Malkiat Singh vs State of Punjab

Ujagar Singh, J.

The petitioner is accused of offences u/ss 302/307 34/120B of the Indian Penal Code and sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (the Act in short), vide FIR No. 61 dated 441986 of Police Station Khanna. His name is not mentioned in the FIR, but, according to the prosecution, he was one of the persons described as under

"i) One of them was aged about 20/21 years, 6 tall with a strong built.

ii) wheatish complexion, having small beard, about 57" in height and with a strong built. The second one had a sallow complexion aged about 23/24 years, 6 tall With a strong built.

iii) The third was aged about 22 years, of a strong built with height of 56" having flowing beard and of wheatish complexion.

As a result of the assault, some persons were injured, and out of them, Mohinder Pal, Pawan Kumar and Subhash Kumar died due to firearm injuries.

The petitioner applied for bail to the Designated Court at Patiala and vide order dated 2241986, his application for bail was declined. Aggrieved with the order of rejection of bail, he filed Criminal Miscellaneous 6103M/1987 which was also declined vide my order dated 24111987.

The name of the petitioner is mentioned by two eyewitnesses, Madan Lal and Ram Sarup in their statements u/s 161 of the Code of Criminal Procedure recorded on 541986. One Ranjit Singh coaccused of the petitioner applied for bail before the Designated Court and he was allowed bail vide order dated 921987. Shri Bindra, learned counsel for the petitioner urges that at the time of earlier order of rejectionof bail application of the petitioner by this Court, the grounds on which his coaccused Ranjit Singh was allowed bail were not known to him. He makes a reference to the following portions of the order of the Designated Court, granting bail to his coaccused Ranjit Singh :

"In so far as the main occurrence is concerned Ranjit Singh accused was not know to be present at the time of the occurrence and he did not participate in the occurrence resulting in the killing of three persons and injuries to others. There is nothing to show that he entered into any conspiracy. The Jeep inquestion has not been shown to have been used in the commission of the crime. He was arrested on July 15, 1986 and has been in custody for the last more than six months. In so far as the applicant is concerned there is nothing whatsoever to show the commission of the offence punishable under Section 3/4 of the Terrorist & Disruptive Activities (Prevention) Act. He is the eldest male member of the family and the marriage of his sister is scheduled to be solemnised on February 16, 1987, a fact which has been confirmed by the learned Addl. P.P. for the State from the Police Station concerned and there is nothing whatsoever to show that the accused is likely to commit any offence if released on bail."

On the basis or the above reasoning, the learned counsel for the petitioner urges that, as a matter of fact, the Designated Court has already found qua one of the coaccused of the petitioner that no offence u/ss 3/4 of the Act is made out and one ground for saying so is that the name of that accused was not mentioned in the FIR and that the case of the petitioner is not distinguishable from that of his coaccused. On the other hand, the learned counsel for the State has urged that this Court has no jurisdiction to grant bail to persons who are accused of offences punishable u/ss 3/4 of the Act. He has cited Usmanbhai Dawoodbhai Menon & ors., v. State of Gujarat, 1988(1) SVLR (CR) 157 : 1988(1) Recent Criminal Reports 540.

I have considered the arguments of the learned counsel and the facts of the case. Their Lordships of the Supreme Court have laid down as under :

"As a matter of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under S. 439 of the Code or by recourse to its inherent powers under S. 482. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder. Theft is contrariety between the provisions of the Act and those contained in the Code. Under the Code, the High Court is invested with various functions and duties in relation to any judgment or order passed by criminal Court subordinate to it. Those powers may be briefly enumerated, namely, the jurisdiction and Power to hear an appeal under S. 374 against any judgment or sentence passed by the Court of Session, the power to hear an appeal against an order of acquittal by a criminal Court including the Court of Session under S. 378, the power to hear a reference as to the validity of any Act, ordinance or regulation or any provision contained therein made by a criminal Court under section 395, the confirmation of a death sentence on a reference by a Court of Session under Ss. 366371 and S. 392, the power to grant bail under S. 439 to make such orders as may be necessary or to prevent abuse of the process of the court or otherewise to secure the ends of justice. Undoubtedly, the High Court has the jurisdiction and power to pass such orders as the ends of justice require, in relation to proceedings before all criminal Court subordinate to it.

The Legislature by enacting the law has treated terrorism as a special criminal problem and created a special Court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. A grievance was made before us that the State Government by notification issued under Section 9(1) of the Act has appointed District & Sessions Judges as well as Additional District & Sessions Judges to be Judges of such Designated Courts in the State. The use of ordinary Courts does not necessarily imply the use of standard procedures. Just as the Legislature can, creat a special Court to deal with a special problem, it can also create new procedure within the existing system. Parliament in its wisdom has adopted the framework of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Ss. 3(1) and 4(2) and provides for a special procedure for the trial of such offences. Under S. 9(1), the Central Government or a State Government may by notification published in the Official Gazette constitute one or more Designated Courts for the trial of offence under the Act for such area or areas, or for such case or class or group of cases as may be specified in the notification. The jurisdiction and power of a designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us. Under Section 14(1), a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of S. 12(1) may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code."

This is further fortified by. the observations in that case by holding that the manifest intention of the Legislature is to take away the jurisdiction and power of the High Court under the Code with respect to the offences under the Code and that no other construction is possible. A reading of the provisions of the Code also indicates that it is Designated Court which is to decide the bail application, keeping in view the restrictions imposed thereon. The argument of the learned counsel for the petitioner is that the Designated Court has already given a finding qua the other accused that there is nothing whatsoever to show the commission of the offence punishable uss 3/4 of the Act, therefore, this Court has the jurisdiction to decide this bail application. After holding that the High Court has no jurisdiction in Usmanbhai Dawobdbhai Menon''s case (supra), it has been specifically observed that the Designated Court has not carefully considered the facts and circumstances and has rejected the application for bail mechanically and the Designated Courts were under a duty to examine the circumstances closely from this angle and the same has not been done, it was found desirable therein to set aside the orders passed by the Designated Court and remit the cases for fresh consideration.

In this case also, in view of the bail order granted to Ranjit Singh coaccused of the petitioner, the bail application when moved by the petitioner before the Designated Court, it will take into consideration its observations quoted above qua Ranjit Singh''s bail application.

In this view of the matter, this bail application is dismissed on the ground that this Court has no jurisdiction and the case is sent back to the Designated Court to consider the merits of the case in detail, as directed by their Lordships of the Supreme Court.