PIJUSH KANTI Vs. STATE

JUDGEMENT

(1.) The instant reference made by the learned Sessions Judge, Birbhum under S. 395(2), Criminal P. C., 1973 raises a question of some importance. The question referred to this Court, when properly framed, reads as under: "Whether the Court of Session and the Special Court constituted under the Essential Commodities Act, 1955 ('Act' for short), as amended by the Essential Commodities (Special Provisions) Act, 1981 have concurrent jurisdiction to grant anticipatory bail under S.438, Criminal P. C., to a person apprehending arrest on an accusation of having committed an offence under the Act."

(2.) . In view of the importance of the question involved we requested Mr. Balai Chandra Roy, a Senior Advocate of this Court, to act as Amicus Curiae. We place on record our sincere appreciation of the valuable assistance rendered by him in deciding the question which does not appear to be altogether free from difficulty.

(3.) The controversy, as it appears, stems from S. 12AA of the Act. Sub-sec. (1) of the above section which is relevant for our present purpose is extracted below: (1) Notwithstanding anything contained in the Code - (a) all offences under this Act shall be triable only by the 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- sec. (2) or sub-sec. (2A) of S.167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks 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 S. 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 provisions 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 Special Court or the High Court : Provided that 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) all offences under this Act shall be tried in a summary way and the provisions of Ss. 262 to 265 (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.