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IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI, ASHWANI KUMAR SINGH, JJ.
Bisheshwar Mishra & Anr. - Petitioners
Versus
The State of Bihar - Opposite Party
Criminal Miscellaneous No.25276, 31747, 33782, 33811, 33861, 33958, 34026, 34027, 34707, 34767, 34785, 36760, 37390, 37457 of 2016
Decided on : 27-10-2016
[KEYWORD] - [SUBJECT] - [ACT SECTION LIST] - [SUMMARY]
Fact of the Case:
These petitions have been filed by different persons, who are accused in different cases, for grant of pre-arrest bail in terms of Section 438 of the Code of Criminal Procedure, 1973 (for short Code). First Information Reports were instituted against them at different police stations of the State of Bihar for having allegedly committed offences punishable under various provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act) and the Indian Penal Code, 1860 (for short IPC). The applications of accused persons, in these cases filed under Section 438 of the Code, have already been rejected by different Courts of Sessions of the different districts of the State of Bihar.
Finding of the Court:
1. A person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of prearrest bail provided in Section 438 of the Code. 2. A Court of Session or the High Court, while dealing with an application for grant of pre-arrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not. 3. An application, under Section 438 of the Code, for grant of pre-arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him. 4. An application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act. 5. Consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act. 6. An accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court.
Issues: 1. Whether a person, accused of committing an offence under the Act, is specifically barred from the benefit of statutory provisions of prearrest bail provided in Section 438 of the Code? 2. Whether a Court of Session or the High Court, while dealing with an application for grant of pre-arrest bail, is allowed to scrutinize the relevant materials with a view to find out whether any offence, under the Act, has been made out or not? 3. Whether an application, under Section 438 of the Code, for grant of pre-arrest bail can be maintained with respect to a person, who is an accused in a case registered for the offence punishable, under the various provisions of the Act, if such a person is in a position to satisfy the court that even on the basis of allegations contained in the First Information Report or Complaint petition, no ingredient of commission of any offence, under the provisions of the Act, is made out against him? 4. Whether an application, under Section 438 of the Code, in a criminal case instituted under the provisions of the Act, can be entertained by a Court of Session not specified or declared either as Special Court or Exclusive Special Court under the Act? 5. Whether consequent upon introduction of Section 14-A by way of the Amendment Act, 2015, in the Act, an appeal would be maintainable against an order passed on an application filed in the court below, under Section 438 of the Code, in a case instituted under the provisions of the Act? 6. Whether an accused, apprehending his arrest in a case instituted under the provisions of the Act, can directly file an application under Section 438 of the Code before the High Court?
Ratio Decidendi: 1. Section 18 of the Act takes away the statutory right conferred upon persons to be released on bail in the event of their arrest, who are alleged to have committed an offence under the Act. 2. The Court can only look to the First Information Report or the Complaint just in order to prima facie determine whether the ingredients of any offence under the Act at all can be said to have been attracted against the person seeking prearrest bail. 3. The Special Courts and the Exclusive Special Courts, established under the Act, have been vested with the power to directly take cognizance of the offences punishable under the Act. 4. The second proviso to Section 14(1) of the Act, positively and unequivocally, provides that the Special Court, which is essentially a Court of Session, shall have power to directly take cognizance of the offence. 5. An appeal, under newly inserted Section 14-A(2) of the Act, would lie before the High Court. 6. In a case instituted under the provisions of the Act, an accused, apprehending his arrest, cannot directly file an application, under Section 438 of the Code, seeking pre-arrest bail before this Court as the provisions, prescribed under Section 14-A(1) and (2) of the Act, like Section 34(1) and (4) of the POTA, are in clear contradistinction to that of the Code, where no appeal is provided against an order granting or refusing bail.
Final Decision: 1. Pre-arrest bail, under Section 438 of the Code, is not available to persons committing offences under the Act. 2. Section 18 of the Act totally bars a court from either making a judicial scrutiny of the case or granting pre-arrest bail to the accused of committing offence under the provisions of the Act. 3. Notwithstanding the embargo created by Section 18 of the Act against grant of pre-arrest bail, a duty is cast upon the court, hearing an application under Section 438 of the Code, to determine, on the basis of the statements, made in the Complaint/First Information Report, if the ingredients of any offence, under the Act, are made out or not. 4. An application, under Section 438 of the Code for the limited purpose of satisfying the Court that even on the basis of allegation contained in First Information Report or Complaint petition, no ingredients of commission of any offence under the provisions of the Act, are attracted, has to be filed only before an appropriate Court. 5. Against an order granting or refusing bail passed by the Special Court or Exclusive Special Court, either under Section 438 or under Section 439 of the Code, in respect of the offences under the Act, no application for pre-arrest bail or bail, under the Code, shall lie before the High Court and only an appeal, under Section 14-A(2) of the Act, would be maintainable before the High Court. 6. In a case instituted under the provisions of the Act, an accused, apprehending his arrest, cannot directly file an application under Section 438 of the Code before the High Court.
ASHWANI KUMAR SINGH, J.
These petitions have been filed by different persons, who are accused in different cases, for grant of pre-arrest bail in terms of Section 438 of the Code of Criminal Procedure, 1973 (for short Code). First Information Reports were instituted against them at different police stations of the State of Bihar for having allegedly committed offences punishable under various provisions of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act) and the Indian Penal Code, 1860 (for short IPC). The applications of accused persons, in these cases filed under Section 438 of the Code, have already been rejected by different Courts of Sessions of the different districts of the State of Bihar.
2. In course of argument, in Cr. Misc. No. 25276 of 2016 (Bisheshwar Mishra and Anr. vs. State of Bihar), two conflicting orders passed by a learned single Judge, in two different cases, came to the notice of the learned single Judge.
3. In Cr. Misc. No. 24733 of 2016 (Dinesh Kumar and Ors. vs. The State of Bihar), the learned single Judge, taking note of insertion of new Section 14-A in the Act, vide The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short the Amendment Act, 2015) dismissed the application of the petitioner filed, under Section 438 of the Code, for grant of pre-arrest bail holding the same to be not maintainable and granted liberty to the petitioner to file an appropriate appeal in terms of Section 14-A of the Amendment Act, 2015.
4. In Cr. Misc. No.24836 of 2016 (Munna Shaw @ Munna Saw vs. The State of Bihar) and analogous cases filed under Section 438 of the Code, after rejection of the pre-arrest bail application of the accused persons from the Court of Sessions Judge, the learned Single held that there would be no question of maintaining an appeal under the provisions of Section 14-A of the Amendment Act, 2015, against an order passed by the Court of Session granting or refusing pre-arrest bail under Section 438 of the Code in a case arising out of any of the offences under the Act. The learned single Judge further held that an application, under Section 438 of the Code, would not be ousted by virtue of the bar, under Section 18 of the Act, with respect to a person, who is an accused in a case registered for offences punishable under various provisions of the Act if such a person is in a position to satisfy the court that even on the basis of allegations made in the First Information Report or the Complaint petition, no case of commission of offence, under the provisions of Section 3(1) of the Act, is made out against him.
5. In view of the conflicting views of the learned single Judge in Cr. Misc. No. 24733 of 2016 (supra) and Cr. Misc. No.24836 of 2016 (supra), the learned single Judge, vide order, dated 09.08.2016, passed in Cr. Misc. No. 25276 of 2016, referred the matter to be decided by a Division Bench, while hearing an application under Section 438 of the Code, in respect of two accused persons against whom Bhabhua P. S. Case No. 312 of 2016, was registered for certain offences of the IPC as also under the provisions of the Act and directed the Registry to place the case before Hon’ble the Chief Justice for the needful.
6. The other 13 petitions have been referred to the Division Bench by different orders passed by different learned single Judges inasmuch as it was pointed out, in the course of argument, by the learned Advocates, appearing on behalf of the petitioners, that the question, whether an appeal would lie before this Court after rejection of the application filed under Section 438 of the Code for grant of pre-arrest bail by the Court of Sessions Judge, has been referred to the Division Bench for consideration, vide order, dated 09.08.2016, passed in Cr. Misc. No. 25276 of 2016.
7. Consequently, this Bench has been constituted to hear and decide the references made by the learned single Judges.
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