TMI Blog2015 (1) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 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 specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , non-interefence with witnesses particularly of the mediators to the panchnama and the like. - Petition disposed of. - Criminal Petition No. 5846 of 2014 - - - Dated:- 6-8-2014 - B. Siva Sankara Rao, J. Shri U.L. N. Sudhakar, Special Public Prosecutor, for the Appellant. Shri M. Jagadish Kumar, Counsel, for the Respondent. ORDER This Criminal Petition is filed against the order in Crl. M.P. No. 1464 of 2014 in Crime No. HQ. POR. No. 43 of 2014-CUS-PREV., of the Superintendent of Customs, Hyderabad-II, Commissionerate, Basheerbagh. 2. The petitioner herein is the complainant and the respondent is the sole accused of the above referred crime registered against him for the offences punishable under Sections 132 and 135 of the Customs Act, 1962, where he was taken to judicial custody in the pending crime by the Special Judge for Trial of Economic Offences (the designated Court). 3. The accused, who moved for regular bail before the learned Special Judge went unsuccessful, again moved to the Metropolitan Sessions Judge, who granted the regular bail under Section 439 of Code of Criminal Procedure, 1973 (in short, Cr. P.C.). By impugning the said order, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported in Omprakash and Another v. Union of India and Another - 2012 (3) SCC Crl. 1249 = 2011 (272) E.L.T. 321 (S.C.) = 2011 (24) S.T.R. 257 (S.C.) (3 Judges Bench) holding that the offences under Central Excise Act, 1944 and Customs Act, 1962 are bailable irrespective of term of imprisonment fixed for said offences in view of Sections 9A, 19 and 20 of Central Excise Act, Sections 104(3) (4) of the Customs Act and the Excise or Customs Officer cannot make arrest in respect of said offences without warrant from Magistrate concerned in the offences which are bailable; hence there is nothing to interfere with the order granting bail by the learned Metropolitan Sessions Judge. It is also the contention that by virtue of the A.P. State Reorganisation Act, 2014, without separate notifications of Government, the jurisdiction of Special Court remains stand still. 8. Perused the material on record. 9. Before formulating the points for consideration from the respective contentions supra, it is necessary to detail the factual matrix which reads as follows : (a) On 20-3-2014, at 3.20 hours, a passenger by name Kannur Abdul Khader Mohammed Haneefa, holder of Indian Passp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grams valued at ₹ 56,45,860/- (Indian Market Value), in token of the assay having conducted in their presence and the officers as well as the passenger have appended their signatures on the valuation report enclosed to the Mahazar. (b) Thereafter, when questioned by the officers in the presence of the independent witnesses, the respondent-accused while admitting that the recovered metal was gold informed that the same were received by him in Doha to handover to another person at his village. The respondent-accused further stated, that he secreted the 16 gold bars in the hand bag by wrapping them with yellow coloured paper to avoid detection by the customs authorities and to evade payment of Customs Duty. Thereupon the officers on a reasonable belief that the 16 gold bars weighing 1.866 kgs. and valued at ₹ 56,45,860/- were smuggled by the respondent-accused with an intention to evade payment of customs duty payable thereon, being liable for confiscation under the provisions of the Customs Act, 1962, thus seized the same along with other documents, under the Mahazar, dated 20-3-2014. (c) The respondent-accused, Sri Kannur Abdulkhader Mohammed Haneefa in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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? 2. To what result? In Re. Point No. 1 : 11. Needless to repeat the factual matrix detailed supra, it is important to note that, - 11(a). Section 5 of Cr. P.C. reads that, - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 4 of Cr. P.C. reads that, - Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation. - For the purposes of this Code, appointment does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, whereunder any law, such appointment, posting or promotion is required to be made by Government. As per Section 10 of Cr. P.C., - 10. Subordination of Assistant Sessions Judges. (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf. 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. 12. As per the above provisions, the Special Judge for Trial of Economic Offences, at Nampally, in Hyderabad constituted (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. referred supra. 15. From the above provisions of the Criminal Procedure Code and in this background (supra); coming to the notifications or circular instructions and the judicial pronouncements on the jurisdiction concerned :- The important Circular is of the Government of Andhra Pradesh (erstwhile) Home (Courts-A) Department, in G.O. Rt. No. 734, dated 13-3-1981, from the heading Courts - Criminal - Creating of Special Judge s Court in the cadre of District and Sessions Judge at Hyderabad to deal with the trial of Economic Offences under the specified Central Acts - Amendment to notification issued; the references made thereunder were G.O. Ms. No. 202, Home (Courts-A) Department, dated 27-3-1980, G.O. Rt. No. 1967, Home (Courts-A) Department, dated 4-8-1980, proceedings from the Registrar, High Court, Lr. No. 2220/E1/80, dated 29-12-1980 and another letter No. 4324/E1/80, dated 7-2-1981. It therefrom reads as follows : Notification In exercise of the powers conferred by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. No doubt, a reading of the above show the 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. 17. It is only the Government Order (supra) as on the date prevailing. In this regard and pursuant to which the High Court of Andhra Pradesh in Roc. No. 1348/SO/1991, dated 21-10-1991, issued Circular instructions on the subject of entertaining the bail applications in the matters pertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for bail in income-tax matters, etc., pending (investigation/enquiry/trial) before the Court of Special Judge for the Economic Offences, Hyderabad. It is, in this context, important to refer the Hon ble Single Judge s expression of this Court in Crl. M.P. Nos. 1188 and 1189 of 1986, dated 23-3-1987 reported as Superintendent, Customs and Central Excise, Range-II, Nellore Division, Nellore v. Elukala Krishnamachari and Others - 1987 (32) E.L.T. 324 (A.P.). The Court referred Section 11(1) and Clause (J) of Section 2 of the Code of Criminal Procedure with regard to the constitution of Special Courts and its ambit pursuant to the recommendations of the Law Commission in its 47th report, the Central Government since moved the State Government for setting up of a Special Court in the State of Andhra Pradesh for dealing with economic offences. The State Government after consultation with the High Court established the Special Court for economic offences at Hyderabad to deal with 12 specified Central Acts. As the maximum punishment that can be imposed being seven years rigorous imprisonment under the statute, it has become necessary to post a presiding officer in the cadre of Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his notice that the II Additional Judicial I Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases). As such the Special Judge for Economic Offences alone is the competent to consider the bail application for grant of bail and the bail granted by the learned Sessions Judge is liable to be cancelled is the conclusion, by referring some of the earlier expressions of this Court reported in viz., Ishwar Chand v. State - 1976 (1) Crl L.J. page 386, Kuppu Naidu v. State of A.P. - 1985 (3) (AP) Crl. L.J. Short notes 15 and Gulam Mohd. v. State - 1959 Madhya Pradesh 147. 19. Thus the cloud is cleared pursuant to G.O. Rt. No. 734, dated 13-3-1981 and from the expression of the High Court and the later circular instructions of this Court by referring to said earlier circular in ROC. No. 1348/SO/1991, dated 21-10-1991. 20. It is even later, there is another expression of the Division Bench of this (High) Court headed by the then Hon ble the Chief Justice of Andhra Pradesh in Crl. R.C. No. 99 of 1996 Crl. R.C. No. 98 of 1996 by common order dated 4-8-1997 on the revision filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Accordingly it was answered as follows : 1. Special Court of Economic Offences being a Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (SCSL) under Section 9 of Cr.P.C. and G.O. Ms. No. 34, Law (LA J Home Courts C) Department, dated 2-4-2013. It is in fact, the [Prevention of Money Laundering Act, 2002] not specifically covered in the G.O. Rt. No. 734 among the annexure-12 enactments; apart from the same confined to that particular case under trial and not a general conferment of the Special Jurisdiction under the enactment even and thereby, nothing more is required to be discussed with reference to the said proceeding, which is only the existing Court for the limited purpose to deal with the scope of the Act in relation to the crime covered by the Act and other offences that is dealing by a particular court for the purpose of its empowering adjudication of the lis efficaciously, touching the offence covered by the provisions of that Act also. It is also need less to say, but for in the context from a little relevancy that, all the District and Sessions Judges in the State and the Metropolitan Sessions Judges equally, in particular, under Section 11(2) of Cr.P.C. are appointed by the High Court to exercise the powers of a Judicial Magistrate of First Class under the Code of Criminal Procedure covered by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther by G.O. Ms. No. 518, dated 29-10-1987, the II Additional Metropolitan Sessions Judge of the Metropolitan Sessions Court, Hyderabad is appointed as Additional Judge to exercise jurisdiction of the designated Court constituted for Metropolitan Sessions Division for the offence under TADA Act, 1987 and the said composite notification no way invalid and those are held suffice. There is another circular instruction of the High Court in ROC. No. 510/SO-1/2002, dated 2-9-2002, which is as per the Hon ble Apex Court direction in giving clarifications that the designated the then Additional District Judge as chief Judicial Magistrates (as per the circular instructions referred supra), by virtue of the directions of the Hon ble Apex Court, the designation of the Senior Civil Judge cum-Assistant Sessions Judges as Chief Judicial Magistrates and the Chief Metropolitan Magistrates and also with reference to the understanding of the same in its referring to the Criminal Rules of Practice and the Circulars orders of 1990, in saying amendment to the relevant Rule in that behalf that was stated to be issued shortly. In fact it was also issued in taking care of. 22. It is also necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic offences Court at Hyderabad is untenable for the aforesaid reasons. Hence and subject to that, it is even left open to raise the lis in appropriate forum with appropriate contention, but for to observe that the authorities concerned may take care of, if any such notification requires to have separate notification for the State of Andhra Pradesh and for the State of Telangana and it is made clear to avoid any future confusion till such separate notification being given, the existing notification and the jurisdiction holds good conferring jurisdiction on the economic offences Court at Hyderabad for the entire State of Andhra Pradesh that existing as on the date of bifurcation and before to continue. The above conclusion draws support from expression of Lord Denning Quoted in Landmarks in the Law (Butterworths) at page 62; from Christopher St. Germans doctor Student Chapter XVI Page 45 as the following : Judges should not go by the letter by the intendment of the Statute in giving interpretation, by doing what the makers of statute would have done if they had thought of it and filling in gaps accordingly. The judges may judge after the mind of the makers so far as the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
