Mohanan vs State of Kerala

G. Sasidharan, J.—The question which arises for consideration is whether this Court has the power to grant bail to the persons who are arrested by the police on the accusation of having committed the offence under the Kerala Essential Services Maintenance Act (for short "the Act"). Petitioners were arrested by the police alleging commission of the offence under Sections 4 and 5 of the Act and when they were produced in Court, they were remanded to judicial custody. Section 6 of the Act says that any police officer may arrest without warrant any person who is reasonably suspected of having committed any offence under the Act and such person shall not be granted bail by a police officer or a court. It is not disputed that the petitioner are persons working in the departments which have been declared by the Government as essential services. a plain reading of the section would go to show that any police officer may arrest without warrant any person who is reasonably suspected of having committed any offence under the Act. Once a person is arrested, bail should not be granted either by the police officer or by the court is the other provision in the section. The submission made by the learned counsel for the petitioners is that in spite of the fact that there is such a provisions in the Act, this Court has the power to entertain an application for bail and take a decision as to whether bail has to be granted in the light of what is said in Section 439 Cr. P.C. Sri. Vijayabhanu, learned counsel appearing for the petitioner in Crl.M.C. 1356 of 2002 argued that even though in the petition it is stated that it is one filed u/s 439 Cr.P.C., what the petitioner wants is bail and hence the question whether the petitioner is entitled to get bail under other provisions of law including Article 226 of the Constitution of India can be considered by this Court.

O.P. 4727 of 2002 was filed in this Court raising the question as to whether the provisions of Section 6 of the Act which rule out the power of the court to grant bail are unconstitutional inasmuch as those provisions infringe the fundamental rights guaranteed to the citizens under Articles 14, 19, 21 and 22 of the Constitution. An interim relief was sought for staying the operation of Section 6 of the Act and on 12.2.2002, a Division Bench of this Court made an order finding that the relief of staying the operation of the Section cannot be granted. In the order it is stated that a statute cannot infringe the power of this Court under Article 226 which now has been held to be part of the basic feature of the Constitution in this country. The further observation made is that as and when somebody approaches this Court in its writ jurisdiction, the issue of bail may be considered in the light of the facts and circumstances of the case. In the light of the above observations in the order of the Division Bench, the submission made is that even though the application says that it is filed u/s 439 Cr.P.C., this Court has to consider the question whether bail application can be entertained and order can be made also in exercise of the power u/s 482 Cr.P.C. or under Article 226 of the Constitution. In support of the above submission, the learned counsel cited the decision in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, . That was case in which petition was filed for quashing criminal proceeding u/s 482 Cr.P.C. and the Supreme Court said that nomenclature under which petition is filed is not quite relevant and in view of the relief prayed for in the petition, the court can consider whether the relief of quashing criminal proceedings can be granted in exercise of the power under Articles 226 and 227 or Section 482 Cr.P.C. So this Court according to the learned counsel for the petitioner in Crl.M.C. 1356 of 2002 Sri. Vijayabhanu has to consider the question whether this Court can entertain the application for granting bail and pass orders by invoking the powers under Sections 439 and 482 Cr.P.C. and also under Articles 226 and 227 of the Constitution of India. The Division Bench as stated earlier has considered this question and made it clear that the court can even consider the question of entertaining the application for bail under Article 226 of the Constitution of India. In the light of the above observation, this Court will be justified in considering the question of granting bail in the light of the above submission made by the learned counsel for the petitioner.

Section 439 Cr.P.C. deals with the special power of the Sessions Court and the High Court to grant bail. It is in Section 436 Cr.P.C., the power of the Court to grant bail when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court is dealt with. Section 437 Cr.P.C. provides that when any person accused of or suspected of the commission of any non-bailable is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, the Court can grant bail following the procedure mentioned in the other sub-clauses of the section. u/s 437 Cr.P.C. the High Court or the Court of Session is not having the power to grant bail. In Section 439 special power is given to the High Court or the Court of Session regarding bail. The heading of the Section is "Special powers of High Court or Court of Session regarding bail". As per that section the High Court or the Court of Session has the power to grant bail to nay person accused of an offence and in custody. That special power is in respect of the offence whether it is bailable or non-bailable. The submission made is that, that special power to the High Court u/s 439 Cr.P.C. is in any way restricted u/s 6 of the Act. There is no provision in the Act which says that the provisions of the Cr.P.C. are not applicable to the arrest under the Act. Section 6 of the Act also does not say that notwithstanding what is said in Section 439 Cr.P.C., the Court will not have the power to grant bail. There is no non-obstante clause as pointed out by the learned counsel fort the petitioner which says that in spite of the fact that the High Court has the power to grant bail u/s 439 Cr.P.C., the High Court will not be having power to grant bail when a person is arrested on the accusation of having committed the offence punishable under the Act.

Relying on the decision in M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, it was maintained by the learned counsel Sri. Vijayabhanu that the High Courts in Indian are superior courts of record and they have original and appellate jurisdiction and the jurisdiction of the High Court is unlimited including the jurisdiction to determine their own powers. The Supreme Court said that the High Courts in Indian are superior courts of record and they have original and appellate jurisdiction and that they have inherent and plenary powers. The Supreme Court went on to say that unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers.

The learned Advocate General pointed out Section 4 of the Code of Criminal Procedure which says that all offence under the Indian Penal Code and all offence under any other law shall be investigated, inquired into and tried by the Courts. Section 4(2) Cr.P.C. says that all offence under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence. Section 5 of the Act says that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by an other law for the time being in force. The Submission made by the learned Advocate General is that it is open to the Stat Legislature to make law providing special procedure in respect of offence made in special or local law. Section 4(2) of the Code says that when a special Act contains penal provisions the offence under that Act will be investigated, inquired into, tried and otherwise dealt with according to the provisions in the Criminal Procedure Code. When special procedure is prescribed by the special law, the position will be different and the offence under the Special Act will be dealt with as per the procedure under the Act. Section 5 does not say anything against what is said in Section 4(2). Section 5 sayes any special or local law for the time being in force and says that those laws may remain unaffected by the Code unless there is nay specific provision to the contrary. Along with this the question what would be the position when a provision in a statute made by the Legislature is inconstituent with the provision in a statute made by the Parliament on the same subject has to be taken into account.

Article 254 of the Constitution provides that if any provision of a law made by the Legislature of a Stat is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to nay provision of an existing law with respect to one of the matters enumerated int he Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Article 254(2) says that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Here the law made by the Parliament and the law made by the State Legislature relate to a subject matter specified in the Concurrent List. It is submitted that the Act was not reserved for the consideration of the President and it did not receive the assent of the President. That being the position, if there is nay provision in the Act which is repugnant to the provisions of Cr.P.C., the provisions of Cr.P.C. will prevail.

The power of this Court to grant bail u/s 439 Cr.P.C. is not in respect of the offence mentioned in the Indian Penal Code alone. What is said in Section 439 is that the High Court or the Court of Session may direct that any person accused of an offence and is in custody be released on bail in exercise of the powers under the Section. What is an offence is defined in the Cr.P.C. Section 2(n) says that "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made u/s 20 of the Cattle-trespass Act. So, in respect of an offence under the provisions of a special or local law also the High Court has the power u/s 439 of the Code to entertain application for bail and also to take decision on the application.

Then the question to be considered is whether there is any provision in the Act which would have the effect of restricting the right of this Court in entertaining application for bail and taking decision on that application. As stated earlier, the provision in the act which says that a person arrested on the accusation of having committed offence under the Act should not be released n bail is against what is said in Section 439 Cr.P.C. and on that repugnancy Section 439 Cr.P.C. has to prevail.

Learned counsel for the petitioner in Crl.M.C. 1372 of 2002, Sri, Mathew Zachariah advanced the argument that enforcing the provisions of the Act and also detaining persons in prison without granting bail alleging that they committed the offence under the provisions of the Act is against what is said in Article 23 of Constitution of India. In the decision reported in People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, the Supreme Court observed that when the Constitution makers enacted Article 23 they had before them Article 4 of the Universal Declaration of Human Rights but they deliberately departed form its language and employed words which would make the reach and content of Article 23 much wider than that of Article 4 of the Universal Declaration of Human Rights. Dealing with the term "begar" used in the above Article, the Supreme Court said that it is very difficult to formulate a precise definition of the word "begar" but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. The Supreme Court went on to observe that Molesworth describes "begar" as labour or service exacted by a Government or person in power without giving remuneration for it. In respect of Article 23 of the Constitution, the observation made by the Supreme Court is that Article 23 is intended to abolish every form of forced labour and the words "other similar forms of forced labour" used in Article 23 would take in forced labour by giving remuneration. The object of adding the above words "every form of forced labour" according to the Supreme Court was clearly to expand the reach and content of Article 23 by including in addition to "begar", other forms of forced labour within the prohibition of that Article. The Supreme Court went to the extent of saying that every form of forced labour, "begar" or otherwise is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not. Forced labour even if remuneration is given, according to the Supreme Court, would clearly amount to forced labour which is prohibited under Article 23 of the Constitution of India. On the basis of the observations in the above decisions of the Supreme Court what the counsel would submit is that by making provisions in the Act for taking cases for offence mentioned in the Act and detaining them without granting bail to them is forcing them to do labour which is prohibited under Article 23 of the Constitution of India. The learned Advocate General would submit that the State Legislature has power to make restrictions on granting of bail in respect of an offence under any special or local law. The restrictions which is now made is not on imposing additional conditions or requirements for granting bail. The restriction made is total prohibition of granting bail to the persons who are alleged to have committed the offence under the Act by Court.

The decision in Narcotics Control Bureau Vs. Kishan Lal and others, , was cited by the learned Advocate General. That was case in which the Supreme Court was considering about the limitations made in Section 37 of the N.D.P.S. Act. The Supreme Court observed that the powers of the High Court to grant bail u/s 439 Cr.P.C. are subject to the limitations contained in the amended Section 37 of the N.D.P.S. Act. In the above decision, reference is made to two other decisions of the Supreme Court, one, Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, , and the other Balchand Jain v. State of Madhya Pradesh AIR 1977 SC 366. That was not case in which the power of the High Court to grant bail was taken away. In the above cases, Section 37 of the N.D.P.S Act said that when the Public Prosecutor opposes granting of bail to a person who is alleged to have committed the offence under certain provisions of the Act, bail can he granted by the Court only if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence or that he is not likely to commit any offence while on bail. That provision did not take away the right of the High Court to grant bail u/s 439 Cr.P.C. and the Supreme Court said that the restrictions placed on the powers of the Court u/s 37 of the N.D.P.S. Act are applicable to the High Court also. Here, the position is different and what the State Legislature did is to say that a Court shall not grant bail when the offence alleged to have committed by the accused is under the provisions of the Act.

Bailable offence as defined in Section 2(a) means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force. Non-bailable offence is nay offence other that the offence shown as bailable in the Fist Schedule or which is made bailable by any the law for the time being in force. When it is said that an offence is non-bailable it does not mean that a person who commits an non-bailable offence in not entitle to get bail. Section 437 of the Cr.P.C. deals with granting of bail in a non-bailable offence. The heading of Section 6 of the Act is that offence to tb cognizable and non-bailable. That means offence under Sections 4 and 5 are cognizable and at the same time those offence are non-bailable. The term "cognizable" used in the heading of Section 6 has to be understood with reference to the definition of cognizable offence given in Cr.P.C. Similarly the term "non-bailable" appearing in the heading of the Section should also be understood in the light of the definition of non-bailable offence mentioned int he Cr.P.C. It is true that in the body of the Section it is said that a Court should not grant bail to a person arrested on the accusation of having committed the offence under the Act. So, what is said in the body of the Section is not that it is non-bailable but it is an offence for which no bail at all can be granted by the Court.

Article 21 of the Constitution says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Procedure established by law should not be arbitrary, unfair or unreasonable. Here, detention of a person who is arrested alleging commission of the offence under the Act is for an indefinite period. The police officer who makes the arrest under the provisions of the Act does not know how far the person arrested has to be in jail. The Court in which such a person arrested is produced and remands to judicial custody is also not in a position to say how far that person has to be in jail because the provision is that the Court should not grant bail. The Government also do not know when such an arrested person will be sent out of jail. The maximum sentence which can be given even if a person arrested on the accusation of having committed the offence under the Act is found to be guilty is six months. It is true that Section 7 says that all offence under the Act shall be tried in a summary way by any Judicial Magistrate of the First Class specially empowered in this behalf by the Government. Even though that is the provision, it cannot be said that there will not be any case in which the trial will prolong for a period beyond six months. Even in such cases, the Magistrate or any other Court will not be able to grant bail after the accused being in jail for a period of six months if Section 6 is interpreted as one by which the power of all Courts for granting bail is taken away. Taking into consideration the above facts and circumstances of the case, I find that this Court has the power to entertain and take decision in an application for bail filed by persons who are alleged to have committed the offence punishable under the Act.

The petitioner in Crl.M.C. 1356 of 2002 is accused in Crime 36 of 2002 of Thrissur town west police station. He was arrested on 12.2.2002 in connection with the above crime. The allegation against him is that he committed the offence punishable u/s 4 of the Act. The petitioners in Crl.M.C. 1372 of 2002 are accused in Crime 116 of 2002 of Central Police Station, Ernakulam. The allegation against them is that they committed the offence punishable under Sections 447 and 506(1) read with Section 34 IPC and Sections 4 and 5 of the Act. They were arrested on 12.2.2002.

Petitioner in Crl.M.C. 1356 of 2002 will be released on bail on his executing bond for a sum of Rs. 25,000/- with two solvent sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Thrissur.

Petitioners in Crl. M.C. 1372 of 2002 will be released on bail on their executing bond for a sum of Rs. 25.000/- each with two solvent sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Ernakulam.

Petitioners in both the petitions are directed not to cause obstruction to the employees who are attending office.