ORDER
1. Cr.P. No. 498 of 1983 and the petitions of Sharamma and Yenkanna, are under Section 438 of the Criminal P.C., 1973 (the Code); and Cr.Ps. Nos. 499 and 500 of 1983 are under Section 439 of the Code.
2. Since common questions of law and facts arise in these cases they were clubbed and heard together.
3. In all these cases the local police have registered cases against these petitioners for alleged violations of certain orders issused under the Essential Commodities Act, 1955 (the Act).
4. The allegations against the petitioners in Cr.Ps. Nos. 498, 499 and 500 of 1983 are that they, as wholesale dealers in foodgrains, rice and paddy, had violated Karnataka Foodgrains Declaration of Stock Order, 1967 and R. 8 of Karnataka Food Grains (Wholesale) Dealers Licensing Order, 1964, and thereby had committed offences punishable under Sections 3 and 7 of the Act. Their mill premises were raided and the available stock of foodgrains and account books seized.
5. The complaint against Sharamma, the petitioner in Cr.P. No. 513/83, is that she was in possession of 101 bags of cement without a valid licence and thereby had violated Karnataka Cement Control Order, 1973, read with Sections 3 and 7 of the Act. Sadar Bazaar Police, Raichur, have registered a case against her under the aforesaid provisions in their Cr. No. 175 of 1983.
6. The petitioner, Yenkanna, in Cr.P. No. 514/83 is said to have violated the relevant order issued under the Act. It is stated that when his rice mill was raided and account books examined by the Manvi Police the account did not tally in the matter of actual stock shown in the account books. 523 bags of rice were seized by the police.
7. Petitioners Siddappa and Nagarajappa are in judicial custody. After they were arrested by the Investigating Officer they were produced before the Special Court – the Court of Session, Shimoga – and they have been committed to judicial lock-up.
8. The learned Counsel for the petitioners, while seeking bail for those who are in judicial lock-up and anticipatory bail in respect of the other petitioners, submitted that the Special Court had erred in committing Siddappa and Nagarajappa to judicial lock-up and should have released them immediately on bail since they were not required for any investigation. It was further argued that in the matter of granting bail or anticipatory bail the Special Courts appear to be under an impression that their powers under the Act in the matter are more circumscribed than under the Code and, therefore, this hesitation on their part.
9. The learned State Public Prosecutor submitted that only in cases where the custody of the accused is required for further investigation an objection would be raised on behalf of the prosecution to commit them to judicial lock-up or police custody, as the case may be, and in all other cases normally the prosecution would have no objection to release them on bail provided other conditions are satisfied.
10. Under the Act, as it stands after its amendment by the Essential Commodities (Special Provisions) Act, 1981 (Central Act No. 18 of 1981), the offences arising thereunder are triable exclusively by the Special Courts constituted for that purpose. In this State Special Courts have been constituted with Sessions Judges of Court of Session, having the requisite qualification.
In the matter of investigation into the offences, arrest and detention of suspected offenders, their release on bail and trial and re : the disposal of the essential commodity and other articles seized during the investigation there are special provisions in the Act.
11. Now, coming to the powers to the Special Courts in the matter of bail, provisions of the Act relevant for our purpose are S. 12-AA(1)(c)(d)(i) and (ii). They read as under :
“12-AA. Offences Triable By Special Courts :-
(1) Notwithstanding anything contained in the Code :-
(a) all offences under this Act shall he triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court :
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of S. 167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :
(i) when such person is forwarded to him as aforesaid : or
(ii) upon or at any time before the expiry of the period of detention authorised by him; that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to S. 8, or the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction : (c) the Special Court may, subject to the provisions of Clause (d) of this sub-section exercise in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under S. 167 of the Code in relation to an accused person in such case who has been forwarded to him – under that section :
(d) save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court :
Provided that a Special Court shall not release any such person on bail –
(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to he recorded in writing is of opinion that it is not practicable to give such opportunity; and
(ii) where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned :
Provided further that the Special Court may direct that any such person may he released on hail if he is under the age of sixteen years or is a woman or is a sick or infirm person, if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing :”.
12. When the Special Court is moved with a request to release the accused on bail it has to hear the accused or the Counsel for the accused and the Prosecutor unless for some reason that Court feels that, in the circumstances, it would not be practicable to hear the Public Prosecutor. When would such a contingency arise ? That may arise if the Public Prosecutor is not in town or is not otherwise available and the Court feels that the matter, being extremely urgent, has to he taken up. Most of the bail matters will have to be dealt with on top priority basis for the reason that at stake is the freedom of an individual only under suspicion of having committed an offence. If, for some such reason, the Court feels that it is not practicable to hear the Public Prosecutor he has to leave on records the reasons for having so proceeded in the matter.
13. It is true that sub-clause (ii) of Clause (d) says that ‘Where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned’ the Special Court ‘shall not release’ the person accused of the offence. But the proviso to this sub-clause contains an important exception and that confers enough discretion on the Special Court in the matter. The proviso contains a clause which says that ‘if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing’ it may release such person on bail. This means even in cases where the Public Prosecutor opposes the granting of bail and even it there appear reasonable grounds for believing that the person accused or suspected has been guilty of the offences alleged the Special Court may release him on bail if it is satisfied that it is just and proper so to do as provided in the proviso. If the Court is satisfied that his detention or custody is not required during investigation that he is not a habitual offender, or that he will not abscond, these may be reasons to release him on bail.
14. Save as otherwise provided in the Act the provisions of the Code (Code of Criminal Procedure) do apply to these proceedings (See Section 12A of the Act). While exercising their powers under those provisions they are deemed as Court of Session. Thus, in the matter of anticipatory bail. Special Courts have powers similar to that of the Court of Session. In dealing with claims for anticipatory bail arising under Section 438 of the Code the Special Courts will exercise their discretion fairly and properly keeping in view the ambit and scope of that provision as explained by the Supreme Court in Gurubaksh Singh Sibbia v. State of Punjab .
15. Let us now examine, in the light of what is stated above, the cases on hand.
As already stated in Siddappa’s and Nagarajappa’s case their mill premises have been raided and the essential commodities attached and their account books have also been seized. It is evident that they are not required for further investigation and that is why they are committed to Judicial lock-up. In the circumstances their claim that they have to be released on bail has to be upheld.
16. The remaining revisions being applications under Section 438 of the Code the same, as observed by this Court in Cr.R.Ps. 472 and 460 to 463/83 (D.D. 14-6-1983) should have been filed at the first instance in the concerned Special Courts. In view of the submissions of the learned Counsel for the petitioners that taking a narrow view of the relevant provisions of the Act the Special Courts have not been treating these cases like other cases of anticipatory bail coming before Sessions Court I propose to dispose of these applications on merits.
In Cr.P. No. 498 of 1983 the 1st petitioner, Murugeshappa, it appears, has applied on 20-6-1983 for anticipatory bail. Counsel for the petitioners submitted that the Special Court has posted that application to 24-6-1983. In so far as Murugeshappa’s application is concerned it is pending there and therefore it may not be necessary to consider his case now. In so far as the others in this petition are concerned, as already stated, their essential commodities and the account books have been seized and they may not be required by the Investigating Officer, and if required by him, the petitioners may be directed to appear before him.
Likwise, in Cr.Ps. Nos. 513 and 514 of 1983 also the essential commodities, in relation to which the violation is alleged to have taken place, are attached. They can also be released on anticipatory bail.
17. Accordingly Cr.Ps. Nos. 499 and 500 of 1983 are allowed. The Special Court, Shimoga, is hereby directed to release Siddappa and Nagarajappa on bail on each of them executing bond in a sum of Rs. 10,000/- with a surety in a like sum to his satisfaction.
Cr.Ps. Nos. 513 and 514 of 1983 are allowed. In case Sadar Bazaar Police, Raichur, were to arrest in their Crime No. 175 of 1983 the petitioner, Sharamma, she may he released on bail on her executing a bond in a sum of Rs. 5,000/- with a surely in a like sum to their satisfaction. In the event of the Manvi Police arresting the petitioner. Yenkanna in Cr.P. 514/83 in their Crime No. 105 to 1983, he may be released on bail on his executing a bond in a sum of Rs. 10,000/- with a surety in a like sum to their satisfaction.
Cr.P. No. 498 of 1983 is partly allowed. If Shimoga Rural Police, in their Crime No. 135 of 1983, were to arrest petitioners 2 to 6 in the above case, they will release these persons on bail on each of them executing a bond in a sum of Rs. 5,000/- with a surety in a like sum to their satisfaction. The application of Murugeshappa, petitioner No. 1, in that case for reasons stated above, is disposed of. All the above petitioners, who are released on anticipatory bail by this order will make themselves available to the investigating Officers concerned as and when their presence is required, by them for purpose of interrogation. These persons will not, in any manner, interfere with the investigation and will not leave the country without the prior permission of the Special Court concerned.
18. Order accordingly.
