AKHILESH SINGH Vs. STATE

JUDGEMENT

(1.) This is an application for bail on behalf of Akhilesh Singh applicant under S. 439, Cr. P. C. in Crime No. 64 of 1987 under Ss. 147, 148, 307, I.P.C. and under S. 3 of U. P. Gangsters and Anti-social Activities (Prevention) Act. 1986.

(2.) A preliminary objection has been raised by Sri Girdhar Malviya, the learned Addl. Government Advocate that the application for bail moved under S. 439, Cr.P.C, by the applicant is not maintainable and the High Court or any other Court is not vested with the jurisdiction to entertain the bail application against an order dismissing the bail application by the Special Judge. It was further submitted by him that U. P. Gangster and Anti-social Activities (Prevention) Act, 1986 U. P. Act No. 7 of 1986 (hereinafter referred to as the Act) is a Special Law enacted by the State Legislature making provisions for the prevention and for dealing with Gangsters and Anti-social Activities and for matters connected therewith or incidental thereto. He further asserted that the Act is a special Code for the trial of the Gangsters which is punishable under S. 3 of the Act by sentencing not less than two years which may extend to 10 years or with a fine which shall not be less than Rs. 5000/-. The learned Additional Government advocate further stressed that the Act is a complete code as is evident from the Scheme viz. (1) which defines the offence under S. 3(c) of the Act and provides enhanced and drastic punishment for the offences specified in the I.P.C. or any other law. It was also urged by him that the Act has special provisions in S. 4 providing for special rule notwithstanding contrary contained in Cr.P.C, or Evidence Act. Moreover, S. 5 of the Act provides for special Court and enables such Court to sit at any place which it considers desirable other than the ordinary place of sitting. It was also contended by him that the jurisdiction of the special Court is exclusive under S. 7 of the Act and even the power of transfer of the case from one Court to another Court has been conferred on the State Government. It was next submitted by the learned Counsel that S. 9 of the Act provides for appointment of Public Prosecutor whose qualifications are prescribed under S. 9(2) of the Act. It was also submitted that the Act provides for appeal by applying Chap. XXIX of the Criminal P. C. mutatis mutandis. He further added that the power to grant bail conferred by S. 439, Cr.P.C, to the High Court or other Courts has not been made applicable and on the contrary the power is conferred upon the special Judge and that power has a statutory requirement that bail shall not be granted unless the Public Prosecutor has been given opportunity to oppose bail application, where the Public Prosecutor opposes the bail, the Court must be satisfied - (1) that there are reasonable grounds for believing that he is not guilty of such offences; (2) that he is not likely to commit any offence while on bail.

(3.) It was also submitted that S. 19(5) of the Act provides that the limitation for granting bail in S. 4 are in addition to the limitations under the Code and S. 20 of the Act gives overriding effect to the provision of this Act to decide matters by overriding provisions inconsistent therewith contained in any other Act. It was also submitted by the learned Additional Government Advocate that in the absence of the appointment of any special Public Prosecutor in the High Court for opposing the bail in offences under the Act, the counsel representing the state is incompetent to oppose such bail applications in the High Court in view of the provisions contained in S. 9 of the Act.