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TMI Blog1994 (10) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... etired High Court Judge, with one or two other members to review the cases of undertrials who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the court for withdrawal of such cases. This will not only. help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertrials who continue in jail despite this order on account of their inability to furnish bail. We, therefore, direct as under: (i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail in Raj Kumar Karwal v. Union of India (1990) 2 SCC 409: 1990 SCC (Cri) 330. Chapter IV defines the offences and prescribes stringent punishments, with minimum punishments and fines for them. For certain offences the punishment prescribed can extend to rigorous imprisonment for 20 years and a fine of Rupees two lakhs, with a minimum rigorous imprisonment of 10 years and a fine of Rupees one lakh. By Section 37 offences punishable under the Act are made cognizable and nonbailable. Where the offender is accused of an offence punishable with imprisonment of 5 years or more, the section provides that he shall not be released on bail or on his own bond unless (i) the Public Prosecutor has had an opportunity to oppose the bail and (ii) if bail is opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty and is not likely to indulge in the commission of similar offences. 2.By Amending Act No. 2 of 1989, styled as the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, far-reaching changes came to be made in the Act. This Amending Act came into force with effect from 29-5-1989, vide S.O. 379(E) of even date. By this Amendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act were triable by the ordinary courts under the Code. However, after the enactment of the Act it was expected that speedy trials and harsh punishments would help prevent and combat abuse of and illicit traffic in narcotic drugs, etc., and rid the society of drug menace. But it was soon realised that the aim of bringing the culprits to book with dispatch was not achieved. The legislature, therefore, thought that the aim of speedy trials may be achieved if Special Courts are constituted to try offences under the Act. This objective is clearly writ large in the text of Section 36 which in no uncertain terms says that the Government may constitute Special Courts "for the purpose of providing speedy trial of offences under this Act". That is why Section 36-A posits that all offences under the Act shall be triable only by the Special Court constituted for the area under Section 36, notwithstanding anything in the Code. Clause (d) of sub-section (1) of Section 36-A empowers the Special Court to take cognizance of an offence under the Act upon a police report or upon a complaint made by an authorised officer. Section 36-C extends the provisions of the Code to proceedings before the Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Thus, proceedings which have commenced before the Court of Session in respect whereof it has taken cognizance before the establishment of the Special Court shall be heard and disposed of by the former which implies that cases pending before the Court of Session in relation whereto it has not taken cognizance would have to be transferred to the Special Court on its constitution. 5.Section 36 of the Act lays down the mode for the constitution of a Special Court. It provides that Government may, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for the areas to be specified in the notification. Therefore, as soon as the notification contemplated by Section 36 is published in the Official Gazette constituting one or more Special Courts for the areas to be specified in the notification, the Special Court comes into existence. Subsection (2) says that the Special Court shall consist of Single Judge appointed by the Government in the manner provided by that sub-section. Sub-section (2), therefore, indicates the strength of the Special Court, that is to say it will consist of a Single Judge. 6.We may now give an abridged version of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent High Courts, approved the view expressed by Hansaria, C.J. (as he then was) in Bhagwan Singh v. State of Orissa (1992) 2 CCR 1237 departing from the view expressed by Deshpande, J. of the same High Court in Suryakant Ramdas More v. State of Maharashtra 1989 Cri LJ 2422: (1989) 2 Bom CR 653 (Bom HC). We may incidentally mention that the view expressed by Hansaria, C.J. on the need for a committal order by a Magistrate before the Sessions Judge can take cognizance was not approved by the Full Bench of the Orissa High Court in Banka Das v. State of Orissa (1993) 75 CLT 225 (ori). Daud, J. also took the view that the Special Court could be said to have been legally constituted on 6-4-1991. He, therefore, concluded that in respect of offences committed between 29- 51989 and 6-4-1991, during which period the Special Courts were not in existence, the Court of Session only could exercise jurisdiction in view of the clear language of Section 36-D. This is how the learned Judge sums up : "In respect of cases relating to offences committed prior to 28-51989, trial of these cases was to be governed under the Code of Criminal Procedure, 1973. In respect of such cases if the Magistrates we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an such Court/Courts was not issued simultaneously but issued after some time, then in such a situation Court/Courts constituted under ordinary criminal law of the land (Code) will have jurisdiction to try offences committed under the Act. This period i.e. until Judges are appointed, would be a transitional period covered by Section 36-D(1) of the Act. Section 36-D is a deeming provision and requires to be given its true meaning having regard to the object of Act 2 of 1989. Court of Session will be deemed to be as if a Special Court . Unless we read this deeming provision in Section 36-D(1) of the Act true meaning thereof cannot be assigned and any other construction of this sub-section will render the object in enacting this sub-section nugatory." Then in the light of what he called the deeming provision, the learned Judge proceeded to ascertain the true meaning of Section 36-D(2), and held that "if Section 36-A(1)(a) and 36-D(1) and (2) are read together it leaves no manner of doubt that Section 36-D has been enacted to cover such transitional period where the Special Court is not constituted in the real sense and trial has commenced before the Court of Session". The Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to answer the point arising for our determination we may first refer to a few provisions of the Code. By virtue of Section 4(1) all offences under the Indian Penal Code have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. Section 4(2) provides that all offences under any other law shall be similarly investigated, inquired into, tried and otherwise dealt with under the Code, subject of course to any law for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 6 provides that except the High Courts and courts constituted under any other law, i.e., other than the Code, there shall be, in every State the following classes of Criminal Courts, namely (i) Courts of Session; (ii) Judicial Magistrates, First Class or Metropolitan Magistrates; (iii) Judicial Magistrates, Second Class; and (iv) Executive Magistrates. The powers of different courts have been indicated in Chapter Ill. The High Court or Court of Session can try any offence under the Penal Code and pass any sentence authorised by law, but a sentence of death if passed by the Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ything contained in the Code provide that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Government concerned authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to Section 190 of the Code. It is clear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36-C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. That brings us to Section 36-D which is a transitional provision. Under subsection (1) of Section 36-D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after by the Special Court. Ordinarily, therefore, cases pending before the Court of Session by virtue of Section 36-D(1) would be transferred to the Special Court, but sub-section (2) of Section 36-D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under sub-section (1) of Section 36D that court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by subsection (2) of Section 36-D. On a conjoint reading of Sections 36, 36-A to 36-D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under Section 36. That is the thrust of clause (a) of sub-section (1) of Section 36-A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 24-5-1989 and the constitution of a Special Court. This period which is a transitional period is taken care of by Section 36-D of the Act. Under this provision during the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive only after the Judge to preside over the court is appointed? The likelihood of a time-gap between the issuance of a notification under sub-section (1) of Section 36 and the appointment of a Judge to man the court has to be countenanced. This is evident from the facts of this case which show that the notification under Section 36(1) was issued on 4-1-1991 and the notification appointing Shri Pathan to man one of the two courts was issued on 6-4-1991. Can the Special Court be said to have been constituted on 4- 1-1991, or on 6-4-1991? Daud, J. opines that it could be said to have been constituted with effect from 6-4-1991. The learned counsel for the petitioner commends the view of Daud, J. for acceptance. The Division Bench, as pointed out earlier, disagreed with Daud, J. on the erroneous view that Daud, J. had omitted to notice the deeming provision in Section 36-D(1) when there is no such deeming provision in that sub-section or for that matter in Section 36-D. Secondly, reference to constitution of the Special Court in the real sense betrays confusion. Since Daud, J. has also not discussed this question in detail we may briefly deal with it. 14.It is common knowledge tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that exists only in legal contemplation, very similar to a corporation. A time when, a place where, and the persons by whom, judicial functions are to be exercised, are essential to complete the idea of a court . It is in its organized aspect, with all these constituent elements of time, place and officers, that completes the idea of a court in the general legal acceptation of the term. But a court may exist in legal contemplation without any officers charged with the duty of administering justice. The officers might all die or resign, and still the legal fiction would continue to exist. The judge of a court, while presiding over the court, is by common courtesy, called the court , and the words the court and the judge or judges are frequently used in the statutes as synonymous. State ex rel Maer v. City of Cincinati 19 NE 2d 902: 60 Ohio App 119 Words and Phrases, Permanent Edn., Vol. 10, p. 380 Thus when complete in its organised aspect with all the constituent elements of time, place and officers, that a court is constituted in the general legal acceptation of the term. This is true of the initial constitution only; thereafter the court will exist even if the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court on the said larger issue, they should in any case be released on bail. It is indeed true and that is obvious from the plain language of Section 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecuted for the commission of any offence under the Act. It is equally true that similar is the objective of Section 309 of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of "personal liberty" must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. See Hussainara Khatoon (IV) v. Home Secy., State of Bihar (1980) 1 SCC 98 : 1980 SCC (Cri) 40, Raghubir Singh v. State of Bihar (1986) 4 SCC 481 :1986 SCC (Cri) 511 and Kadra Pahadiya v. State of Bihar (1983) 2 SCC 104 : 1983 SCC (Cri) 361 to quote only a few. This is also the avowed objective of Section 36(1) of the Act. However, this laudable objective got frustrated when the State Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the process of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused; (ii)the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned; (iii)the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Act by Amendment Act 2 of 1989. Even after the Division Bench of the Bombay High Court refused to grant en bloc enlargement on bail on 1-2-1993 in Criminal Application No. 3480 of 1992 and B.D. Criminal No. 565 of 1992, no substantial improvement in the pendency is shown since new cases continue to pour in, and, therefore, a one-time exercise has become imperative to place the system on an even keel. We also recommend to the State Government to set up Review Committees headed by a Judicial Officer, preferably a retired High Court Judge, with one or two other members to review the cases of undertrials who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the court for withdrawal of such cases. This will not only. help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertrials who continue in jail despite this order on account of their inability to furnish bail. 18.We disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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