State of Himachal Pradesh vs Ishwar Chand

D.B. Lal, J.—This is a petition under Article 134(1)(c) of the constitution for a certificate of fitness for appeal to Supreme Court. The facts giving rise to the petition may briefly be stated.

The Respondent Ishwar Chand is a member of a partnership firm Mahabir Trading Company carrying on business in foodgrains at Solan. A surprise raid was made at their business premises on July 8, 1975, and the police recovered from their go downs a stock of rice and salt in contravention of the Himachal Pradesh Commodities Price Marketing and Display Order. A case was registered against Ishwar Chand under the Defence and Internal Security of India Rules, 1971. While that case was pending the Respondent applied for anticipatory bail u/s 438 of the Code of Criminal Procedure. A question, inter alia, arose as to whether the High Court retains jurisdiction to grant anticipatory bail u/s 438 of the Code of Criminal Procedure in view of Section 12 of the Defence and Internal Security of India Act, 1971, because special tribunals have been set up to try such offences. As the question involved a point of law of sufficient importance it was referred to a Full Bench for decision. The Full Bench gave its opinion on 22-8-1975 and chose to decide only the law point involved and precluded from deciding on merit the individual application for anticipatory bail submitted by Ishwar Chand. The decision of the Full Bench was that the High Court retains power and jurisdiction to grant or refuse bail u/s 438 of the Code of Criminal procedure. Thereafter the Full Bench referred the particular case of Ishwar Chand to a single Judge for consideration if anticipatory bail could be granted to him. According to the decision of the learned single Judge anticipatory bail u/s 438 was granted to Ishwar Chand. Against that decision of the learned single Judge the present application is directed for leave to appeal to Supreme Court.

It may be stated that the Petitioner state moved a similar petition before the Full Bench which was S.C.A. No. 10 of 1975 for leave to appeal to Supreme Court, against the opinion expressed by the Full Bench. But the petition was dismissed on 12-11-1975 and it was held that the Full Bench had given an opinion and the ultimate decision rested with the single Judge and hence the opinion expressed by the Full Bench could neither be a Judgment nor a final order within the meaning of Article 134 so that a certificate of fitness could be granted for appeal to Supreme Court. Thereafter the learned Advocate General filed the present petition which is directed against the order of the learned single Judge granting bail to Ishwar Chand Respondent.

A preliminary objection is at once raised on behalf of Ishwar Chand Respondent that the order of the learned single Judge can neither be a Judgment nor a final order nor a sentence in a criminal proceeding before the High Court and as such the petition itself is not maintainable under Article 134. It is manifest the learned single Judge while deciding the bail application followed the opinion expressed by the Full Bench, and considering that he had jurisdiction to grant bail, decided the application on merit considering the facts of the prosecution case and as such the order was made granting anticipatory bail. The learned Advocate General wants to agitate the question relating to jurisdiction, and according to him there is no decision of the Supreme Court on this controversy before the High Court. It is rather a decision by the High Court on its first impression, and the question involved is of prime importance, which is also of general application. It cannot be denied that the question of law involved is of first impression and there is no decision of the Supreme Court settling the controversy that arises. The importance of the question can in no way be under estimated, as it deals with the application of Section 12 of the Defence and Internal Security of India Act, 1971, inasmuch as according to State the High Court is prohibited to exercise any jurisdiction of any kind in respect of a proceeding before a special tribunal. This may or may not cover the jurisdiction of the High Court to grant or refuse an application for anticipatory bail which decidedly refers to a proceeding before the special tribunal.

The learned Counsel for the Respondent relied upon a string of cases which refer to a case relating to bail simplicitor, as to whether bail on merit was rightly or wrongly granted in a particular case. It was held that the order was interlocutory and not a final order nor a Judgment within the meaning of Article 134 and as such a certificate of fitness for appeal could not be granted. I am not dealing in the present case with a matter relating to bail simplicitor, as to whether on merit the bail was rightly or wrongly granted to Ishwar Chand. The question involved is of jurisdiction of the High Court to grant or refuse bail u/s 438 of the Code of Criminal Procedure. The cases relied upon by the Respondent are: Nijam Mohideen and Ors. AIR 1960 Mad 76 ; Sawal Ram Goenka and Another Vs. The State, ; Dhola and Ors. v. The State 1975 C L J 1274 and Joginder Singh etc. v. State of Himachal Pradesh I.L.R.1975 (H.P.) 181 , In my opinion, these cases will not be of any assistance to the learned Counsel. It may be correct that the order of bail itself is an interlocutory order and is neither a Judgment nor a final order to invoke Article 134. But in none of these cases the question regarding inherent lack of jurisdiction in the Court was raised or decided, as has been done in the present case. The learned Counsel then relied on AIR 1949 15 (Federal Court) and took assistance from the observations of the learned Judges wherein they held that the expression "judgment" in Section 205 of the Government of India Act, 1935, which is in pari meteria similar to Article 134 of the Constitution, means a Judgment which leads to termination of the case by an order of conviction or acquittal of the accused and the expression "final order" signifies that the order finally determines the points in dispute and brings the case to an end. With respects to their Lordships, in that case, again the controversy related to an order made by the Court with reference to Section 197 of the Code of Criminal Procedure, 1898, wherein it was decided if proper sanction under that provision for prosecution of a public servant was taken so as to enable cognizance by the criminal Court. Again the question never related to the inherent lack of jurisdiction in the Court to hear and decide the proceeding before the Court. Therefore, in my opinion, S. Kuppuswami Rao (supra) will not be of any assistance to the Respondent.

It is abundantly clear that the opinion of the Full Bench which had a direct bearing upon the order made by the learned single Judge, was made subject-matter of S.C.A. No. 10 of 1975 and the Full Bench was asked to give a certificate under Article 134, but it refused to do so on the ground that a request for that certificate could be made before the learned single Judge as the Full Bench only expressed an opinion and did not decide the dispute regarding bail. Now when the State comes before the learned single Judge for a certificate of fitness because the opinion of the Full Bench decidedly raised an important question of law of general importance which needs settlement by the Supreme Court, an objection is again taken that the order of the learned single Judge being an interlocutory order cannot be agitated before the Supreme Court and Article 134 will stand in the way. The question regarding jurisdiction was finally decided by the Full Bench and jurisdiction is conferred upon the High Court to grant or refuse bail u/s 438 of the Code of Criminal Procedure. In every case where a criminal proceeding is pending before the special Tribunal that question is finally decided and to that extent is a final order made by the High Court in a criminal proceeding. There can be no doubt that the bail matter was a criminal proceeding before the High Court and a final order regarding jurisdiction has been given by the High Court, which confers jurisdiction upon the High Court in all cases where applications for bail under Sections 438 and 439 are given to High Court in criminal cases which are pending before the Special Tribunal. To that extent the order is decidedly a final order in a criminal proceeding before the High Court. Under Article 132 explanation, the expression "final order" includes an order deciding an issue which if decided in favour of the Appellant would be sufficient for the final disposal of the case. It is not difficult to hold that if the question regarding jurisdiction is decided in favour of the Appellant and the High Court is ousted from its power to grant or refuse bail under Sections 438 and 439, it would lead to the final disposal of the case regarding bail and the application is bound to be dismissed for want of jurisdiction.

In this view of the matter I am of the opinion that it is a fit case for grant of certificate for appeal. The petition is allowed and the requisite certificate be given to the Petitioner to enable him to file an appeal before the Supreme Court.