Suresh Chandra and Anr. vs Shobha Ram & Ors.

J. C. Mishra, J.—This is an application for cancellation of bail granted to the accused opposite parties on the ground that Sessions Judge had no jurisdiction to grant bail and only the Special Judge (Dacoity Affected Area) had power to entertain and grant bail as the accused were involved in "scheduled offence" as defined in Dacoity Affected Areas Act.

The learned counsel for the accused opposite parties contended that the Sessions Judge had jurisdiction to grant bail. The only question that arises for consideration is whether the Session Judge, Agra had jurisdiction to consider the bail application under Sections 364A/302/201,1.P.C. in crime No. 275 of 1996 P.S. Kheragarh, District Agra.

It has not been disputed by either side that Court of Special Judge under the Dacoity Affected Area Act was created for the area in which the offence took place. The accused was involved under Sections 364A, 302 and 201,1.P.C. The prosecution case is that a gang of 1012 dacoits abducted Arya Deo on 21296 and thereafter they committed his murder. The dead body was found on 261296 in the State of Rajasthan within the jurisdiction of police station Mania, district Dhaulpur. The learned Sessions Judge, Agra by order dated 141297 granted bail to Shobaran on the ground that no incriminating evidence could be disclosed by the prosecution in the crime complained and his complicity came to light 20 days after the recovery of the dead body. On similar ground the accused Bharat and Ram Shankar were granted bail by order dated 26297.

The opposite parties filed counter affidavit stating that an offence punishable under Section 364A, I.P.C. is "scheduled offence" as defined in Section 2B of the Dacoity Affected Area Act (U.P. Act No. 31 of 1983) (herein called the Act for convenience) but the Act does not curtail the power of Sessions Judge to consider bail of the accused involved in the scheduled offence within the meaning of the Act. The learned counsel relied on some pronouncements in support of their contention. The learned counsel for the applicant referred to a decision of Punjab and Haryana High Court in State of Punjab v. Piara Singh, 1985 Cr. LJ 146. The learned Single Bench after considering the various provisions held that only special Court is empowered to grant bail in scheduled offences as enumerated in Terrorist Affected Areas (Special Courts) Act, 1984. The learned counsel contended that the provisions of the Dacoity Affected Areas Act 1983 and the Terrorist Affected Areas (Special Courts) Act, 1984 are similar and therefore, this pronouncement applies with full force to the facts of the case.

The learned counsel also contended that this Court has got power to cancel bail granted even in cases of wrong exercise of jurisdiction and ignoring specific provisions of law in granting bail. Reference has been made to a decision of this Court in Virendra Singh v. State of U.P, 1984 ALJ 1111. Similar view has taken in Shyam Lalv. State of U.P, 1983 (20) ACC374.

The Uttar Pradesh Dacoity Affected Areas Act, 1983 (U.P. Act No. 31 of 1983) was enacted to curb effectively the commission of scheduled offences in the Dacoity Affected Areas of the State and to make provisions for punishment and speedy trial thereof. Section 5 of the Act empowered the State Government in consultation of the High Court to constitute by notification special Courts. Section 6 conferred jurisdiction to try scheduled offences only by a Special Court. Subsection (2) of Section 7 of the Act provides that a Special Court shall, while trying a scheduled offence, so far as may be, follow the procedure provided by the Code of Criminal Procedure, for trial of Sessions cases. Subsection (3) of Section 7 made the Code of Criminal Procedure applicable provided they are not inconsistent with the provisions of the Act. The Special Court is deemed to be a Court of Sessions for the purpose of the Code of Criminal Procedure.

Section 10 has imposed restriction on the power to grant bail to any person accused of the scheduled offences. It provides that no person accused of scheduled offence shall, if in custody, be released on bail or on his own bond unless:

(a) the prosecution has been given an opportunity to oppose the application for bail, and

(b) where the prosecution opposes the application for bail, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence:

Provided that a person accused of a scheduled offence, who has been in custody for a total period of one hundred and eighty days, may be released on bail, subject to such condition as the Court may think fit to impose:

Provided further that no such person, as is referred to in the preceding proviso, shall be so released

(i) if he had been previously convicted of an offence punishablewith death, imprisonment for life or imprisonment for seven years or more; or

(ii) if he had been previously convicted on two or more occasions of a nonbailable and cognizable offencer or

(iii) if he has committed a breach of any of the conditions of the bail subject to which he was released.

The aforesaid provisions indicate that a scheduled offence is triable only by a special Court. It means that Sessions Judge has no jurisdiction to try a case if the accused is involved in a scheduled offence within the meaning of the Act. While trying the case the Special Judge has been required to follow the procedure provided by the Code of Criminal Procedure and he may perform the function of the Magistrate under Section 207 of the Code and to try the case without any committal.

In view of the foregoing provisions special Courts have been constituted to try scheduled offences in the areas declared under Section 3 of the Act by the State Government and by Section 6 of the Act jurisdiction of other Courts to try "scheduled offence" is barred.

Section 8 of the Act empowers the Sessions Judge to dispose of urgent applications where the office of the Special Judge is vacant or the Special Judge is absent or unable to act. This power to dispose of urgent applications has been conferred by the Legislature notwithstanding anything contained in the Code of Criminal Procedure, 1973. The High Court has, however, power to restrict, nullify or modify this power by any general or special order.

If no arrangement for the disposal of urgent applications has been made by the High Court by any general or special order the Sessions Judge may either dispose of the urgent application himself or make arrangement for the disposal by the Additional or Assistant Sessions Judge and in case there is no Additional or Assistant Sessions Judge by the Chief Judicial Magistrate.

In view of this provision Sessions Judge can dispose of urgent applications of the Court of Special Judge in scheduled offences only when the office of Special Judge is vacant or Special Judge is absent or unable to act. A corollary of the same is that if none of these situations are existing Sessions Judge has no power to dispose of urgent applications relating to the Court of Special Judge. Section 10 of the Act has restricted the powers of bail not with standing anything contained in the Code of Criminal Procedure, 1973. The restriction or curtailment of the power of the Sessions Judge is notwithstanding any provision in the Criminal Procedure Code. Thus, the Sessions Court is precluded from employing Section 438 of the Code in relating to any case relating to "scheduled offences" committed in dacoity affected area. Section 10 specifically curtails the power of the Court by providing that the limitation of grant of bail specified in Section 10 is in addition to the limitation under the Code or in other law for the time being in force.

In view of the above provisions I am of the view that Sessions Judge is debarred from disposing of the bail application relating to scheduled offences in dacoity affected area unless the Court of Special Judge is vacant or the Special Judge is absent or unable to act. The Sessions Judge cannot entertain or dispose of any bail application if the Special Judge is present and is able to work. In my opinion the learned Sessions Judge committed illegality in granting bail to the opposite parties who were involved in scheduled offence within the meaning of the Act.

The bail was granted more than two and half years before and there is every likelihood of the trial being concluded soon. In my opinion, I do not find it a fit case to cancel the bail at the fag end of the trial.

The application is dismissed. However, it shall be open to the Special Judge to cancel the bail in case the accused deliberately delay the disposal of the trial or on any other sufficient ground.