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Karamchand and anr. Vs. the State of M.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1561
AppellantKaramchand and anr.
RespondentThe State of M.P.
Cases ReferredGurbaksh Singh v. State of Punjab
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 18 of 1981) with a view to make special provision by way of amendment to the essential.....orderb.c. varma, j.1. this application under section 438 of the code of criminal procedure for release of the applicants on bail in the event of their arrest has been made in these circumstances:a truck no. b.h.v. 7680 loaded with rice bags was found on way between pathalgaon and jashpurnagar in raigarh district. the additional superintendent of police stopped that truck, checked it and found that the rice was being transported for sale but without selling to the purchase officer the requisite quantity of rice in accordance with clause 3 of the madhya pradesh rice procurement (levy) order, 1960. the truck was seized. the driver and the cleaner were arrested. chetandas, the applicant no. 2, is a licensed dealer in foodgrain. rice was being sent to jashpurnagar. after seizure, he applied.....
Judgment:
ORDER

B.C. Varma, J.

1. This application under Section 438 of the Code of Criminal Procedure for release of the applicants on bail in the event of their arrest has been made in these circumstances:

A Truck No. B.H.V. 7680 loaded with rice bags was found on way between Pathalgaon and Jashpurnagar in Raigarh district. The Additional Superintendent of Police stopped that truck, checked it and found that the rice was being transported for sale but without selling to the Purchase Officer the requisite quantity of rice in accordance with Clause 3 of the Madhya Pradesh Rice Procurement (Levy) Order, 1960. The truck was seized. The driver and the cleaner were arrested. Chetandas, the applicant No. 2, is a licensed dealer in foodgrain. Rice was being sent to Jashpurnagar. After seizure, he applied for placing the rice under his Suprudnama and that was done. The driver and the Khaiasi working on the truck have been released on bail. The applicants could not be arrested and it is the allegation against Karamchand that he has been avoiding his arrest. His application for his release on bail in the event of arrest has been rejected by the Additional Sessions Judge, Raigarh on a finding that prima facie there appears to be breach under Section 3/7 of the Essential Commodities Act, 1955. Now, it is Karamchand and Chetandas who have applied for their release on bail in the event of their arrest.

2. By this application, it was not disputed that the M.P. Rice Procurement (Levy) Order, 1960 is in force in District Raigarh where the rice was seized. 'Rice' under Clause 2(f) of the Levy Order is defined to mean any variety of rice produced or manufactured in a rice mill worked by power. Clause 3 of the order requires that every licensed miller and licensed dealer shall sell to the Purchase Officer at the controlled price certain quantity of rice held in stock by him. Any breach under this order is punishable under the Essential Commodities Act, 1955. The Parliament has now enacted the Essential Commodities (Special Provisions) Act, 1981 (Act No. 18 of 1981) with a view to make special provision by way of amendment to the Essential Commodities Act, 1955, for a temporary period for dealing more effectively with persons indulging in hoarding and blackmarketing of, and profiteering in essential commodities and with the evil of vicious inflationary prices or any matter connected therewith or incidental thereto. Section 12 of the Essential Commodities Act has been omitted and instead new Sections 12A, 12AA, 12AB and 12AC have been substituted. Special Courts have been constituted to try the offences under the Essential Commodities Act. It will be useful to reproduce Section 12-AA and its relevant clauses which are as follows:

12-AA. Offences triable by Special Courts. -

(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-section (2) or Sub-section (2A) of Section 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 Section 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 Section 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 a 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 Sections 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;

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial:

Provided that such other offence is under any other Law for the time being in force, triable in a summary way;

Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.

(3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall for the purposes of Section 308 of the Code, be deemed to have been tendered under Section 307 thereof.

(4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code and the High Court may exercise such powers including the power under Clause (b) of sub-section ill of that section as if the reference to 'Magistrate' in that section included also a reference to a 'Special Court' constituted under Section 12A.

3. The effect of the aforesaid provisions is the change of forum by constituting Special Courts for trial of certain offence punishable under Section 3/7 of the Essential Commodities Act. The Special Courts are authorised to exercise the same power which the Magistrate has under Section 167, Cri. P.C. in relation to an accused person who has been forwarded to him by the Executive Magistrate. Clause (d) of Section 12-AA(1) authorises the Special Courts or the High Court to release on bail a person accused or suspected for commission of offence under the Act. The Special Court, however, has to give an opportunity to the prosecution to oppose the application for release on bail unless in its opinion it is not practicable to give such opportunity. Apart from the class of persons mentioned in proviso to Sub-clause (ii) of Clause (d), when the application for release on bail is opposed by the prosecution, the Special Court shall not release on bail any person accused of offence under the Act if it is satisfied that there appears reasonable ground for believing that he- has been guilty of the offence alleged. It was argued and in my opinion rightly that even so bail may be granted in spite of opposition where prima facie there appears to be no case against the accused. This argument finds support from a decision of this Court, in Gulabchand Kannoolal v. State of M.P. 1982 MPLJ 7 : 1982 Cri LJ 665 (FB) and must be accepted. In that case a somewhat similar provision contained in Section 5(2) of the Madhya Pradesh Dacoity Prabhavit Kshetra Adhyadesh, 1981 came for consideration. The provision was that notwithstanding anything contained in Criminal Procedure Code, no application for bail of a dacoit shall be allowed, if opposed by the police or by the prosecution, Construing that provision, the Full Bench ruled that a person arrested for dacoity or for specified offence under the Ordinance can apply for bail in spite of Section 5(2) at the stage immediately after his arrest the ground that there was no reasonable suspicion of his being concerned in such offence; at the stage after twentyfour hours of his arrest and during investigation on the ground that there are no grounds that the accusation or information against him is well founded; and at the stage after the investigation is complete on the muund that there is no sufficient evidence or prima facie proof against him in support of the accusation. See also Badri Prosad v. State : AIR1953Cal28 and Abbas All v. State of M.P. M. Cr. C No. 1004 of 1975 decided on the 20th Aug 1975 : 1975 MPLJ (SN) 109. Following that decision, it must be held that bail may be granted to a person accused of offence punishable under Section 3/7 of the Essential Commodities Act, even if opposed when there appears no sufficient evidence or prima facie proof in support of the accusation.

4. I am unable to agree with the argument advanced by Shri M. V. Tamaskar, learned Government Advocate, that the provisions of Section 12-A A are attracted only when a person is arrested of an offence under Section 3/7 of the Essential Commodities Act. The contention is that a reading of Section 12-AA excludes the operation of Section 438 of the Code. Particular reference was made to clauses (b), (c) and (d) of Sub-section (1) of Section 12-AA. In my opinion, the argument is fallacious. Clauses (b) and (c) have special reference to Section 167 of the Code. What is laid down there is that when a person accused of or suspected of commission of an offence under the Essential Commodities Act is forwarded to a Magistrate for purposes of remand, the Magistrate may direct his detention in custody for a period of 15 days in the whole if he is a Judicial Magistrate or for 7 days in the whole if he is an Executive Magistrate. The Magistrate to whom the person is so forwarded may release him on bail in terms of proviso to Clause (b) else in terms of Clause (c), he has to forward such person to the Special Court having jurisdiction. The Special Court shall exercise the same powers as the Magistrate may exercise under Section 167 of the Code in relation to the person so forwarded to him. Even this exercise of power under Section 167 is subject to the provisions of Clause (d). So far the reference is only to the exercise of power either by the Magistrate or the Special Court under Section 167 of the Code in relation to the person forwarded to them as aforesaid. Clause (c) is followed by Clause (d) which contains a general provision regarding release on bail of a person accused of or suspected of commission of an offence under the Act. It begins with a qualifying clause 'Save as aforesaid'. This, in my opinion, has a reference to the proviso to Clause (b) which speaks of the powers of- the Magistrate to release a person on bail in terms of proviso to Clause (b) and in that case the restriction imposed by proviso to Clause (d) shall not apply. Clause (d) confers jurisdiction upon the Special Court or the High Court to release a person on bail when he is accused of or suspected of commission of the offence under the Act. Jurisdiction of other Courts to release such a person on bail except as contained in Clause (b) is taken away. Clause (d) unlike clauses (b) and (c) has no reference to Section 167 of the Code. It speaks of bail generally and only seeks to confer jurisdiction in that behalf in the Special Court or the High Court. The only restriction or curtailment on the exercise of that power is contained in the proviso which follows that clause. There is no other restriction. It will, therefore, be unreasonable to think that Clause (d) is attracted only in case when the person is arrested and not before it.

A reference was also made by Shri M. V. Tamaskar, learned Government Advocate, to Sub-section (4) of Section 12-AA and it was submitted that what is saved to the High Court is the power under Section 439 of the Code alone. It was, therefore, submitted that power under Section 438 should be deemed to be impliedly taken away. This argument also cannot be .accepted. Power to release on bail is conferred by Clause (d) of Sub-section (1) of Section 12-AA. What Sub-section (4) says is that the special power of the High Court under Section 439 of the Code regarding bail shall remain unaffected notwithstanding anything contained in Section 12-AA and the High Court shall be in a position to set aside or modify any condition imposed by the Special Court while granting bail. I am unable to read anything in this sub-section to exclude the operation of Section 438 of the Code for an offence under the Act. I am, therefore, of the opinion that the Special Court or the High Court, in exercise of power under Section 438 of the Code, can release a person accused of or suspected of commission of the offence under the Act in the event of his arrest. In S. Murgeshappa v. State of Karnataka 1984 EFR 27 : Cri Petn. No. 498 of 1983 decided on the 22nd June 1983 (Reported in 1984 Cri LJ 1819) the Karnataka High Court has also held the provisions of Section 438 of the Code to be available to a person accused of or suspected of commission of offence under Section 3/7 of the Essential Commodities Act and for this support has been drawn from the, provisions of Section 12-AC of the Act. It has been further observed that as while exercising powers under Section 12AA to Section 12-AC the Special Court shall be deemed to be the Court of Sessions, the Special Court shall have powers similar to that of Court of Sessions even in the matter of grant of bail in the event of arrest.

5. Learned Government Advocate submitted that the restrictions imposed for release on bail of a person accused of or suspected of commission of the offence under the Act should also govern an application under Section 439 of the Code. As against this, Shri Datt, learned Counsel for the applicants, contended that those restrictions could apply only in case when the applicant is in custody. I feel inclined to accept the contention advanced by the learned Government Advocate. As I have shown earlier, the provision for bail is contained in Section 12-AA(1)(d) of the Act. It is true that the earlier clauses (b) and (c) contemplate a person under arrest but then they envisage a case where a person so arrested is brought before a Magistrate or the Special Court for purpose of remand in terms of Section 167 of the Code. Provisions contained in Clause (d) alone provide for release on bail. I am not prepared to hold that this Clause (d) is only a further extension of clauses (b) and (c). Instead, it is this clause which enacts a provision for release on bail a person who is accused of or suspected of commission of an offence under the Act. There does not appear to be any expression in this clause indicating that it is attracted only in case of a person in custody. There are no express words to that effect in this clause. In absence of any such indication in text of Clause (d), it will be unreasonable to hold that its operation is limited to a person in custody alone for it will not be the function of the judiciary to supply words in any given Statute when on plain reading the Statute can be effectively applied and is workable. It is a cardinal rule of construction that intention of the Legislature is to be gathered from the language used and a construction which requires for its support, addition or substitution of words which results in rejection of words as meaningless, has to be avoided. Words in an Act should not be read unless it is absolutely necessary to do so. Supplying words would mean legislation and not construction. It will, therefore, be not permissible to read in Clause (d) that it applies to a person in custody where there is no such indication in the body of that clause itself. Further, there also does not appear to be any good reason to restrict the operation of that clause to a person in custody alone, I am of opinion that Clause (d) applies also to the person who applies for his release on bail in the event of his arrest and before he is taken in actual custody. As a necessary corollary, therefore, it must follow that the proviso to Clause (d) also would be attracted when an application is made for release on bail in the event of arrest (Anticipatory bail) by a person accused of or suspected of commission of offence under the Act.

6. Shri S. C. Datt, learned Counsel for the applicants, referred to a decision of the Supreme Court in Balchand v. State of M.P. AIR 1977 SC 366 : 1977 Cri LJ 225 in support of his contention that the operation of Clause (d) and its proviso is restricted only to a person in custody. There the Court was concerned with a question of grant of anticipatory bail to a person accused of an offence falling under Rule 184 of the Defence and Internal Security of India Rules, 1971. The relevant provision was as follows:

Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody be released on bail....

(Underline is mine.)

It was held that an application for grant of anticipatory bail under Section 438 would be outside the mischief of Rule 184, on the other hand, Bhagwati, J., in paragraph 5 of the judgment in Balchand's case has observed that if these are the conditions provided by the rule-making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant 'anticipatory bail' to a person apprehending arrest on such accusation, though they would not be strictly applicable. Fazal Ali, J., in his separate judgment in Balchand's Case, in para 25, formulated four principles, the fourth of which reads as under:

(4) that in cases covered by Rule 184 of the Rules the Court exercising power under Sections 436 or Section 438 of the Code has got to comply with the conditions mentioned in clauses (a) and (b) of Rule 184 and only after the Court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed.

It may be mentioned that conditions in clauses (a) and (b) attached to Rule 184 of those Rules are practically the same as are contained in clauses (i) and (ii) of the proviso to Clause (d) of Sub-section (1) of Section 12-AA of the Act. Thus, the aforesaid observations in Balchand's Case (supra) support the contention advanced by the learned Government Advocate. Shri Datt also referred to the decision in Gurbaksh Singh v. State of Punjab : 1980CriLJ1125 . That decision is an authority for the proposition that the High Court or the Court of Sessions to whom the application for grant. of anticipatory bail is made ought to be left free to exercise their judicial discretion in that behalf. It was pointed out that the power conferred by Section 438 is an extraordinary character, namely, that it is not ordinarily resorted to like the power under Sections 437 and 439 of the Code and this power to grant anticipatory bail should be exercised with due care and circumspection. Upholding the constitutional validity of Section 438 of the Code, it was observed in regard to anticipatory bail that if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. Ultimately, it was observed that there are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the Court while granting or rejecting anticipatory bail. It was held:

The Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State' are some of the considerations has to keep in mind while deciding an application for anticipatory bail.

Finally, it was said that no hard and fast rule can be laid down in discretionary matter for the grant of refusal of bail, whether anticipatory or therewise. It will thus be seen that Gurbaksh Singh's Case (supra) deals more with the scope and interpretation of Section 438 of the Code and principles governing the grant of anticipatory bail. It does not deal with any such question as has arisen in this case. Instead, Balchand's case (supra) is more in point as it also deals whether restrictions imposed for release on bail of a person in custody for offence under Rule 184 of the the DIR. Rules can also apply to a case when the person is not in custody and applies for his release on bail under Section 438 of the Code. In that, case, although the Supreme Court overruled the High Court's decision when the High Court said that Section 438 was not at all applicable, it held that while exercising power under Section 438 of the Code also the Court has to comply with the conditions mentioned in clauses (a) and (b) of Rule 184 of those Rules.

7. My conclusion, therefore, is that restrictions imposed upon the power of the Special Court or the High Court to release on bail person accused of or suspected of commission of the offence under the Act shall also apply to an application under Section 438 of the Criminal Procedure Code, claiming anticipatory bail, i.e., release on bail in the event of arrest.

8. It was also an argument that proviso to Clause (d) of Section 12-AA (1) governs the consideration of bail by the Special Court and not by the High Court whose special powers for grant of bail under Section 439 of the Code are preserved by Sub-section (4). Sub-section (4) does permit a reading that powers of the High Court for release on bail under Section 439 are left unfettered by any restrictions imposed by various sub-clauses of Sub-section (1). However, Sub-section (4) has reference only to Section 439 and not to Section 438 of the Code. It is true that the proviso to Clause (d) of Section 12-AA (1) refers only to the Special Court and no reference to the High Court is made thereunder yet it seems to be reasonable to apply those limitations to an application under Section 438 of the Code made before the High Court also. Even if, therefore, on the strict language used it were possible to hold that the proviso to Clause (d) governs an application only before the Special Court, these conditions can well be taken as providing guidelines for deciding an application for grant of anticipatory bail by the High Court. I am, therefore, of the opinion that the conditions mentioned in the proviso to Clause (d) for. grant of anticipatory bail to a person accused of or suspected of commission of the offence under the Act shall also govern or at least provide guidelines for decision of such application when presented before the High Court under Section 438 of the Code.

9. The facts of the present case disclose prima facie that 150 bags of rice was being transported for sale without complying with the provisions of clause 3 of the levy Order. This position was not disputed by the learned Counsel for the applicants. The contention had been that the rice was hand-pound and, therefore, not subject to any levy. The applicants are said to have made such a representation to the authority soon after the seizure of the rice. Apart from the question whether the definition of the term 'rice' as given in the Levy Order would also include hand-pound rice (which question) I do not propose to decide here), the result of analysis of the rice so seized placed before me by the learned Government Advocate shows that the rice seized contained 60% of the processed rice and 40% of the hand-pound rice. Prima facie therefore, the contention raised by the applicants that the rice seized was only hand pound has been found to be false. It cannot therefore, be safely said that the prosecution has prima facie shown that the breach of the levy order has been committed and, there are reasonable grounds for believing that at least applicant No. 2 is guilty of the offence concerned. The case-diary further shows that the applicant No. 1 Karamchand who was also on the truck at the relevant time, could escape and since then has been absconding. Learned Counsel argued that investigation is also most complete, the documents have been inspected and seized and the place of the business has been searched. It was further assured that the applicants are willing to submit themselves for interrogation or investigation at any time if necessary, and, therefore, they be released on bail. Since I have earlier held that the special provisions contained in Clause (d) of Section 12-AA(1) shall also govern an application under Section 438 of the Code and since the bail is opposed and there are reasonable grounds for believing that at least the applicant No. 2 is guilty of the offence concerned, these arguments are of no avail to the applicants.

10. It was also argued that no case is made against Karamchand who is not the licensed dealer, Karamchand is the Son of Chetendas and it is the case of the prosecution that at the relevant time he was in the truck but could manage his escape. Even so, on the material collected by the prosecution, there appears to be no reason to say that Karamchand has also committed the offence charged. That being so, in my opinion, applicant Karamchand has succeeded in making out a case for his release on bail in the event of his arrest. The application, in so far as it relates to applicant Karamchand's release on bail in the event of his arrest must, therefore, be allowed.

11. In the result, I direct that applicant Karamchand be released on bail of Rs. 10,000/-(Rupees ten thousand only) with two sureties in the like amount, in the event of his arrest, in connection with Crime No. 3 of 1984 in the Police Station Kunkuri in the Raigarh District, on the following conditions:

i) that he shall make himself available for interrogation by any officer of police as and when required by him at such place or places which he may specify and direct;

ii) that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer when called upon to do so; and

iii) that he shall not leave India or his place of residence without previous permission of the Court exercising jurisdiction over him for the time being during the period his presence is required for purposes of interrogation.

Application on behalf of applicant No. 2. Chetandas is rejected.


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