Ram Sewak and Others vs State of U.P.

K. Narayan, J.—This is an application for bail by Ram Sewak, Kalloo, Satish and Ghanshyam said to be involved in a case u/s 392 Indian Penal Code and 2(B), 10/12 D.A. Act registered at crime No. 107 of 1994, P.S. Kulpahad, district Hamirpur.

It appears from the copy of the order dated 23.11.94 rendered by the Special Judge D.A.A. Act, rejecting the bail of the applicants as he had been led by the idea that the accused-applicants could not be granted bail before 180 days unless it could be concluded that there was no case made out against them. I find myself unable to agree with this impression of the learned Judge and it seems to be in disregard to the law laid already down by this Court in the case of Kamal Singh v. State of U.P., reported in 1990 (27) ACC page 228. in this case, it has been specifically laid down that the Proviso to Section 10 of the D.A.A. Act does not say that bail cannot be granted within 180 days and also that on the other hand the Proviso states that after the expiry of 180 days the Court may release the accused on such conditions as it deems fit.

I need not record, as I am duty bound, to say that I am in full agreement with the above said decision of this Court. I can only add a few more impressions in support of the said conclusion referred in the above noted case.

Section 10 of the U.P.D.A.A. Act, 1983 (hereinafter called the Act provides certain exceptions to the general rule of bail etc. enshrined in the provisions of the Code of Criminal Procedure, 1973. There can be no doubt that a special law is bound to prevail over the general law and this principle is not to be lost sight of while interpreting the provisions of the special law. In fact, by making a provision for notwithstanding the provisions of a general law, an exception is created and naturally that exception cannot be properly appreciated without first caring for the basic principle contained in the general law. The spirit of Section 10. When it is read as a whole, is indicative of the fact that the provisions of Section 167, Code of Criminal Procedure are to be given a qualified application with due regard to Section 10 of the Act. Sub-clause (a) of this Section 10 is already contained in the section relating to bail in the Code of Criminal Procedure itself and it is common principle that the bail matters are not to be decided unless the prosecution has been given the opportunity to oppose the application for bail. Sub-clause (b) of the said section provides a special situation to be considered while granting the bail. It is in the nature of saying that not only of prima facie case, such other factors are also to be taken into account by the Court granting the bail and before granting the bail the satisfaction of the Court should be that there are reasonable grounds for believing that the applicant is not guilty of such offence. These are two provisions laying down the procedure and method for appreciation of the bail applications. Both these are, in addition to and go along with the provisions of the Code of Criminal Procedure relating to bail, and are to be considered subject to the proviso which reads as under:

Provided that an accused of a scheduled offence, who has been in custody for a total period of 180 days may be released on bail, subject to such conditions as the Court may think fit to impose.

This proviso has an exception to the direction contained by way of Clauses (a) and (b), though ordinarily principle may be that a person is not to be admitted to bail unless it is considered that there are reasonable grounds for believing that he is not guilty of such offence, if he has been under detention for a period of 180 days, the bail may be considered and allowed subject to the conditions as the Court may deem fit and proper to impose. The impression taken by the Judge that bail cannot be considered before the expiry of 180 days, is totally unwarranted by the contents of the section and the place of the proviso therein.

In view of the above reasons and in deference to the law laid down in the above said case, the applicants have been obviously refused bail with improper considerations and should be admitted to bail.

The applicants Ram Sewak, Kalloo, Satish and Ghanshyam shall be admitted to bail on furnishing two sureties each and a personal bond to the satisfaction of the Special Judge, D.A.A. Act, Hamirpur in the matter of case crime No. 107 of 1994, u/s 392 Indian Penal Code and 2(B), 10/12 D.A.A. Act. P.S. Kulpahad, district Hamirpur.