FAYAZ AHMED AHANGER Vs. STATE

JUDGEMENT

(1.) THE petitioners were arrested on 17 -8 -1980 in F. 1. R. Nos. 295 and 296 of 1880 for offences under sections 147, 148, 332 336, 436, 148, 149, 427 and 307 R. P. C etc. On 22 -8 -1980, the Governor of Jammu and Kashmir promulgated Ordinance No. 1 which inter alia provided for enhanced punishments for certain offences and the trial of those offences by a Special Judge. It also made provisions for the grant of bail in those cases more stringent. On 27th of August 1980 the petitioners applied for bail before the learned Chief Judicial Magistrate, Srinagar, who declined to grant them bail on the ground that the offences under sections 147, 148 and 436 R. P. C. had been made triable by a Special Judge under Ordinance No. 1 of 1980 and therefore that court had no jurisdiction to consider the question of bail. The petitioners, thereafter filed the present petition in this court on 28th of August, 1980 Notice was given to the learned Advocate General and arguments were heard on 9th of September 1980, when the case was adjourned to enable the Advocate General to seek further instructions. It was heard in part yesterday also. According to learned counsel for the petitioners, the petitioners were entitled to be admitted to bail on the ground that on the date when they were arrested and thereafter till they approached this court, no court of Special Judge had been constituted under clause 15 of the Ordinance and as such the petitioners had been denied an opportunity to approach the Special Judge for the grant of bail, It is argued that even up today, no special judge is sitting at Srinagar It is also argued that since the offences which are alleged against the petitioners were allegedly committed by them before Ordinance No. 1 of 1980 came into force, the rigor of the Ordinance would not be attracted to their case. It is further urged by Mr. Hussain that the powers of this court and the court of Sessions being concurrent in the matter of grant or refusal of bail, this court could consider the question of bail in the facts and circumstances of the present case. It is asserted that the "petitioners are neither going to abscond nor to any other manner abuse the concession of bail, and as such their continued detention in Judicial Custody is not warranted.

(2.) OPPOSING the bail application, learned Advocate General and the learned Addl. Advocate General have submitted that the powers of this court under Sec. 497 (A) and 498 Cr. P. C. are no doubt concurrent with the powers of the Sessions Court in the matters of bail but the Ordinance did not confer any concurrent jurisdiction on this court with the Special Judge in the matters of bail under Section 497 (B) Cr. P. C. On this basis it is argued that all applications where offences are triable under the Ordinance should not be entertained directly by the High Court and that the accused must first approach the Special Judge under section 497 (B) Cr, P; C. and thereafter the High Court may interfere either on a reference made by the Court of Special Judge or in revision, in case the bail is declined by the Special Judge. It is also urged that on merits it is not a fit case for grant of bail because the offences are of serious nature.

(3.) PRIMA facie, the argument of Mr. Malik is sound in so far as the powers under Sec. 497 -B Cr. P. C. arc concerned. Normally this court would not interfere in matters of bail under Section 497(B) Cr.P.C. directly unless the accused has first approached the Special Judge because the jurisdiction under Sec. 497 -B Cr. P. C. has been vested in the Special Judge exclusively and not concurrently with the High Court and this is apparent from clause (c) of Section 497 -B Cr. P. C which subjects an order of bail made by the Special Judge subject to confirmation by the High Court.