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2015 (1) TMI 978 - HC - CustomsConviction under the offences punishable under Sections 132 and 135 of the Customs Act, 1962 - Rejection of regular bail - Whether the Metropolitan Sessions Judge has no jurisdiction to entertain the bail application but for by the learned Special Judge-cum-VIII Additional Metropolitan Sessions Judge, which is designated as Special Court, known as Special Judge for Trial of Economic Offences, more particularly by sitting against the dismissal order by the Special Judge or otherwise once bail application is filed before the Special Judge and disposed off and if so, the impugned order of the Metropolitan Sessions Judge is liable to be set aside, with what observations and consequences. Held that - Criminal Procedure Code on the adjectival and procedural provisions, equally apply not only for the Indian Penal Code offences, but also for other offences; leave about even in investigating, inquiring or trying into I.P.C. offences and other offences together, but for to the extent saved by the said provisions of any other law to prevail, to say the Cr. P.C. provisions are in that area, general law to the extent special provisions covered those prevail and in the other areas the Cr. P.C. to apply. - It is also important to say from the designation of the Special Judge for Trial of Economic Offences as Special Judge for Trial of Economic Offences-cum-VIII Additional Metropolitan Sessions Judge, which is located at Nampally in Hyderabad, it is part of the Court of Sessions also being the VIII Additional Metropolitan Sessions Judge of the Metropolitan Sessions Division of Hyderabad headed by the Metropolitan Sessions Judge. The Metropolitan Sessions Division thereby includes Metropolitan Sessions Judge, Additional Metropolitan Sessions Judge and Chief Judicial Metropolitan Magistrates and Metropolitan Magistrates as the case may be which are part of the Division, from the combined reading of Sections 6 & 9 to 12 Cr. P.C. Special Additional Sessions Judge is not subordinate to the Sessions Judge, more particularly, for no similar provision to Section 10 of Cr. P.C., so far as the Additional Sessions Judges concerned with reference to Section 9(3) of Cr. P.C. - preamble of the notification under the heading special creation of the Special Judge s Court in the cadre of District and Sessions Judge at Hyderabad to deal with the trial of Economic offences, the notification was issued and the notification is in supersession of the earlier notifications. It reads that the Governor of Andhra Pradesh specifies the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the offences arising under the 12 Acts annexed and establishes a Special Court of Judicial Magistrate of First Class to try cases, arising under the enactments mentioned in the annexure, even if such cases include offence punishable under the Indian Penal Code and any other enactments, and the said Court shall be known, as the Court of the Special Judge for Economic Offences. Notification is in establishing the Special Court of Judicial Magistrate of First Class to try the cases whereas at the heading for creation of the Special Judge s Court in the Cadre of District and Sessions Judge and it is not even indicating two Courts constituted one of the Sessions Judge cadre and the other of the Judicial Magistrate of the First Class cadre (for want of any committal procedure under any of the enactments within the purview of Sections 190, 209 & 193 of Cr. P.C.), but for instead of from the above of the Special Judge of the cadre of the Sessions Judge is also can exercise the powers of a Magistrate. All in reference to Prevention of Corruption Act and the provisions of Cr.P.C. the then prevailing having referred to the earlier expressions that even in respect of cases which are triable by the Court of Sessions, but then this would create a conflict that can be resolved by treating, although called a Magistrate , the Special Court as the Sessions Court and also referred, in this regard, Sections 26, 28 & 29 of Cr.P.C. regarding the power of sentence that to be passed by the Court of Sessions and the Chief Judicial Magistrate or Chief Metropolitan Magistrate and the Judicial First Class Magistrate and the Metropolitan Magistrates, etc., and concluded ultimately at para 13 that there is no manner of doubt that the Special Court, although called the Special Court of Judicial Magistrate of First Class, is also a Court of Session, and as the Court of Session has all the powers to act under various provisions of Chapter XXXIII of the Code of Criminal Procedure including for entertaining the applications for anticipatory bail under Section 438 of Code of Criminal Procedure. Once the Special Court has the jurisdiction in the matters as above, it would be creating conflict of jurisdiction if in addition to a Court of Session which is specially designated for such matters the regular Court of Session also is recognised as one empowered to grant bail under Cr.P.C. It will be, in our view, not legitimate only to retain the jurisdiction of the Special Court of Economic Offences for all purposes, other than the grant of anticipatory bail and recognise such power of granting anticipatory bail in the Sessions Court of the district in which the offence is allegedly committed of which the Court has otherwise jurisdiction in the matter. Metropolitan Sessions Judge has no right at all to entertain much less to grant bail and the bail order granted is unsustainable and thereby the bail order, dated 23-4-2014, in Crl. M.P. No. 1464 of 2014 is liable to be set aside. It is in this context to be kept in mind that, as per the Apex Court s expression relied on by the accused-respondent to this application that is Omprakash (supra) the offence under the Central Excise Act and the Customs Act in view of Sections 9A, 19 and 20 of Central Excise Act and Sections 103 and 104 of Customs Act are bailable irrespective of the term of imprisonment fixed for said offence (irrespective what is contained in Schedule II of Cr.P.C.). Thus, to subserve the ends of justice any by invoking the inherent powers under Section 482 of Cr.P.C., the bail order to be kept in force for one week from today instead of cancelling forthwith and by directing the respondent-accused herein meanwhile to surrender himself before the learned Special Judge for Economic Offences, under Section 44 of Cr.P.C. to take him into custody and move for regular bail afresh to entertain the said bail application of the accused-respondent herein and to decide afresh including as to the same is bailable or non-bailable as the case may be and for granting bail subject to such conditions necessary which may not influence to the conditions imposed by the learned Metropolitan Sessions Judge in the impugned order since held without jurisdiction in granting bail as the conditions may include furnishing of full and correct address with proof with bank account particulars, passport particulars and surrender of passport, if any, attending to the investigation, assurance of availability and securing his presence before Court, non-interference with witnesses particularly the mediators to the panchanama and the like. By invoking the inherent powers of this Court under Section 482 of Cr.P.C., this order of setting aside the bail order granted by the learned Metropolitan Sessions Judge is stayed for one week from today, for the respondent-accused to continue on the bail meanwhile, so as to enable him to surrender before the learned Special Judge for Economic Offences, under Section 44 of Cr.P.C.; to take him to custody and move for regular bail afresh to entertain by the learned Special Judge to hear and decide, including as to whether the offences are bailable or non-bailable, with reference to the expression of the Apex Court in Omprakash (2011 (9) TMI 65 - SUPREME COURT OF INDIA) and in granting bail is with necessary conditions like execution of self bond with sureties furnishing of full and correct address with proof, with bank account particulars, surrender of passport, attending to the investigation, assurance of availability and securing his presence before Court, non-interefence with witnesses particularly of the mediators to the panchnama and the like. - Petition disposed of.
Issues Involved:
1. Jurisdiction of the Metropolitan Sessions Judge to grant bail. 2. Validity of the bail order granted by the Metropolitan Sessions Judge. 3. Legal implications of the Andhra Pradesh State Reorganisation Act, 2014 on the jurisdiction of the Special Judge for Economic Offences. 4. Interpretation of Sections 9A, 19, and 20 of the Central Excise Act and Sections 103 and 104 of the Customs Act regarding bailability of offences. Detailed Analysis: Issue 1: Jurisdiction of the Metropolitan Sessions Judge to Grant Bail Contentions of the Petitioner: - The petitioner argued that the learned Metropolitan Sessions Judge lacked jurisdiction to entertain the bail application after it was dismissed by the Special Judge for Trial of Economic Offences. - The petitioner cited G.O. Rt. No. 734, Home (Courts-A) Department, dated 13-3-1981, and subsequent circulars and judicial pronouncements to support this contention. - It was emphasized that the Special Judge for Economic Offences is the only competent authority to entertain bail applications for offences under the specified Central Acts. Contentions of the Respondent: - The respondent contended that the learned Metropolitan Sessions Judge was right in granting bail under Section 439 of Cr. P.C., citing the Apex Court's judgment in Omprakash and Another v. Union of India and Another, which held that offences under the Customs Act are bailable. Court's Analysis: - The court examined Sections 4, 5, 6, 9, 10, 11, and 12 of the Cr. P.C., which outline the jurisdiction and hierarchy of criminal courts. - The court noted that the Special Judge for Economic Offences, designated as the VIII Additional Metropolitan Sessions Judge, is part of the Metropolitan Sessions Division of Hyderabad, and thus, the Metropolitan Sessions Judge lacks jurisdiction over cases designated to the Special Judge. - The court referred to the Andhra Pradesh State Reorganisation Act, 2014, and clarified that the existing jurisdiction of the Special Judge for Economic Offences remains valid until new notifications are issued for the bifurcated states. Issue 2: Validity of the Bail Order Granted by the Metropolitan Sessions Judge Court's Conclusion: - The court concluded that the Metropolitan Sessions Judge had no jurisdiction to grant bail in this case, rendering the bail order dated 23-4-2014, in Crl. M.P. No. 1464 of 2014, unsustainable. - The court invoked its inherent powers under Section 482 of Cr. P.C. to stay the cancellation of bail for one week to allow the respondent to surrender before the Special Judge for Economic Offences and move for regular bail afresh. Issue 3: Legal Implications of the Andhra Pradesh State Reorganisation Act, 2014 Court's Observation: - The court observed that the bifurcation of the state necessitates the re-designation of special courts for the newly formed states of Andhra Pradesh and Telangana. - Until such re-designation, the existing jurisdiction of the Special Judge for Economic Offences at Hyderabad continues to hold for cases arising before the bifurcation. Issue 4: Interpretation of Sections 9A, 19, and 20 of the Central Excise Act and Sections 103 and 104 of the Customs Act Court's Reference: - The court referred to the Apex Court's judgment in Omprakash and Another v. Union of India and Another, which held that offences under the Central Excise Act and the Customs Act are bailable. - The court directed the Special Judge for Economic Offences to consider this interpretation while entertaining the fresh bail application of the respondent. Conclusion: The Criminal Petition is allowed, and the bail order granted by the Metropolitan Sessions Judge is set aside. The respondent is directed to surrender before the Special Judge for Economic Offences within one week and move for regular bail afresh, which the Special Judge shall entertain and decide, considering the bailability of the offences as per the Apex Court's judgment.
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