FAKHRUDDIN SHARAFALI AMPANWALA Vs. STATE

JUDGEMENT

(1.) Can an application for bail in anticipation of arrest as contemplated under S. 438 of the Code of Criminal Procedure, 1973 be moved before the Court of learned Sessions Judge, Hyderabad instead of Court of the Special Judge for Economic Offences ?

(2.) This Court in Superintendent Customs and Central Excise, Range II, Nellore Division, Nellore v. Elukala Krishnamachari, 1987 (32) ELT 324 (AP) has taken the view that only the Court of the Special Judge for Economic Offences is competent to entertain any application under S. 438 of the Code of Criminal Procedure, 1973 in a matter which is exclusively triable by the Special Judge for Economic Offences. Our learned brother Krishna Saran Shrivastav, J. however, has after taking notice of the Government notification in ROC. No. 1354/SO/82 dated 21-9-1982, whereby in exercise of the powers conferred under sub-section (1) of S. 12 of the Code (Act II of 1974) the High Court has appointed the Additional District and Sessions Judge in the District Headquarters who is the Judicial Magistrate of the First Class in each district where one Additional District and Sessions Judge is functioning in the District headquarters and the First Additional District and Sessions Judge in the District headquarters who is the judicial Magistrate of the First Class in each district where more than one Additional District and Sessions Judges are functioning in the District headquarters as Chief Judicial Magistrates for the respective Districts and has conferred on them all the powers of the Chief Judicial Magistrate under the said Act or under any other law for the time being in force, where the said Court for economic offences which is created for the limited purpose of trial of cases only and bail under S. 437 and not for grant of bail by the High Court and the Court of Session under Ss. 438 and 439 of the Code, felt that the view taken in E. Krishnamachari's case (1 supra) is doubtful and accordingly referred the matter for resolving the controversy to a Division Bench.

(3.) Radhakrishna Rao, J. (as he then was) in E. Krishnamachari's case (supra) has held : "A combined reading of S. 11 of S. 2(j) read with S. 14 with the latest provisions contained in the Amendment Act, 1978. We have to construe by means of the notification in G.O. Rt. No. 734, dated 13/03/1981, that the Government has constituted a Special Court for the whole of the State of Andhra Pradesh and the person that was appointed to deal with cases is that of the cadre of a Sessions Judge. It is not a case where we are dealing with a case of a Magistrates Court. It is a case where Special Tribunal has been constituted for the whole of the State of Andhra Pradesh to deal with cases, arising under the 12 Central Acts mentioned above. It is well accepted that an ouster of the jurisdiction of the ordinary Courts should not be readily inferred and that such ouster must either be clearly expressed or necessarily implied. By virtue of the notification that has been issued by the State Government which was referred to above, the jurisdiction of the ordinary sessions Courts has been impliedly ousted. The Magistrates Court in Nellore Sessions Division was entrusted specially to entertain cases under the Act. The IInd Addl. Judicial 1st Class Magistrate, who has got power to entertain matters, sent the accused for remand with a direction to produce him before the Special Judge for Economic Offences. By virtue of the order that has been passed by him, the Special Judge alone is competent and the Sessions Judge at Nellore who is having general jurisdiction, has no right to entertain the ball application either under S. 438 or 439, Cr. P.C. If we construe the powers that have been conferred on the Magistrate with a right to remand the accused for any of the offences under the 12 Acts specified above for which the Special Judge Court has been constituted under G.O. Rt. No. 734 it is only the Special Judge for Economic Offences alone that is competent to consider the application for bail. It is by implication, the jurisdiction of the Sessions Court has been taken away and the same has been conferred on the Special Judge who is entrusted to try cases arising under the Acts for the whole of the State of Andhra Pradesh. The right of appeal against the orders of the Special Judge is entirely a different aspect as it depends upon the quantum of sentence. In the State of Andhra Pradesh, the Addl. District and Sessions Judges are designated as Chief Judicial Magistrates. Against the orders of a Chief Judicial Magistrate, an appeal lies to the Court of Sessions Judge, depending upon the, quantum of sentence. In the Cr. P.C., it has been contemplated that the Chief Judicial Magistrate, though holding the cadre of a District and Sessions Judge, is inferior to Sessions Judge. But the Special Court now constituted under the provisions, is distinct and different one. The District and Sessions Judge, Nellore, should not have entertained the application for bail, when it was brought to his notice that the IInd Additional Judicial 1st Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases. If we read the G.O. Rt. No. 734 dated 13-3-1981 along with the Proviso to sub-section (1) of S. 11 and Clause (j) of S. 2 and S. 14 of the Cr. P.C. it is clear that the jurisdiction of the Sessions Divisions in the State of Andhra Pradesh has been excluded and that the Special judge for Economic Offences alone is competent to consider the application for grant of bail.