MOHANAN Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 offences under the Kerala essential Services Maintenance Act (for short "the Act" ). Petitioners were arrested by the police alleging commission of the offences under Ss. 4 and 5 of the Act and when they were produced in Court, they were remanded to judicial custody. S. 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 petitioners 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 provision 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 s. 439 Cr. P. C. Sri. Vijayabhanu, learned counsel appearing for the petitioner in cr1. M. C. 1356 of 2002 argued that even though in the petition it is stated that it is one filed under 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 Art. 226 of the Constitution of India can be considered by this Court.

(2.) O. P. 4727 of 2002 was filed in this Court raising the question as to whether the provisions of S. 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 arts. 14,19,21 and 22 of the Constitution. An interim relief was sought for staying the operation of S. 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 Art. ' 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 under 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 under S. 482 Cr. P. C. or under Art. 226 of the constitution. In support of the above submission, the learned counsel cited the decision in Pepsi Foods Ltd. & Ann v. Special Judicial Magistrate & ors. ( (1998) 5 SCC 749 ). That was a case in which petition was filed for quashing criminal proceedings under 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 Arts. 226 and 227 or S. 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 Ss. 439 and 482 cr. P. C. and also under Arts. 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 Art. 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.

(3.) THE learned Advocate General pointed out S. 4 of the code of Criminal Procedure which says that all offences under the Indian Penal code and all offences under any other law shall be investigated, inquired into and tried by the Courts. S. 4 (2) Cr. P. C. says that all offences 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 offences. S. 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 any other law for the time being in force. THE submission made by the learned Advocate General is that it is open to the State Legislature to make law providing special procedure in respect of offences made in special or local law. S. 4 (2) of the Code says that when a special Act contains penal provisions the offences 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 offences under the Special Act will be dealt with as per the procedure under the Act. S. 5 does not say anything against what is said in S. 4 (2 ). S. 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 any 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.