Skip to content


State of Punjab Vs. Balraj Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1986CriLJ1255
AppellantState of Punjab
RespondentBalraj Singh and anr.
Cases Referred and Rakesh Kaushik v. Delhi Administration
Excerpt:
.....of an offence triable under the act they are as follows :(1) the court must be satisfied that the accused is not guilty of such an offence. (3) wherever section 439a of the code is applicable in relation to offences enumerated therein, the court is further satisfied that there are exceptional and sufficient grounds to release the accused on bail (offence under section 25 of the arms act being one of them and the provision applicable in punjab). 8. it is on such recorded satisfactions that a bail order can be said to be valid. and to repeat, it is highlighted that none of the angular tests prescribed by the act or the code was satisfied by the special court in granting bail to the respondents......under the circumstances, 1 consider it to be a fit case to admit applicants balraj singh and ajmer singh to bail. 4. at the outset, mr. m. s. rakkar, learned counsel for the respondents, challenges the jurisdiction of this court to cancel bail of the respondents on the premises that section 439(2) of the cr. p.c. is not applicable, as bail was not granted to the respondents under the said code but under the terrorist affected areas (special courts) act, 1984 which is a special act. it was further observed that sections 4 and 5 of the code read with section 15 of the act make it clear that if bail was granted under the act, it could only be cancelled under the act, if there was any provision enabling for the purpose.5. section 4(2) of the code warrants that all offences under any other.....
Judgment:
ORDER

M.M. Punchhi, J.

1. Shri K. S. Bhalla, Judge, Special Court, Judicial Zone, Julluridur, granted bail to the accused-respondents. They were accused of having committed offences under Sections 25/54/59 of the Arms Act vide order dt. 6th Feb. 1985. The State of Punjab seeks cancellation of bail on a variety of grounds.

2. An Army Officer by the name of Major Charan Dass during mopping up operations after Army Action at Amritsar, who lodged the F.I.R. at Police Station Siri Hargobindpur, District Gurdaspur, on June 12,1984 intimated that he had carried out the house search of Sarvshri Balraj Singh, Ajmer Singh (the present respondents) and Kirpal Singh, all sons of Gurbux Singh, residents of village Pind-Rodi and during search he had found four packages of arms and ammunition from their house from a steel box. The lists of arms and ammunition which he recovered from the house of the accused, when arrested, were as follows :

3. The recovery itself reflected that the house from which these were recovered was a complete arsenal by itself. The accused-respondents were granted bail by Shri K. S. Bhall, Judge, Special Court, Judicial Zone, Jullundur observing as follows :

Arguments heard. It is obvious from the first information report that recovery in this case was made from a steel box during house search by Major Charan Dass of 6-Madras-Regt. It is mentioned in the F.I.R. that the house belongs to applicants Balraj Singh. Ajmer Singh and their brother Kirpal Singh. There is nothing on the record to show if Major Charan Dass of 6-Madras Regt. had any personal knowledge about the ownership of the property situated in village Pindarori. No evidence has been collected during investigation to fix up the ownership of the house. It is alleged at Bar that Balraj Singh etc. are five brothers. On the basis of the said recovery from the alleged house, three persons have been made liable namely Balraj Singh, Ajmer Singh and Kirpal Singh without directly connecting anyone of them with the recovered arms and ammunition, except the alleged joint Appendix 'A' possession. Under the circumstances, 1 consider it to be a fit case to admit applicants Balraj Singh and Ajmer Singh to bail.

4. At the outset, Mr. M. S. Rakkar, learned Counsel for the respondents, challenges the jurisdiction of this Court to cancel bail of the respondents on the premises that Section 439(2) of the Cr. P.C. is not applicable, as bail was not granted to the respondents under the said Code but under the Terrorist Affected Areas (Special Courts) Act, 1984 which is a special Act. It was further observed that Sections 4 and 5 of the Code read with Section 15 of the Act make it clear that if bail was granted under the Act, it could only be cancelled under the Act, if there was any provision enabling for the purpose.

5. Section 4(2) of the Code warrants that all offences under any other law than the Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the said provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 says that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. There is nothing in the Arms Act however to regulate the procedure for grant or cancellation of bail. So this statute is obviously out for determining the matter in hand. Now Section 15 of the Act carries a marginal note. Sub-sections (5) and (6) thereof are in the following terms :

15. Modified application of certain provisions of the Code.

XXX XXX XXXX(5) Notwithstanding anything contained in the Code, no person accused of a scheduled offence shall, if in custody, be released on bail or on his own bond unless:

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(6) The limitations on granting of bail specified in Sub-section (5) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.

6. The contention of the learned Counsel for the respondents is based on the non obstante clause in Sub-section (5) to oust the applicability of the Code but this restricted interpretation is negatived by the marginal note aforequoted. It has recently been held by a five-member Bench of the Supreme Court in Bhagirath v. Delhi Administration Criminal Appeal No. 754 of 1983, and Rakesh Kaushik v. Delhi Administration, Writ Petition (CRL) No. 1266 of 1982 : reported in 1985 Cri LJ 1179 that marginal notes in a statute are now legislative and not editorial exercises. Their Lordships observed as follows :

Even the marginal note to the section does not bear out that assumption. It rather belies it. And, marginal notes are now legislative and not editorial exercises. The marginal note of Section 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the period of detention undergone by the accused' should 'be set off against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word 'term' so as to comprehend only sentences which are imposed for a fixed or ascertainable period.

7. The test, when applied to the provision in hand, makes it crystal clear that the legislature never intended to oust the applicability of the Code. Rather it expressly provided for the modified application of certain provisions of the Code in relation to bail. It is in this light that the non obstante clause in Sub-section (5) has to be viewed. Now if I may cull out the principles for the grant of bail to a person accused of an offence triable under the Act they are as follows :

(1) The Court must be satisfied that the accused is not guilty of such an offence.

(2) The Court must record satisfaction that the accused is not likely to commit any offence while on bail.

(3) Wherever Section 439A of the Code is applicable in relation to offences enumerated therein, the Court is further satisfied that there are exceptional and sufficient grounds to release the accused on bail (offence under Section 25 of the Arms Act being one of them and the provision applicable in Punjab).

8. It is on such recorded satisfactions that a bail order can be said to be valid. As is plain from the order of the learned Special judge aforequoted, none of the satisfactions were ever recorded. The order per se does not fall within the ambit of Sub-sections (5) and (6) of Section 15 of the Act.

9. Now the question arises, having noted the aforesaid error, is this Court helpless and not to employ Section 439(2) of the Code. Besides the afore-referred to provision, is there any other provision under which this Court can correct the error? Undoubtedly, this Court has the power of correction, if not under anything else, under Article 227 of the Constitution. The mandate of the Constitution is 'every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction'. The Zone concerned being within the territorial jurisdiction of this Court where the Special Judge is exercising jurisdiction, his orders are certainly amenable to the jurisdiction of Article 226 of the Constitution. Even under Section 482 of the Code, this Court has the power to pass orders to prevent abuse of the process of the Court or in the interests of justice. Thus, I am of the considered view that this Court has ample powers to pass appropriate orders under the aforesaid two provisions. But even then, I see no reason why Section 439(2) of the Code cannot be invoked too. Section 16(1) of the Act is a clear pointer in that regard which is in the following terms :

16. Overriding effect of Act.- (1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any other law, but save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court; and for the purpose of the said provisions of the Code, the Special Court shall be deemed to be a Court of Session.

The overriding effect of the Act on the provisions of the Code is there but within confines, set apart in the provision afore-extracted itself. To put succinctly, the provisions of the Act apply notwithstanding anything contained in the Code or any other law. But at the same time the provisions of the Code do keep applying if they are not inconsistent with the provisions of the Act. Further, the harmoniously wedded provisions of the Act and the Code would apply to the proceedings before a Special Court and for the purposes of the said provisions of the Code, the Special Court deemingly is a Court of Session Thus, when the Special Court grants bail, it grants it deemingly as a Court of Session. This is patently clear from the provisions of Sub-sections (5) and (6) of Section 15 of the Act. Nowhere has the power conferred therein been specifically earmarked for the Special Court. Rather the word used therein is 'Court' alone. It obviously means the Court concerned who is confronted with the question of bail in a scheduled offence. It is on this reasoning and understanding that the Court many a times has assumed the jurisdiction of granting bail to offenders in scheduled offences. It is on this reasoning that the Special Court deemingly as a Court of Session has exercised such a power. And if the order of that Court is deemingly that of a Court of Session, the order as such has obviously been passed as permitted by the wedded provisions of the Act and the Code. Then such an order is obviously capable of recall by the same Court or the High Court, as the case may be. Section 439(2) specifically says that a High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and committed to custody. A Court of Session grants bail under Section 439 of the Code and equally cancels bail not only under the same provision but under the same Chapter and also other bails granted by subordinate Courts. Thus, I am of the firm view that both under Sections 439 and 482 of the Code as also under Article 227 of the Constitution, this Court has the power to cancel bail granted by the Special Court as also to keep the said Court within the confines of its jurisdiction. And to repeat, it is highlighted that none of the angular tests prescribed by the Act or the Code was satisfied by the Special Court in granting bail to the respondents. On this ground alone, the order of bail need be cancelled.

10. This judgment would not be complete without adverting to the facts of the case. Now here was a large quantity of arms and ammunition recovered from a house in the village and the accused-respondents were arrested at the spot. Along with them was another man whose bail was applied for but was declined by the Special Court on account of the discrepancy in the name. But as per the allegations in the F.I.R., the third man was no other than the brother of the accused-respondents. It was perverse of the learned Special Judge at that stage to pick holes in the peculiar investigation when jointness of possession was asserted and not the ownership of the house from which the arms and ammunition were recovered. Such comment was ill-fitted when an Army Officer was the one who detected the crime. The question of ownership was neither here nor there at that stage or to the fact that besides the respondents and another, there were still two other brothers joint with the respondents. These tell tale facts, as employed the Special Court, leave much to be desired. The heavy recovery was not a gimmick which could be demolished by a thin-wafered reasoning. Thus, on merits too, the order of the Special Court is perverse and unreasonable deserving to be set aside and corrected.

11. For the foregoing reasons, this petition is allowed. Order of the Special Judge granting bail to the accused is set aside. The accused persons are ordered to surrender forthwith to custody.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //