article 21 of the Constitution of India ought not to be curtailed while reading Section 36C of the NDPS Act, 1985. In other words, they wanted the Court to arrive at an interpretation which expanded, if not, at least maintained the personal liberty guaranteed under Article 21 of the Constitution of India in construing Section 36C of the NDPS Act, 1985. On the other end of the spectrum was the anxiety of the Public Prosecutor who wanted the Court to take note of the fact that Section 438 of the Code of Criminal Procedure, 1973 was introduced much later to the Constitution coming into force. On this aspect the Public Prosecutor relied on State of Madhya Pradesh v. Ram Kishana Balothia & Anr. (Supra). State of Madhya Pradesh v. Ram Kishana Balothia & Anr. (Supra) related to Schedule Caste and schedule Tribes (Prevention of Atrocities) Act, 1989 which in Section 18 expressly provided for exclusion of Section 438 of the Code. This kind of express exclusion was absent in the NDPS Act, 1985. (Supra) the Supreme Court was concerned with The Amicus Curiae referred to Balchand Jain (Supra) and Siddharam Satlingappa Mhetre (Supra) on this issue. In Balchand Jain (Supra) the Supreme Court was concerned as to whether an order of anticipatory bail could be competently made by a Court of Session or a High Court under Section 438 of the Code of Criminal Procedure, 1973 in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971 framed under the Defence and Internal Security of India Act, 1971. Their Lordships were of the view that, Section 438 of the Code of Criminal Procedure, 1973 could stand side by side with Rule 184. It was held that, they operated in different situations. In Siddharam Satlingappa Mhetre (Supra) the Supreme Court considered the parameters of grant and refusal of bail in every criminal offence. On the aspect of anticipatory bail their Lordships were of the view that a large number of undertrials were languishing in jail in the country since Section 438 of the Code of Criminal Procedure, 1973 was not allowed its full play. Their Lordships explained the decision of the Constitution Bench in Sibbia case by stating that Section 438 of the Code of Criminal Procedure was not extraordinary in the sense that, it should be invoked only in exceptional or rare cases. Their Lordships found that some Courts of smaller strength erroneously observed that Section 438 of the Criminal Procedure Code, 1973 should be invoked only in exceptional or rare cases. There was unanimity at the bar as to availability of Section 438 of the Code of Criminal Procedure, 1973 to an accused under the NDPS Act, 195. The arena of controversy was the forum entitled to exercise such powers. The petitioner and the Amicus Curiae suggested that the Special Court were vested with such powers under the scheme of the NDPS Act, 1985 while the Public Prosecutor wanted the Sessions Court to exercise such powers.

 

Much revolved around the interpretation of section 36C of the NDPS Act, 1985. Sri Jeyaram Educational Trust (supra) required us to find out whether the words used in section 36C of the NDPS Act, 1985 were clear and unambiguous or not. Section 36C of the NDPS Act, 1985 was as follows: –

 

36C. Application of Code to proceedings before a Special Court.- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

 

For the purpose of argument let us keep aside the words “Save as otherwise provided in this Act………….” used in Section 36C for a moment. The moment those words were absent from Section 36C it allowed the entirety of the Code of Criminal Procedure, 1973 to apply to a proceeding under the NDPS Act, 1985. These provisions of the Code of Criminal Procedure, 1973 obviously entailed within its fold Section 438. In absence of the words “Save as otherwise provided in this Act……………” a Special Court then had the jurisdiction to exercise powers under Section 438 of the Code of Criminal Procedure, 1973. For a better understanding, after deleting the words “Save as otherwise provided in this Act” from Section 36C it read as follows:-

 

36C. Application of Code to proceedings before a Special Court.- ………………………………the provisions of the Code of Criminal procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

 

If Section 36C was aforesaid, there was no debate that powers under Section 438 of the Code of Criminal Procedure, 1973 was available to a Special Court. We were not permitted to either delete considered or add the words from the statute. We were to consider the section as it stood in the statute book. The section opened with the words “Save as otherwise provided in this Act……………”. Now came the question of interpreting “Save as otherwise provided in this Act……………..” used in Section 36C. On a plain reading the words “Save as otherwise provided in this Act……………..” used in Section 36C would mean that the NDPS Act, 1985 was required to provide specific exclusions of the Code of Criminal Procedure, 1973 expressly, for a provision of the Code of Criminal Procedure, 1973 to be inapplicable, in a proceeding under the NDPS Act, 1985. The provisions of the Code of Criminal Procedure, 1973 were not barred from their application to a proceeding under the NDPS Act, 1985. Sections 32A, 33, 36A, 37, 51, 52A (4) of the NDPS Act, 1985 made either the provisions of the Code of Criminal Procedure, 1973 inapplicable or incorporated into the NDPS Act, 1985 with modifications. “Save as otherwise provided in this Act….” was required to be read in such perspective. Those words did not take away the jurisdiction of the Special Court constituted under the NDPS Act, 1985 to exercise powers of Section 438 of the Code. Those words clarified that save and except as provided in the NDPS Act, 1985 all other provisions of the Code of Criminal Procedure, 1973 would apply to a proceedings under NDPS Act, 1985. When the legislator referred to the specific chapters of the Code in Section 36B while not referring the chapter number in Section 36C disclosed an intention of the legislator not to vest the Special Court powers under Section 438, contended the Public Prosecutor. Section 36B dealt with appeal and revision. The High Court was identified the appeal and the revisional Court with all powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973. Section 36C laid down that the Code of Criminal Procedure, 1973 would apply to a proceeding before a Special Court save as otherwise provided in the NDPS Act, 1985. Entirety of the Code, save as otherwise provided in the NDPS Act, 1985 was applicable. The words “………….. (including the provisions as to bail and bonds)……………..” merely clarified that all the provisions of the Code as to bail and bonds would apply to a proceeding before a Special Court. Were the contention of the Public Prosecutor to be adopted, the NDPS Act, 1985 was required to specify all the Code in chapter and verse for it to be made applicable. That interpretation would, we are afraid, lead us to an absurd situation. Section 12AC as introduced by way of amendment to the Essential Commodities Act, 1955 was considered in Pijush Kanti Dey (Supra). It was considered by the Court making the reference. Pijush Kanti Dey (Supra) was rendered on reference. The question before Pijush Kanti Dey (Supra) was whether the Court of Session and the Special Court constituted under the Essential Commodities Act, 1955 have concurrent jurisdiction to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to a person apprehending arrest on an accusation of having committed an offence under such Act. The Division Bench in Pijush Kanti Dey (Supra) noted that, Section 438 of the Code of Criminal Procedure, 1973, was contained under Chapter XXXIII. It read Chapter XXXIII to mean that, the legislature intended to bring bail in anticipation of arrest within the category of bail and not treat it as something different from bail. The Division Bench relied upon All India Reporter 1980 Supreme Court page 1632 (Gurubaksh Singh v. State of Punjab) to return a finding that, anticipatory bail would fall within the category of bail, and to be more precise the term bail included anticipatory bail. Section 12AC of the Essential Commodities Act, 1955 was quoted in Pijush Kanti Dey (Supra). Section 12AC of such Act, was as follows:-

 

“12AC. 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 purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor”. When Section 12AC of the Essential Commodities Act, 1955 and Section 36C of the NDPS Act, 1985 were compared the only conclusion possible was that, the two sections were pari materia. Considering Section 12AC of the Essential Commodities Act, 1955 the Division Bench in Pijush Kanti Dey (Supra) was of the view that, by virtue of the deeming provision contained in Section 12AC of the Essential Commodities Act, 1955 the Special Court constituted under the Essential Commodities Act, 1955 was required to be regarded as a Court of Session in relation to a proceeding before it and that, the provision of Chapter XXXIII of the Code of Criminal Procedure, 1973 as to bail and bonds would apply to such proceedings. In such perspective, the Division Bench in Pijush Kanti Dey (Supra) returned a finding that, a Special Court under the Essential Commodities Act, 1955 was fully competent to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to a person accused of or suspected of committing any offence under the Essential Commodities Act, 1955. Moreover, the Division Bench in Pijush Kanti Dey (Supra) found that, the Essential Commodities Act, 1955 was a special enactment and a self-contained Code, conferring special jurisdiction and powers to the Special Court. It held that, the powers conferred upon the Court of Session to grant anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, did not extend to a case where a person apprehending arrest of an accusation of having committed an offence under the Essential Commodities Act, 1955. The Karnataka High Court in S. Murugeshappa & Ors. (Supra) and Madhya Pradesh High Court in Karamchand & Ors. (Supra) were of the view that the Special Court under the Essential Commodities Act, 1955 as well as the High Courts were entitled to exercise powers under Section 438 of the Code of Criminal Procedure, 1973. The Rajasthan High Court in Suresh Chand & Ors. (Supra) was of the view that a High Court could grant anticipatory bail for an offence committed under the Essential Commodities Act, 1955. A Single Judge of the Andhra Pradesh High Court in B. Kuppa Naidu (Supra) was of the view that the Sessions Court and the High Court were not fettered by the provisions indicated under Section 12AA of the Essential Commodities Act, 1955 from exercising powers under Section 438 of the Code of Criminal Procedure, 1973. This view of the Andhra Pradesh High Court was different to that expressed by our Court in Pijush Kanti Dey (Supra). In Pijush Kanti Dey (Supra) our Court was of the view that it was for the Special Court constituted under the Essential Commodities Act, 1955 and not the Sessions Court to exercise powers under Section 438 of the Code of Criminal Procedure for offence relating to the Essential Commodities Act, 1955.

 

A different issue was raised before the Gauhati High Court. The issue before the Gauhati High Court in 2004 Volume 3 Crimes page 433 (Baljit Singh v. State of Assam) was whether an application for grant of bail under Section 438 of the Code of Criminal Procedure, 1973 before the High Court was maintainable for offences under the NDPS Act, 1985 in the face of Section 36A(3) thereof. The Gauhati High Court considered the cases cited before it including two judgments of Single Judges of the Gauhati High Court having different views, namely, 2003 Volume 1 Gauhati Law Times page 107 (Suresh Dutta v. State of Tripura) and 2003 Volume 2 Gauhati Law Times page 151 (Balajit Singh v. State of Assam). It arrived at a finding that, Section 36C made the provisions of the Code of Criminal Procedure, 1973 including those relating bail and bonds applicable to the proceedings before the Special Court subject to the provisions of the NDPS Act, 1985. It found that, the Special Court for much purpose was deemed to be a Court of Session. The Division Bench of the Gauhati High Court held that, an application for pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 was maintainable in law before a High Court in respect of offences alleged to be committed under the NDPS Act, 1985. Both the Delhi High Court and Himachal Pradesh High Court in Ved Prakash Goel (Supra) and Rakesh Kumar alias Kukka (Supra), respectively, were concerned with applications under Section 438 of the Code of Criminal Procedure, 1973 made before them. Those two authorities would, therefore, not shed much light on the question referred.

 

There was unanimity at the bar as to the availability of Section 438 of the Code of Criminal procedure, 1973 to an accused under the NDPS Act, 1985.

 

The same logic as that of Pijush Kanti Dey (Supra) would apply in the case of the NDPS Act, 1985. NDPS Act, 1985 was a special enactment. It was an enactment which consolidated and amended the law relating to the narcotic drugs and psychotropic substances in India. It provided for speedy trial. It provided for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The NDPS Act, 1985 provided for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances. The NDPS Act, 1985 made provisions to be in tune with the International Convention on Narcotic Drugs and Psychotropic Substances that India were party to. On consideration of the various provisions of the NDPS Act, 1985 it could be safely said that the NDPS Act, 1985 was a self-contained Code. It conferred special jurisdiction and powers to the Special Court constituted under the NDPS Act, 1985 with regard to trial of offences committed under such Act. The NDPS Act, 1985 required trial of offences under such Act punishable with imprisonment for three years and above to be tried by Special Court constituted under Such Act. The provisions of the Code of Criminal Procedure, 1973 save and except those provisions which were expressly excluded were applicable to a proceeding before the NDPS Act, 1985. The powers of Section 438 of the Code of Criminal Procedure, 1973 to be unavailable to a Special Court constituted under the NDPS Act, 1985 was required to be taken away expressly by the NDPS Act, 1985 itself. Such was not the position. Section 36C of the NDPS Act, 1985 empowered the Special Court constituted under the NDPS Act, 1985 to exercise powers under Section 438 of the Code of Criminal Procedure, 1973. These provisions of the Code of Criminal Procedure, 1973 were not taken away expressly or otherwise by the NDPS Act, 1985.

 

Answer We would, therefore, answer the reference by stating that a Special Court constituted under Section 36 of the NDPS Act, 1985 was competent to entertain a pre-arrest bail petition under Section 438 of the Code of Criminal Procedure, 1973.

 

(Debangsu Basak, J)

Number of prosecution witnesses resiled from their previous statements and turned hostile. No independent public witness was associated. The whole case of the prosecution is based only upon the statements recorded under Section 67 of NDPS Act of the respondents and various other witnesses. However, the Trial Court came to the conclusion that the statements were not voluntary. Detailed reasons have been narrated in the impugned judgment to arrive at this conclusion. Moreover, there was no corroborating material in support of the statements allegedly recorded under Section 67 of the NDPS Act. The prosecution did not investigate as to from where the contraband was procured by the respondents. No call details were placed on record. The relevant documents showing the export were not collected and proved. There is no evidence as to how much consideration was received for the alleged export of contraband, and if so, by whom and when. The prosecution was unable to adduce clinching evidence to establish when and under what circumstances, the respondent No.2 made statement under Section 67 of NDPS Act. He appeared as DW-2 in his defence and categorically denied to have made any such statement voluntarily.

—————————————————————————————————————————————-

IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRL.L.P. 121/2012

NARCOTICS CONTROL BUREAU                           ….. Petitioner

versus

GURNAM SINGH & ANR.                              ….. Respondents

CORAM:

HON’BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

  1. Narcotics Control Bureau (the petitioner) has filed Criminal Leave Petition to challenge a judgment dated 30.08.2011 of learned Special Judge, NDPS, New Delhi by which the respondents – Gurnam Singh and N.C.Chellathambi were acquitted of the charges. The leave petition is contested by the respondents. I have heard the learned counsel for the parties and have examined the record. Allegations against the respondents were that on or before 27.01.2003, they entered into criminal conspiracy with Lal Man Pua (Chinese national), Gurbachan Singh, Devinder Singh and Shekhar (not arrested) to illegally acquire, possess and deal with controlled substance. On 27.01.2003, the Philippine Drug Enforcement Agency (in short PDEA) seized one ton of Ephedrine, a controlled substance, which was exported by the respondents in furtherance of criminal conspiracy from India to Manila, Philippine. During the course of investigation both the respondents were arrested and their statements under Section 67 of NDPS Act were recorded. It transpired that the Ephedrine was consigned to Philippine through M/s. Gray Fox Inc., RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi to M/s. Premier Sea and Air Cargo Movers Corporation, Manila, Philippine in container No. HDMU-2294884 through shipper Aquarius Logistic Pvt. Ltd., 409, Ansal Tower, Nehru Place, New Delhi. The documents received from the concerned agency from Manila were forwarded by the NCB (Headquarters) to the Zonal Director, Delhi Zonal Unit, NCB. The investigation was taken over by Mangal Das, who visited the premises RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi on 18.03.2004 and found respondent No.1 – Gurnam Singh present there. Respondent No.1 in his voluntary statement under Section 67 of NDPS Act on 18.03.2004 disclosed that his brother-in-law Devinder Singh and younger brother Gurbachan Singh had floated M/s. Gray Fox Inc. and two other companies by the name of Sidana’s Collection and Singh Cargo (Air and Sea). He further disclosed that he was working in Singh Cargo and used to deliver letters to M/s. Impex Trade Agencies, 37B, Pocket-A, Ashok Vihar Phase- III, Delhi run by Gurnam Singh and Virender Singh. The Investigating Officer visited B-2-B Block, Janakpuri, New Delhi, where Devinder Singh was residing with his family. During search of the said house, certain cargo bills and debit notes of Aquarius Logistic Pvt. Ltd. were recovered and seized. In his second statement under Section 67 of NDPS Act on 19.03.2004. Respondent No.1 revealed that he was aware that Ephedrine was sent by his brother-in-law Devinder Singh and younger brother Gurbachan Singh by concealing it along with bleaching powder arranged through M/s. Impex Trade Agencies. Statements of Gurnam Singh and Virender Singh, owner of M/s. Impex Trade Agencies were recorded under Section 67 of NDPS Act and they revealed that they had arranged the bleaching powder from New National Cohan Company, Tilak Bazaar, Delhi and were aware that Devinder Singh had concealed Ephedrine along with the said bleaching powder and exported to Philippine. It also emerged that M/s. Impex Trade Agencies was dealing with respondent No.2 – N.C.Chellathambi for procuring orders for supply of stainless steel utensils from Myanmar for the last 3 – 4 years and they were aware that respondent No.2 was exporting bleaching powder through Devinder Singh’s clearing agency Singh Cargo. They introduced respondent No.2 to Devinder Singh and arranged for the bleaching powder to be consigned to Manila. Statement of respondent No.2 was recorded under Section 67 of NDPS Act and he admitted that Ephedrine was sent by putting the same in bleaching powder to Manila for which he got ` 2 lacs to ` 3 lacs as commission. After recording the statements of the witnesses conversant with the facts, the respondents were charge- sheeted under Sections 29 & 25A of NDPS Act. To establish the charges, prosecution examined thirteen witnesses. In their 313 statements, the respondents pleaded false implication. Second respondent appeared as defence witness as DW-2. DW-1 (C.Kali Amma) and DW-3 (Ashwani Kumar Gaind) were examined in defence. After appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, for the detailed reasons acquitted the respondents of the charges.
  2. On 27.01.2003, Ephedrine, weighing a ton, was seized by PDEA at Manila (Philippine) allegedly exported through M/s. Gray Fox Inc., RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi. No information was conveyed by PDEA to the Indian authorities soon after its seizure on 27.01.2003. Only during a conference held in Bangkok, Mr.A.P.Kala, Deputy Director General (Enforcement) was apprised about the seizure of Ephedrine on 27.01.2003. He thereafter, on 31.12.2003 wrote a letter (Ex.PW-13/A) to Mr.Avenido, Director General, PDEA for a detailed report along with copies of the statements and relevant documents. Pursuant to the said letter, vide letter dated 06.02.2004 (Ex.DX), he received documents from the said agency collectively exhibited (PW- 13/B) running into 50 pages. It appears that no immediate steps were taken to unearth the conspiracy soon after NCB came to know about the seizure of Ephedrine during Bangkok conference. PW-13 (A.P.Kala) admitted in the cross-examination that he did not see the case property and no efforts were made to bring it into India. He had no personal knowledge about the company who had exported the contraband. The documents were not called from the said country through Letter of Rogatory. PW-7 (Mangal Dass), the Investigating Officer, also admitted in the cross- examination that he had not seen the case property i.e. Ephedrine at any point of time and had not requisitioned or asked the Philippine Authorities to send it or its samples to India. He was not aware if any officer / staff of NCB had gone to Manila for the purpose of investigation in this case. PW- 8 (Shankar Rao), who was overall incharge of the investigation, admitted that he had not seen the substance at any point of time. He however, admitted that he had never given any directions either to his subordinate staff or to the Philippine counterpart to send the substance or sample in the present case to India. Similarly is the testimony of PW-9 (Sandeep Kumar), who also admitted that the case property was not seen at any point of time physically either in India or in Manila. He disclosed the he had visited Manila for discussion with PDEA. Oral discussions were reduced into writing and were a matter of record in the office of NCB but are not part of the judicial file. He elaborated that they could not see the case property or sample at Manila due to legal complications despite their efforts. No permission was sought to draw the samples of the substance to bring it to India. Apparently, none of the witnesses was able to physically inspect the case property i.e. Ephedrine and it was never brought to India and exhibited in the Court. The prosecution also did not bring on record any document to show the outcome of the investigation carried out by PDEA at Manila or to place on record the judgment whereby any individual with whom the respondents had allegedly conspired was held responsible / guilty for importing the controlled substance from India. The prosecution did not examine any witness from PDEA to establish recovery of any controlled substance. In the absence of case property / sample and in the absence of cogent and reliable evidence of its recovery, the respondents cannot be held responsible for the controlled substance allegedly recovered by PDEA at Manila. The Trial Court has discussed the relevant contentions of the petitioner’s counsel and has dealt with them minutely with valid reasoning. The prosecution did not explain as to why Devinder Singh, brother-in-law of respondent No.1 who was the Director in M/s. Gray Fox Inc. was not implicated despite availability. The prosecution could not produce any cogent material if respondent No.1 had any active role to play in M/s. Gray Fox Inc. or was responsible for its day to day affairs. Mere presence of respondent No.1 at the office of M/s. Gray Fox Inc. at the time of visit of PW-7 (Mangal Dass) is not enough to connect him with M/s. Gray Fox Inc. PW-7 admitted that before summoning Gurnam Singh, premises of M/s. Gray Fox Inc. were searched but no incriminating article was recovered from there. Despite having come to know that M/s. Gray Fox Inc. was constituted by Devinder Singh as Director, no proceedings were initiated against them. The premises at Nihal Vihar, Sayad Nangloi, New Delhi belonged to Devinder Singh’s father-in-law and it were a residential premises occupied by Devinder Singh’s father-in-law and family. Devinder Singh and his family were staying at another place at Janakpuri. He admitted that the occupants at RZ-F-208, Nihal Vihar, Sayad Nangloi, New Delhi were residing since long. PW-7 was unable to disclose as to from where Devinder Singh used to perform his day to day affairs of the company M/s. Gray Fox Inc.
  3. Number of prosecution witnesses resiled from their previous statements and turned hostile. No independent public witness was associated. The whole case of the prosecution is based only upon the statements recorded under Section 67 of NDPS Act of the respondents and various other witnesses. However, the Trial Court came to the conclusion that the statements were not voluntary. Detailed reasons have been narrated in the impugned judgment to arrive at this conclusion. Moreover, there was no corroborating material in support of the statements allegedly recorded under Section 67 of the NDPS Act. The prosecution did not investigate as to from where the contraband was procured by the respondents. No call details were placed on record. The relevant documents showing the export were not collected and proved. There is no evidence as to how much consideration was received for the alleged export of contraband, and if so, by whom and when. The prosecution was unable to adduce clinching evidence to establish when and under what circumstances, the respondent No.2 made statement under Section 67 of NDPS Act. He appeared as DW-2 in his defence and categorically denied to have made any such statement voluntarily.
  4. Burden to prove the case beyond reasonable doubt was upon the prosecution. The provisions of the Act and the punishment prescribed therein being indisputably stringent, the extent of burden to prove the foundational facts on the prosecution i.e. ‘proof beyond all reasonable doubt’ would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. Defence witnesses have to be given weightage at par with that of the prosecution witnesses.
  5. Taking into consideration all these facts and circumstances, I find no illegality or material irregularity in the impugned judgment which is based upon fair appraisal of the evidence and needs no interference. The leave petition is unmerited and is dismissed. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE

Meaning Of White Collar Crime

White collar crimes involve criminal activities committed by people in the regular course of their business and involve bribery, extortion, fraud and embezzlement. These crimes usually end in financial gain for the perpetrator.

This notion was laid down for the first time in the field of criminology by Prof. Edwin Sutherland in 1941. He defined white collar crime as “crime committed by persons of respectability and high social status in course of their occupation”. Examples of it include fraudulent advertisements, infringement of patents, publication of falsified balance sheet of business, passing of goods, concealment of defects in the commodity for sale etc. These white collar crimes by nature are such that the injury or the damage caused as a consequence of them is so widely diffused in the large body of citizens that their enormity as regards personage victim is almost trifling.

White collar crimes are criminal acts that are performed by people in the course of business committed for financial gain.

Types of White Collar Crime In India

The white collar crimes which are common to Indian trade and business world are hoardings, profiteering and black marketing. Violation of foreign exchange regulations and import and export laws are frequently resorted to for the sake of huge profits. That apart, adulteration of foodstuffs, edibles and drugs which causes irreparable danger to public health is yet another white collar crime common in India.

The Santhanam Committee Report in its findings gave a vivid picture of white collar crimes committed by persons of respectability such as businessmen, industrialists, contractors and suppliers as also the corrupt public officials . The Report of the Vivin Bose Commission of Inquiry into the affairs of Dalmia Jain group of companies in 1963 highlights how these industrialists indulge in white collar crimes such as fraud , falsification of accounts, tampering with records for personal gains and tax evasion etc. Similar observations re made by Mr Justice M.C Chagla about the big business magnate Mundhra who wanted to “build up an industrial empire of dubious means.”

The Law Commission of India has suggested drastic measures against such offenders. In the Commission’s observation the tedious prosecution process involved in the trial of such cases frustrates the cause of justice.

 Bank Fraud: To engage in an act or pattern of activity where the purpose is to defraud a bank of funds.

Blackmail: A demand for money or other consideration under threat to do bodily harm, to injure property, to accuse of a crime, or to expose secrets.

 Bribery: When money, goods, services, information or anything else of value is offered with intent to influence the actions, opinions, or decisions of the taker. You may be charged with bribery whether you offer the bribe or accept it.

 Cyber Crimes :Where computer hackers steal information sources contained on computers such as: bank information, credit cards, and proprietary information. Counterfeiting: Occurs when someone copies or imitates an item without having been authorized to do so and passes the copy off for the genuine or original item. Counterfeiting is most often associated with money however can also be associated with designer clothing, handbags and watches.

 Credit Card Fraud: The unauthorized use of a credit card to obtain goods of value.

 Currency Schemes: The practice of speculating on the future value of currencies.

 Educational Institutions: Yet another field where collar criminals operate with impunity are the privately run educational institutional in this country. The governing bodies of those institutions manage to secure large sums by way of government grants of financial aid by submitting fictitious and fake details about their institutions. The teachers and other staff working in these institutions receive a meager salary far less than what they actually sign for, thus allowing a big margin for the management to grab huge amount in this illegal manner.

Embezzlement: When a person who has been entrusted with money or property appropriates it for his or her own use and benefit.

Extortion: Occurs when one person illegally obtains property from another by actual or threatened force, fear, or violence, or under cover of official right.

 Forgery: When a person passes a false or worthless instrument such as a check or counterfeit security with the intent to defraud or injure the recipient.

 Insider Trading: When a person uses inside, confidential, or advance information to trade in shares of publicly held corporations.

Money Laundering: The investment or transfer of money from racketeering, drug transactions or other embezzlement schemes so that it appears that its original source either cannot be traced or is legitimate.

 Securities Fraud: The act of artificially inflating the price of stocks by brokers so that buyers can purchase a stock on the rise.

Tax Evasion: When a person commits fraud in filing or paying taxes. The complexity of tax laws in India has provided sufficient scope for the tax-payers to evade taxes. The evasion is more common with influential categories of persons such as traders, businessmen, engineers, contractors etc. The main difficulty posed before the Income Tax Department is to know the real and exact income of these

Punishments

Criminal offences, in India, have been codified in the Indian Penal Code of 1860, which covers most of the above said white collar crimes and defines the punishments for the commission/attempt of those offences. Other offences are governed by their respective field of enactments.

The crime is no less heinous than putting an end to the life of a person. A large number of suicides which follow such white collared crime is indicative of the magnitude of the crime involved. Therefore, the fact that a maximum punishment of 7 years is prescribed for a single offence of cheating cannot be pressed into service by the petitioners for seeking relief.

Conclusions:

It is required to take note of the investigation made by the State agency for such type of alleged white-collar crimes. The investigation for the white collar crimes must be conducted by highly trained Investigating Officer, who are well conversant with the system and the field in which the crime has been committed. In the present case, it is the banking in cooperative field. Not only that, but for detection of while collar crimes, it is expected for the State to undertake the investigation through ultra modern machineries like lie detector test, narco test etc. Not only that, but normally in the matter of investigation of while collar crimes running into crores of rupees, it would be expected for the Investigating Officer to immediately intimate the concerned Airport Authorities, so that the accused may not fly away, outside the territory of the country. In the same manner, the I.O. conducting the investigation for white collar crimes running into crores of rupees has to take immediate steps for intimating the concerned bankers, so that the accused may not withdraw and convert the money in such a manner which makes the things irreversible, even if subsequently found that on the date of the complaint, the money realized out of the white collar crime should be made available to the victims of such crimes as an outcome of the trial.

Bail in White Collar Crimes Cases in India.

Bail law on economic and white collar offences is well delineated and no more res integra. Echoing the concern for economic offences, which are more dangerous and having far reaching impact on society than bodily offences, Honble Apex Court and several High Courts have held that in dealing with such bail applications, Courts are required to analyze and evaluate certain relevant factors cautiously.

As held in the matter of : Mallampati Gandhi S/O. Naga Raju vs The State Of Telangana

The Hon’ble Apex Court further held that an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The Hon’ble Apex Court has further held that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail held in the matter of Murthy.V.K vs The State

White Collar Crimes related judgments:

  1. Narinderjit Singh Sahni And Anr vs Union Of India And Ors: SC
  2. Noormohmed Jamalbhai Latiwala vs State Of Gujarat : Gujrat High Court.
  3. V.K vs The State : Madras High Court.

 In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.

  In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.

  Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same

As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35

READ THE WHOLE JUDGMENTS BELOW:


REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2015

Social Action Forum for Manav Adhikar …Petitioner(s) and another

VERSUS

Union of India Ministry of Law and Justice and others …Respondent(s)

WITH CRIMINAL APPEAL NO. 1265 OF 2017

WRIT PETITION (CRIMINAL) NO. 156 of 2017

J U D G M E N T

Dipak Misra, CJI

Law, especially the criminal law, intends to control, if not altogether remove, the malady that gets into the spine of the society and gradually corrodes the marrows of the vertebrae of a large section of the society. A situation arises and the legislature, expressing its concern and responsibility, adds a new penal provision with the intention to achieve 2 the requisite result. When a sensitive legal provision is brought into the statute book, the victims of the crime feel adequately safe, and if the said provision pertains to matrimonial sphere, both the parties, namely, wife and husband or any one from the side of the husband is booked for the offence and both the sides play the victim card. The accused persons, while asserting as victims, exposit grave concern and the situation of harassment is built with enormous anxiety and accentuated vigour. It is propounded in a court of law that the penal provision is abused to an unimaginable extent, for in a cruel, ruthless and totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in. Thus, the abuse of the penal provision has vertically risen. When the implementation of law is abused by the law enforcing agency, the legislature introduces a protective provision as regards arrest. Needless to say, the courts have ample power to grant pre-arrest bail or popularly called anticipatory bail and even to quash the criminal proceeding totally to stabilize the lawful balance because no court of law remotely conceives of a war between the two sexes. The courts remain constantly alive to the situation that though no war takes place, yet neither anger nor vendetta of the aggrieved section should take an advantage of the legal provision and harass the other side with influence or espousing the principle of sympathy. The role of the law enforcing agency or the prosecuting 3 agency is sometimes coloured with superlative empathy being totally oblivious of the sensation to make maladroit efforts to compete with the game of super sensitivity. Such a situation brings in a social disaster that has the potentiality to vertically divide the society. The sense of sensitivity and the study of social phenomenon are required to be understood with objectivity. In such a situation, it is obligatory on the part of the legislature to bring in protective adjective law and the duty of the constitutional courts to perceive and scrutinize the protective measure so that the social menace is curbed. We are, in the instant matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, „the IPC‟).

  1. Section 498-A was brought into the statute book in the year 1983. The objects and reasons for introducing Section 498-A IPC can be gathered from the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-

“The increasing number of Dowry Deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses constituted to examine the working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws.

  1. The following are the changes that are proposed to be made:

(i) The Indian Penal Code is proposed to be amended to make cruelty to a woman by her husband or any relative of her husband punishable with an imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by the husband or any other relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her, and harassment of woman by her husband or by any relative of her husband with a view to coercing her or any of her relatives to meet any unlawful demand for property would be punishable as cruelty, the offence will cognizable if information relating to the commission of the offence is given to the officer in charge of a Police Station by the victim of the offence or a relative of the victim of the offence or, in the absence of any such relative, by any public servant authorized in this behalf by the State Government. It is also being provided that no court shall take cognizance of the offence except upon a Police Report or complaint made by the victim of the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption (vide Clauses 2, 5 and 6 of the Bill.)

(ii) Provision is being made for inquest by Executive Magistrates and for postmortem in all cases where a woman has, within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence. Post-mortem is also being provided for in all cases where a married woman has died within seven years of her marriage and a relative of such woman has made a request in this behalf (vide Clauses 3 and 4 of the Bill)

(iii)The Indian evidence Act, 1872 is being amended to provide that where a woman has committed suicide 5 within a period of seven years from date of her marriage and it is shown that her husband or any relative of her husband and subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband (vide Clause 7 of the Bill)

  1. The Bill seeks to achieve the above objectives.”
  2. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others1 , it was held by the Supreme Court:

“Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.”

  1. In B.S. Joshi and others v. State of Haryana and another2 , the Court observed:- 1 (2005) 6 SCC 281 : AIR 2005 SC 3100 2 (2003) 4 SCC 675 : AIR 2003 SC 1386 6

“There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is eveiy likelihood that nonexercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.”

  1. In Brij Lal v. Prem Chand and another3 , this Court ruled thus:

“It would not be out of place for us to refer here to the addition of Sections 113-A and 113-B to the Indian Evidence Act and Sections 498-A and 304-B to the Indian Penal Code by subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second amendment) Act, 1983 (Act 46 of 1983) and Section 113-B of the Evidence Act and 304-B Indian Penal Code have been introduced by Act No. 43 of 1986. The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the Legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113-A and 113-B in the Indian Evidence Act and Sections 498-A and 304-B in the Indian Penal Code. By reason of Section 113-A, the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman 3 (1989) 2 SCR 612 7 had committed suicide within a period of seven years from her marriage, and (2) that the husband or relation had subjected her to cruelty. We are referring to these provisions only to show that the Legislature has realised the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths…”

  1. Presently, to the factual score. The instant Petitions have been preferred under Article 32 of the Constitution of India seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498-A IPC including their prevention, investigation, prosecution and rehabilitation of the victims and their children at the Central, State and District levels. That apart, prayer has been made to issue a writ of mandamus to the respondents for a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law of the land, i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
  2. It has been averred by the petitioners that hundreds of women are being subjected to horrific acts of violence often in the guise of domestic abuse or to extract more money from the girl’s natal family due to absence of any uniform system of monitoring and systematic review of 8 incidents of violence against married women which has led to dilution of the legislative intent behind Section 498-A IPC. And, in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A IPC is not warranted.
  3. It has been contended that Section 498-A IPC, since its introduction, has increasingly been vilified and associated with the perception that it is misused by women who frequently use it as a weapon against their in-laws. As per the petitioners, though there is general complaint that Section 498-A IPC is subject to gross misuse, yet there is no concrete data to indicate how frequently the provision has been misused. Further, the Court, by whittling down the stringency of Section 498-A IPC, is proceeding on an erroneous premise that there is misuse of the said provision, whereas in fact misuse by itself cannot be a ground to repeal a penal provision or take away its teeth.
  4. It is set forth in the petition that Section 498-A IPC has been specifically enacted to protect the vulnerable sections of the society who have been victims of cruelty and harassment. The social purpose behind Section 498-A IPC is being lost as the rigour of the said provision has been diluted and the offence has practically been made bailable by reason of various qualifications and restrictions prescribed by various 9 decisions of this Court including Rajesh Sharma and others v. State of U.P. and another4 , a recent pronouncement.
  5. It has also been submitted by the petitioners that the police is hesitant to arrest the accused on complaint of married women and the same inaction is justified by quoting various judgments, despite the fact that Section 498-A IPC discloses a non-bailable offence and sufficient checks and balances have been provided in the law itself under Section 41 CrPC. To prevent arbitrary and necessary arrest, the statute very clearly states that the police shall record reasons for effecting arrest as well as for not arresting.
  6. The petitioners have also asseverated that there is lack of monitoring mechanism to track cases registered under Section 498-A IPC including systematic study of the reason of low convictions and due to this absence, penal laws have not been able to secure a safe married environment to women. This, as per the petitioners, has also resulted in rise in cases under Section 498-A IPC because the deterrent effect of the said provision is getting diluted. It is also the case of the petitioners that investigation by the police of offence under Section 498-A IPC is often unprofessional and callous and the investigating officers 4 AIR 2017 SC 3869 : 2017 (8) SCALE 313 10 perceptibly get influenced by both the parties which results in perpetrators escaping conviction.
  7. It is further contended that in many cases under Section 498-A, IPC the Court has not considered mental cruelty caused to the woman but has concentrated only on any sign of physical cruelty due to which the courts do not look into a case if the evidence does not show that the woman was physically harassed. This has led the courts to brand the woman on many occasions as hyper-sensitive or of low tolerance level.
  8. It has been further averred that the alleged abuse of the penal provision is mostly by well-educated women who know that the offence is both cognizable and non-bailable and impromptu works on the complaint of the woman by placing the man behind the bars, but this cannot be a ground for denying the poor and illiterate women the protection that is offered by Section 498-A IPC against cruelty, rather there is a need to create awareness specifically in the rural areas about the laws for protection of women and consequent available remedies in case of breach.
  9. It is also set forth in the petition that despite the Dowry Prohibition Act, 1961 being passed, the irony still survives perhaps with more oxygen, for the social evil of dowry is on the increase and is openly 11 practised with pride. It is put forth that women today are still tortured and often the court, despite being the ultimate saviour, does not come to the rescue of these women as a consequence of which an atmosphere of ambivalence prevails and such societal ambivalence creates a situation of war between two classes though in actuality the offence is relatable to individuals. A sorry state of affairs is pronouncedly asserted.
  10. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have a uniform policy of registration of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note here that during the pendency of this Writ Petition, the judgment had been pronounced in Rajesh Sharma (supra).

The Court in Rajesh Sharma (supra) issued the following guidelines:-

“19.i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses. 12

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication

. (e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord; 13

  1. iv) If a bail application is filed with at least one clear day‟s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

. viii) These directions will not apply to the offences involving tangible physical injuries or death.”

  1. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer had been made in the said Writ Petition to implement the suggestion that out of three members, at least two members should be appointed in the Family Welfare Committee. When this Writ Petition was listed on 13.10.2017, the following order came to be passed:-

“Mr. Alok Singh, learned counsel for the petitioner though has a different set of prayers in the writ petition, it fundamentally requires this Court to implement directions rendered in Criminal Appeal No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another]. Additionally, learned counsel would submit that certain lady members, certain organizations and welfare committees are to be involved. At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere. Issue notice to the respondent Nos.1 to 3. No notice need be issued to the respondent No.4. Even if the petitioner does not take steps, the Registry shall see to it that the respondents are served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as Amicus Curiae to assist the Court in the matter.

List the matter on 29th November, 2017.”

  1. Mr. V. Shekhar, learned senior counsel, was appointed as Amicus Curiae to assist the Court in the matter.
  2. It was submitted by the learned Amicus Curiae that the decision in Rajesh Sharma (supra) requires reconsideration, for the said judgment confers powers on the Family Welfare Committee to be constituted by the District Legal Services Authority which is an extra-judicial committee of para legal volunteers/social workers/retired persons/wives of working officers/other citizens to look into the criminal complaints under Sections 15 498-A IPC in the first instance and further, there has been a direction that till such time a report of the committee is received, no arrest should be made. It is urged that the constitution of FWC to look into the criminal complaints under Section 498-A IPC is contrary to the procedure prescribed under the Code of Criminal Procedure.
  3. It is further propounded that the directions in certain paragraphs of the judgment in Rajesh Sharma (supra) entrusting the power to dispose of the proceedings under Section 498-A IPC by the District and Sessions Judge or any other senior judicial officer nominated by him in the district in cases where there is settlement, are impermissible, for an offence under Section 498-A is not compoundable and hence, such a power could not have been conferred on any District and Sessions Judge or any senior judicial officer nominated by him. Elaborating the said submission, it is canvassed that the High Court is empowered under Section 482 CrPC to quash the proceeding if there is a settlement between the parties. Learned Amicus Curiae further submitted that the recovery of disputed dowry items may not itself be a ground for denial of bail which is the discretion of the court to decide the application of grant of bail in the facts and circumstances of the case and thus, this tantamounts to a direction which is not warranted in law. Criticism has 16 been advanced with regard to the direction in paragraph 19(v) which states that for persons who are ordinarily residing out of India, impounding of passports or issuance of Red Corner Notice should not be done in a routine manner. It is urged that if an accused does not join the investigation relating to matrimonial/family offence, the competent court can issue appropriate directions to the concerned authorities to issue Red Corner Notice which will depend on the facts of the case.
  4. Learned Amicus Curiae has further put forth that dispensation of personal appearance of outstation family members is unwarranted, for in a criminal proceeding, the competent court which deals with application of exemption should be allowed to exercise the judicial discretion and there should not have been a general direction by this Court. Certain suggestions have been given by the learned Amicus Curiae which we shall refer to at the relevant stage.
  5. To appreciate the controversy, it is necessary to understand the scope of Section 498-A of IPC. It reads thus:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 17 injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

  1. The said offence is a cognizable and non-bailable offence. This Court in Arnesh Kumar v. State of Bihar and another5 has observed that the said offence which is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. The Court has taken note of the statistics under “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A. Showing concern, the Court held that arrest brings humiliation, curtails freedom and casts scars forever and the police had not learnt its lesson which is implicit and embodied in the Criminal Procedure Code. Commenting on the police, the Court said:-

“It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the 5 (2014) 8 SCC 273 18 drastic power of arrest has been emphasised time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

  1. The Court, thereafter, has drawn a distinction between the power to arrest and justification for the exercise of it and analysed Section 41 CrPC. Section 41 stipulates when police may arrest without warrant. The said provision reads as follows:-

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

– (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable 20 suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”

  1. Scrutinising the said provision, the Court held as under:

“7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his 21 presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. x x x x x 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.”

  1. The learned Judges, thereafter, referred to Section 41-A CrPC which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said provision is to the following effect:-

“41-A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the 22 offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.” Explaining the said provision, it has been ruled:-

“9. …The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” The Court further went on to say that:-

“10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.

” The directions issued in the said case are worthy to note:-

“11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and 23 mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court

  1. The aforesaid decision, as is perceptible, is in accord with the legislative provision. The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper 24 implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from Joginder Kumar v. State of U.P and others :-

“20. … No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person‟s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.”

  1. Again, the Court in Joginder Kumar (supra), while voicing its concern regarding complaints of human rights pre and after arrest, observed thus:- “9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of 6 (1994) 4 SCC 260 25 deciding which comes first—the criminal or society, the law violator or the law abider….” 28. In D.K. Basu v. State of W.B.7 , after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and others8 and State of M.P. v. Shyamsunder Trivedi and others9 , the Court laid down certain guidelines and we think it appropriate to reproduce the same:-

“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the 7 (1997) 1 SCC 416 8 (1993) 2 SCC 746 9 (1995) 4 SCC 262 26 police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is

. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”

  1. In Lalita Kumari v. Government of Uttar Pradesh and others10 , the Constitution Bench, referring to various provisions of CrPC, adverted 10 (2014) 2 SCC 1 27 to the issue of conducting a preliminary enquiry. Eventually, the Court opined that the scope of preliminary enquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence and, thereafter, proceeded to state thus:- “120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”
  2. From the aforesaid, it is quite vivid that the Constitution Bench had suggested that preliminary enquiry may be held in matrimonial/family disputes. 31. In Rajesh Sharma (supra), as is noticeable, the Court had referred to authorities in Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:- “16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms 28 is sometimes unavoidable.11 Just and fair procedure being part of fundamental right to life,12 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 13 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
  3. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
  4. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.”
  5. After so stating, the directions have been issued which we have reproduced in paragraph 15 hereinabove.
  6. On a perusal of the aforesaid paragraphs, we find that the Court has taken recourse to fair procedure and workability of a provision so 11 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India : (2012) 10 SCC 603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para 47; Union of India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v. Sudhir Batham : (2012) 1 SCC 333 12 State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85 13 Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61 29 that there will be no unfairness and unreasonableness in implementation and for the said purpose, it has taken recourse to the path of interpretation. The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code. There can be no denial that there has to be just, fair and reasonable working of a provision. The legislature in its wisdom has made the offence under Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. The directions issued in Arnesh Kumar (supra) are in consonance with the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the Code and the power of superintendence of the authorities in the hierarchical system of the investigating agency. The purpose has been to see that the investigating agency does not abuse the power and arrest people at its whim and fancy.
  7. In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh (supra). In the said case, it has been held that:

– “61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:

(i) to secure the ends of justice, or

(ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim‟s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having 31 overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.”

  1. Though Rajesh Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it applied in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of India14 , Vishaka and others v. State of Rajasthan and others15 and Common Cause (A Registered Society) v. Union of India and another16 and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is 14 (1984) 2 SCC 244 15 (1997) 6 SCC 241 16 (2018) 5 SCC 1 32 erroneous.

However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought. 36. We have earlier stated that some of the directions issued in Rajesh Sharma (supra) have the potential to enter into the legislative field. A three-Judge Bench in Suresh Seth v. Commissioner, Indore Municipal Corporation and others17 ruled thus:

– “5. … In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. 17 (2005) 13 SCC 287 33 Union of India18 (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. …” 37. Another three-Judge Bench in Census Commissioner and others v. R. Krishnamurthy 19 , after referring to N.D. Jayal and another v. Union of India and others20 , Rustom Cavasjee Cooper v. Union of India21 , Premium Granites and another v. State of T.N. and others22 , M.P. Oil Extraction and another v. State of M.P. and others23 , State of Madhya Pradesh v. Narmada Bachao Andolan and another24 and State of Punjab and others v. Ram Lubhaya Bagga and others25 , opined:- “33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.” 18 (1989) 4 SCC 187 19 (2015) 2 SCC 796 20 (2004) 9 SCC 362 21 (1970) 1 SCC 248 22 (1994) 2 SCC 691 23 (1997) 7 SCC 592 24 (2011) 7 SCC 639 25 (1998) 4 SCC 117 34 38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.

  1. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.
  2. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
  3. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35
  4. With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs. …..………………………..

,CJI (Dipak Misra) …..…………………………..

,J (A.M. Khanwilkar) ..………………………….….,J

(Dr. D.Y. Chandrachud)

New Delhi; September 14 , 2018.

Without going into controversy as to whether the learned Metropolitan Magistrate was competent to grant bail under POCSO Act, it is to be noted that at the time of grant of bail, the Trial Court was of bonafide belief that respondent No.2 was booked by the Investigating Agency only for commission of offences under Sections 354/506/452 IPC. The counsel for the respondent No.2 had not revealed in the bail application if Sections 8/12 POCSO Act were also there in the FIR. Since respondent No.2 was in custody for the last two days and the statement of the prosecutrix had already been recorded under Section 164 Cr.P.C., the Trial Court deemed it fit to grant bail putting certain conditions. Perusal of the file reveals that even FIR (At page-41 ‘annexure P-7’) does not reflect if Sections 8/12 POCSO Act were mentioned at the relevant place in column No.2. In other copy of the said FIR (At page-30 ‘annexure P-4’) Sections 8/12 POCSO Act appear against column No. 2(ii). It is not clear as to how and when, these Sections came to be added in the original FIR. The discrepancy has remained un-explained.

The Court dealing with POCSO matters after considering the rival submissions of the parties did not find any ground to cancel the bail on merits. Apparently, Special Court dealing with POCSO matters has considered the merits of the case and did not find fault with the bail granted to the respondent No.2 on merits.

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New Amendment in POSCO Act.

The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously.

The maximum punishment is death penalty. In the cases of gangrape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.

In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such cases is life imprisonment. If a girl aged between 12 and 16 is gangraped, the convict faces minimum punishment of life sentence.

If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment.

Repeat offenders will be punished with life imprisonment or death.

The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months.

The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months.

Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 16 years of age.

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IN THE HIGH COURT OF DELHI AT NEW DELH

+                        CRL.M.C. 2372/2015

JAISHREE                                           ….. Petitioner

versus

STATE, GOVT. OF NCT OF DELHI & ANR.                ….. Respondents

CORAM:

HON’BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

  1. Instant petition under Section 482 Cr.P.C. has been preferred by the petitioner / complainant to challenge the legality and propriety of an order dated 25.02.2013 of learned Metropolitan Magistrate by which respondent No.2 was granted regular bail in case FIR No.63/13 registered under Sections 354/506/452 IPC and 8/12 POCSO Act. Petition is contested by respondent No.2.
  2. I have heard the learned counsel for the parties and have examined the file. FIR No.63/13 was registered at Police Station Burari under Sections 452/354/506 IPC and 8/12 POCSO Act on petitioner’s complaint on 22.02.2013. It led to respondent No.2’s arrest on 23.02.2013. A bail application was moved by his counsel before the learned Metropolitan Magistrate on 23.02.2013 which was taken up for hearing on 25.02.2013. On perusal of the bail application, it reveals that the counsel omitted to disclose registration of FIR under Sections 8/12 POCSO Act also. In the status report, the Investigating Officer, however, reported registration of FIR under Sections 8/12 POCSO Act. Though the IO W/SI Neeraj appeared in person at the time of consideration of bail application on 25.02.2013, she did not point out the omission of offences under POCSO Act in the bail application. Considering that the FIR was registered under the provisions of Indian Penal Code only, the Trial Court, by the impugned order, granted bail to respondent No.2 as he was in custody since 23.02.2013. Certain conditions were put at the time of grant of bail.
  3. Subsequently, application under Section 437 (5) Cr.P.C. was moved by the victim / complainant for cancellation of bail on 08.03.2013. It was disposed of after notice to the accused, his counsel and the Investigating Officer. It records assurance of the Investigating Officer to remain careful in future. The Trial Court was fair enough to record that there was an irregularity in passing the bail order which she was unable to rectify. Certain observations about the functioning of the IO / SHO were also made. The said order was challenged before Special Court. By an order dated 24.07.2013, the learned Addl. Sessions Judge dealing with POCSO matters declined to cancel the bail.
  4. Main grievance of the petitioner is that learned Metropolitan Magistrate had no jurisdiction to entertain and grant bail to respondent No.2 as offences under Sections 8/12 POCSO Act were exclusively triable by a Special Court. Reliance has been placed on ‘Ramrahit Singh vs. Dhananjoy Singh & Ors.’, MANU/WB/0218/2015, ‘Ramu Ram vs. State of Rajasthan & Ors.’, 2014(2)RLW 987 (Raj), ‘State of Andhra Pradesh vs. Mohd.Hussain @ Saleem’, 2014 (1) SCC 258, ‘State of Gujarat vs. Salimbhai Abdulgaffar Shaikh’, 2003 (8) SCC 50, ‘State of Tamil Nadu vs. Paramasiva Pandian’, 2002 (1) SCC 15 & ‘State of Bihar vs. Braj Nandan Raut’, 2001 Cri.L.J. 3678.
  5. Without going into controversy as to whether the learned Metropolitan Magistrate was competent to grant bail under POCSO Act, it is to be noted that at the time of grant of bail, the Trial Court was of bonafide belief that respondent No.2 was booked by the Investigating Agency only for commission of offences under Sections 354/506/452 IPC. The counsel for the respondent No.2 had not revealed in the bail application if Sections 8/12 POCSO Act were also there in the FIR. Since respondent No.2 was in custody for the last two days and the statement of the prosecutrix had already been recorded under Section 164 Cr.P.C., the Trial Court deemed it fit to grant bail putting certain conditions. Perusal of the file reveals that even FIR (At page-41 ‘annexure P-7’) does not reflect if Sections 8/12 POCSO Act were mentioned at the relevant place in column No.2. In other copy of the said FIR (At page-30 ‘annexure P-4’) Sections 8/12 POCSO Act appear against column No. 2(ii). It is not clear as to how and when, these Sections came to be added in the original FIR. The discrepancy has remained un-explained.
  6. Besides it, the Court dealing with POCSO matters after considering the rival submissions of the parties did not find any ground to cancel the bail on merits. Apparently, Special Court dealing with POCSO matters has considered the merits of the case and did not find fault with the bail granted to the respondent No.2 on merits.
  7. Considering the peculiar facts and circumstances of the case whereby due to bonafide mistake, bail was granted by the Trial Court and the fact that the said order was upheld by the Special Court, no sound reasons exist to cancel bail specifically when the investigation is over and charge-sheet has already been filed before the Special Court.
  8. The petition lacks merit and is dismissed. Trial Court record (if any) be sent back forthwith with the copy of the order.

 

(S.P.GARG) JUDGE