B KUPPA NAIDU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In this petition, the question that is involved is, whether it is, competent for the Sessions Court to enlarge the petitioner on bail who is involved in the offences under the Essential Commodities Act, notwithstanding the provisions enacted under S. 12-AA of the above Act.

(2.) The argument on behalf of the State advanced by the learned Public Prosecutor is that the Essential Commodities Act is a special enactment which makes a provision under S. 12-AA enabling a Special Court to consider the enlargement of the accused on bail and, therefore, that excludes the jurisdiction of the Sessions Court for exercise of the powers conferred under S. 438 Crl. P.C. Sections 12AA of the Essential Commodities Act and S. 438 Cr.P.C. read as under : "Section 12-AA. Offences triable by Special Courts :- (1) Notwithstanding anything contained in the Code, - (a) all offences under this Act shall be triable only by special court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court : (b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of S. 167 of the code, such Magistrate may authorise the detention of such person in such custody as he think fit for a period not exceeding fifteen days in the whole where such magistrate is a judicial magistrate and seven days in the whole where such magistrate is an Executive Magistrate : Provided that where such Magistrate considers - (i) when such person is forwarded to him as aforesaid, or (ii) upon or at any time before the expiry of the period of detention authorised by him that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) The Special Court may, subject to the provision of clause (d) of this sub-section, exercise, in relation to the person forwarded to it under clause (b) the same power which a Magistrate having jurisdiction to try a case may exercise under S. 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section; (d) save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court; Provided than a Special Court shall not release any such person on bail - (i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity and (ii) where the prosecution opposes the application if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned : Provided further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing : (e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial; (f) If offences under this Act shall be tried in summary way and the provision of Ss. 262 and 256 (both inclusive) of the Code shall, as far as may be, apply to such trial; Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years, (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may under the Code, be charged at the same trial : Provided that such other offence is, under any other law for the time being in force, triable in a summary way : Provided further that in the case of any conviction for such other offences in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law. (3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or a bettor in the commission thereof and any pardon so tendered shall, for the purposes of S. 308 of the Code be deemed to have been tendered under S. 307 thereof. (4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S. 439 of the Code and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Code" constituted under S. 12-A". S. 438. Direction for grant of bail to person apprehending arrest : (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not directly or indirectly, make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other conditions as may be imposed under sub-section (3) of S. 437, as if the bail were granted under under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against the person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

(3.) It is quite apparent from S. 12-AA that it does not postulate anticipatory bail at all to be granted and, therefore, the exclusion of the powers conferred under S. 438 Cr.P.C. by the special provision under the Essential Commodities Act, does not arise. Section 12-AA provides for release of persons after being apprehended of arrest. An analogous provision is enacted under S. 437 of the Cr.P.C. Therefore, it is quite manifest that the principle of Generalia specialibus non derogant has no application in this case, inasmuch as, there is no express provision under the Essential Commodities Act to grant anticipatory bail. If that be so, S. 438 will have to be attracted even to those involved in the offence under the Essential Commodities Act which is special enactment, as not even by implication, the right conferred under S. 438 Cr.P.C. cannot be said to have been taken away by virtue of the provisions under S. 12-AA of the Essential Commodities Act. Each has occupied an independent and different field. This view also is supported by a decision of the Punjab and Haryana High Court in Rajkumar v. State of Punjab, 1985 EFR 339 wherein it is stated that, "the power to grant pre-arrest bail-lies with the Court of Sessions as also the High Court." It was further held :