2007 ALL MR (Cri) JOURNAL 121
(ALLAHABAD HIGH COURT)
K.S. RAKHRA AND J.M. PALIWAL, JJ.
Manoj Kumar Sharma Vs. State Of U.P. & Ors.
Writ Petition No.6698 of 2006
16th October, 2006
Petitioner Counsel: AMAR NATH DUBEY
Criminal P.C. (1973), S.437 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), S.3(1)(x) - Offence under - Application for bail - Offence under S.3(1)(x) does not fall within exception (i) of S.437(1) - Magistrate has power to entertain application for bail and decide it according to law. (Para 10)
Pappu Singh Vs. State of U.P., 1995 Cri.L.J. 2803 [Para PARA11]
2. The petitioner has prayed for quashing of the First Information Report lodged at case Crime No.94 of 2006, under Sections 323, 504, 506, I.P.C. and S.3(1)(x) S.C.S.T. Act, P.S. Aaspur, District Pratapgarh.
3. The argument of the learned counsel for the petitioner that he has been falsely implicated on account of the enmity rests on controversial question of fact which cannot be appreciated in this petition and it requires consideration of evidence which is yet to be collected and adduced before the trial Court.
4. The submission of the learned counsel for the petitioner is that even according to the F.I.R., it is a petty offence but the allegation under Section 3(1)(x) S.C.S.T. Act has been falsely made so that the petitioner may not get bail easily. His argument is that the Magistrates do not entertain bail application under Section 3(1)(x) of S.C.S.T. Act and leave it to be decided by the Sessions Judge on the assumption that the Magistrate do not have jurisdiction in the matter as the case is triable by a Court of Session.
5. We would like to make it clear that the provisions of Section 437, Cr.P.C. read with the provisions of Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act No.33 of 1989) do not create bar for consideration of bail in such matters by Magistrates.
6. Chapter IV of Act No.33 of 1989 makes provisions for Special Courts. The State Government with the concurrence of the Chief Justice of the High Court may by notification in the Official Gazette, specify for each district a Court of Session to try the offences under the Act.
7. Chapter V of the Act No.33 of 1989 deals with miscellaneous provisions. Section 18 therein provides that Section 438 of the Code of Criminal Procedure shall not apply to persons committing an offence under the Act. Again Section 19 of the Act No.33 of 1989 provides that Section 360 of the Code of Criminal Procedure and the provisions of the Probation of Offenders Act have been excluded in their application to persons guilty of an offence under the Act. Section 20 of the Act gives an overriding effect to the provisions of Act No.33 of 1989 over all other laws.
8. Act No.33 of 1989 does not make any special provision for consideration of bail application of a person in custody for commission of the offence under the Act. That being the position the bail applications for the offences committed under the Act No.33 of 1989 have to be disposed of by Magistrate in accordance with the provisions of Section 437, Cr.P.C. and by Sessions Judge and High Court in accordance with the provisions of Section 439, Cr.P.C.
9. Section 437, Cr.P.C. provides that any person accused of commission of non-bailable offence when produced before the Court, other than the High Court or Court of Sessions may be released on bail. Exceptions, in which bail may not be granted, are given in Clauses (i) and (ii) of Section 437(1), Cr.P.C. For the purpose of the present discussion Clause (i) of Section 437(1), Cr.P.C. is relevant which provides that person accused of commission of non-cognizable offence shall not be released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.
10. Section 3(1)(x) of the Act No.33 of 1989 invites penalty of imprisonment of a term which shall not be less than) six month but which may extend to five years. Clearly such offences does not fall within the Exception (i) of Section 437(1), Cr.P.C. The Magistrates have thus power to entertain an application for bail when a person is accused under Section 3(1)(x) of S.C.S.T. (Prevention of Atrocities) Act, 1989 and decide it according to law under the provisions contained in Section 437, Cr.P.C. Their rejection of such bail application on the assumption that they do hot have jurisdiction in the matter is wholly wrong approach and causes unnecessary harassment to the person accused of the offences which are otherwise bailable or not serious.
11. Learned A.G.A. argued that cognizance in the offences under the Act No.33 of 1989 is taken directly by Special Courts and, therefore, Magistrate does not have power to consider the bail application of the accused of such offences. This argument of learned A.G.A. is not correct and this Court has already held in Pappu Singh Vs. State of U.P., 1995 Cri.L.J. 2803 that Special Court under Section 14 of the Act No.33 of 1989 cannot take cognizance of an offence otherwise than in accordance with the provisions of Section 193, Cr.P.C. Said Section provides that except as otherwise expressly provided by the Code of Criminal Procedure or any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.
12. In view of the above discussion, we expect that the bail application in the matter if moved by the accused shall be considered on its merit by the Magistrate concerned in accordance with the provisions of Section 437, Cr.P.C. and he shall pass appropriate order in accordance with law.