BALBIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS bail application raises an important question regarding jurisdiction of this Court in entertaining an application for bail in view of the fact that the casee in question is inter alia under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the Act'). Mrs. S.K. Bhatia, learned Assistant Advocate General, Punjab had contended that in view of the law laid down in Usmanbhai Dawoodbhai Memon and others etc. v. State of Gujarat, 1988(1) Recent Criminal Reports 540 : AIR 1988 Supreme Court 922, the jurisdiction of this Court stands excluded. A persual of the First Information Report shows that one of the three miscreants who took part in the incident was armed with a stain gun with which he shot dead Didar Singh Sarpanch. Vide Notification No. 34/14/87-3H(VI) 88/497 dated February, 10, 1988 the whole of State of Punjab was notified as a notified area for the purpose of the provisions of Section 5 of the Act. A Contention was raised by the learned Counsel for the petitioner that Section 5 of the Act did not create a new offence. It only provided for enhanced punishment for an offence inter alia under the Arms Act. This contention cannot be accepted in view of the Division Bench decision in Gurdial Singh and another v. State of Haryana, 1986(2) Recent Criminal Reports 432 : 1987(1) PLR 31. Learned Judges of the Division Bench in para 10 of the report at page 35 rejected the contention that Section 5 of the Act did not provide for a separate offence but only made a provision for enhanced punishment. The said decision was under the Terrorist and Disruptive Activities (Prevention) Act, 1985, but on this point the provisions of the present Section 5 of the Act are analogous. The learned Counsel for the petitioner next argued that this was a case of no evidence at all. In fact, according to the learned Counsel for the petitioner, the petitioner is alleged to have been given Rs. 45,000/- on May 13, 1988 by the deceased Sarpanch for supplying bricks to the gram panchayat. The petitioner is further alleged to have failed to supply the bricks inspite of repeated reminders. The Sarpanch wanted the accused to return the money and it is suspected that the petitioner entered into some sort of conspiracy and had the Sarpanch murdered. Learned counsel argued that no evidence with regard to the alleged conspiracy had been collected by the Investigating Officer so far with the request that there was no evidence at all against the accused who had been in custody since June 3, 1989. In Usmanbhai's case (supra) so far as relevant for the present purposes, it was laid down by the Supreme Court : (i) there is a complete exclusion of the jurisdiction of the High Court in cases involving arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder; (ii) under Section 14(1) of the Act the Designated Court had exclusive jurisdiction for trial of offences under the Act and by virtue of Section 12(1) it may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It follows that the case against the accused is exclusively triable by a Designated Court. The application for bail can also, therefore, be disposed of only by a Designated Court. The jurisdiction of the High Court stands excluded. The petition for bail be, therefore, returned to the petitioner to enable him to present the same to the Designated Court concerned for necessary orders.

(2.) I would like to add that in Usmanbhai's case (supra) their Lordships of the Supreme Court took pains to lay down significant guidelines to be adopted by the Designated Court in considering application for bail. Their Lordships observed that the Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. In view of the stringent provisions of the Act, it is hoped that the Designated Court will go into the facts and circumstances of the present case and dispose of the application for bail according to law.