STATE OF HIMACHAL PRADESH Vs. ISHWAR CHAND

JUDGEMENT

(1.) This is a petition under Article 134(c)(1) of the Constitution for a certificate of fitness for appeal to Supreme Court. The facts giving rise to the petition may briefly be stated.

(2.) The Respondent Ishwar Chand is a member of a partnership firm Mahabir Trading Company carrying on business in food grains at Solan. A surprise raid was made at their business premises on July 8, 1975 and the police recovered from their godowns a stock of rice and salt in contravention of the Himachal Pradesh Commodities Price Marking and Display Order. A case was registered against Ishwar Chand under the Defence and Internal Security of India Rules, 1971. While that case was pending the Respondent applied for anticipatory bail under Sec. 438 of the Code of Criminal Procedure. A question, inter alia, arose as to whether the High Court retains jurisdiction to grant anticipatory bail under Sec. 438 of the Code of Criminal Procedure in view of Sec. 12 of the Defence and Internal Security of India Act, 1971, because special tribunals have been set up to try such offences. As the question involved a point of law of sufficient importance it was referred to a Full Bench for decision. The Full Bench give its opinion on 22 -8 -1970 and chose to decide only, the law point involved and precluded from deciding on merit the individual application for anticipatory bail submitted by Ishwar Chand. The decision of the Full Bench was that the High Court retains poorer and jurisdiction to grant or refuse bail under Sec. 438 of the Code of Criminal Procedure. Thereafter the Full Bench referred the particular case of Ishwar Chand to a single Judge for consideration if anticipatory bail could be granted to him. According to the decision of the learned single Judge the anticipatory bail under Sec. 438 was granted to Ishwar Chand. Against that decision of the learned single Judge the present application is directed for leave to appeal to Supreme Court.

(3.) It may be stated that the Petitioner -State moved a similar petition before the Full Bench which was SCA. No. 10 of 1975 for leave appeal to Supreme Court, against the opinion expressed by the Full Bench. But the petition was dismissed on 12 -11 -1975 and it was held that the Full Bench had given an opinion and the ultimate decision rested with the single Judge and hence the opinion expressed by the Full Bench could neither be a judgment nor a final order within the meaning of Article 134 so that a certificate of fitness could be granted for appeal to Supreme Court. Thereafter the learned Advocate General filed the present petition which is directed against to order of the learned single Judge granting bail to Ishwar Chand Respondent.