State of Haryana vs Chaudhry Ram Vohra

Harmohinder Kaur Sandhu, J.

Offence under Section 332/120P of the Indian Penal Code and under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 was registered against Chaudhry Ram and others. Chaudhry Ram filed an application under Section 439 of the Code of Criminal Procedure for his release on bail which was heard by Shri Suresh Chand Jain, Additional Sessions Judge, Panipat. It was found by that court that as no countrymade pistol or cartridge had been recovered from Chaudhry Ram, a prima facie case under section 25 of the Arms Act punishable under Section 5 of the Terrorist &Disruptive Activities (Prevention) Act, 1987 was not made out against him. He was thus ordered to be released on bail on his furnishing bail bonds in the sum of Rs. 25,000/ with one surety in the like amount to the satisfaction of Ilaqa/Duty Magistrate vide order dated June 19, 1992. The present petition has been filed by State of Haryana under Section 439 (2) of the Code of Criminal Procedure praying for cancellation of bail of the accusedrespondent.

It was averred in the petition that as the case was registered under Section 302 of the Indian Penal Code and under Section 25 of the Arms Act read with Section 5 of the Terrorist & Disruptive Activities (Prevention) Act, 1987, the Additional Sessions Judge could not take cognizance of the bail application which could be decided only by the Designated Court. Chaudhry Ram accused was the main author of the crime and he was consistently in search of an opportunity to get Pritam Lal murdered. He engaged Ranbir accused for this purpose on payment and Ranbir got Pritam Lal murdered through his accomplice Jagdish. After commission of murder of Pritam Lal, Joginder Pal complainant and other members of his family received telephonic warnings at their residence in Delhi regarding which reports were made at Police Station at Delhi. It was probable that Chaudhry Ram may tamper with the evidence or may even resolve to eliminate the prosecution witnesses.

In the return filed by the respondent, it was pleaded that the petition under Section 439(2) of the Code of Criminal Procedure was malafide and was filed with extraneous considerations without there being any basis for the same. The respondent was being framed up time and again by his own son Om Parkash and Joginder Pal brotherinlaw of his son who wanted to grab property worth more than fifty lacs. The order granting bail passed by learned Additional Sessions Judge, Panipat was perfectly legal and valid and was based on correct appreciation of facts and law. The respondent was sought to be involved in the case on the strength of Section 120B of the Indian Penal Code and the Additional Sessions Judge Panipat had rightly found that no prima facie case under Terrorist & Disruptive Activities (prevention) Act was made out against the respondent. It was only after judicial scrutiny and taking into consideration the law that bail was granted. This fact was denied that any telephonic warning was given to the complainant or any other member of his family and it was contended that these allegations were made with malafide intention of prejudicing the court against the respondent.

I have heard Mr. S. C. Sethi, Additional Advocate General Haryana for the petitioner and Mr. R. S, Cheema, Senior Advocate with Mr. Narula, Advocate counsel for the respondentaccused.

The main contention of the learned counsel for the petitioner was that as the case against the respondent was under Section 5 of the Terrorist & Disruptive Activities (Prevention) Act, the Additional Sessions Judge, Panipat could not take cognizance of the bail application and bail application could be decided only by a Designated Court. It was urged that the whole of the State of Haryana had been declared as notified area under the Terrorist and Disruptive Activities (Prevention) Act, 1985 which enures with the present Act of 1987 and when the case is registered under Section 25 of the Arms Act read with Section 5 of the Terrorists and Disruptive Activities (Prevention) Act,, then it is exclusively triable by the Designated Court and the application for bail also lies to the Designated Court. The order granting bail passed by the Additional Sessions Judge Panipat was liable to be cancelled on this score alone. In support of his contention the learned counsel referred to the case of Rattan Singh v. State of Haryana, 1991 Criminal Law Journal 724. In this case the accused was found in possession of a country made pistol and the case was registered against him under Section 25 of the Arms Act. The learned Chief Judicial Magistrate, Ambala rejected his petition for bail vide order dated 18111939 on the ground that the facts constituted an offence under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 which was exclusively triable by the Designated Court. It was held that where the case is exclusively triable by the Designated Court, the application, for bail lies to that court in view of the law laid down by the apex court in Usman Memon v. State of Gujarat, AIR 1988 SC 922 and thus the petition was dismissed.

It was argued on behalf of the respondent that if the application for bail could not be taken cognizance of by the learned Additional Sessions Judge, Panipat then this application for cancellation of bail was also not maintainable in this court and was liable to dismissal on this short ground. He too placed reliance on the case of Usmanbhai Dawoodbhai Memon (supra) wherein it was held.

"Where a person accused of an offence under Sections 3/4 of the Act is held in custody, the High Court has no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal Procedure." It was further observed in this case :

"The Act being a special Act prevails in respect of the jurisdiction and power of the High Court to entertain an application for bail under Section 439 of the Code or by recourse to its inherent powers under section 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 or an accusation (accused) of having committed an offence punishable under the Act or any rule made thereunder. The Legislature by enacting the law has treated terrorism as a special criminal problem and created special court called a Designated Court to deal with the special problem and provide for a special procedure for the trial of such offences."

In view of the observations of the apex Court referred to above I find that the submission advanced by the learned counsel for the respondent is well merited. When the application for grant of bail under Section 439 of the Code of Criminal Procedure, could not be dealt with by the learned Additional Sessions Judge, then the application under Section 439 (2) of the Code of Criminal Procedure was also not maintainable in this court as there was complete exclusion of the jurisdiction of the High Court with respect to the matter involving arrest of any person in a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. The petition is, therefore, dismissed on the ground that it is not maintainable.