HARISH Vs. STATE OF RAJASTHAN
HIGH COURT OF RAJASTHAN
STATE OF RAJASTHAN
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S C.Agarwal, J. -
(1.)This bail application has been moved by petitioner Harish under Section 438 Criminal Procedure Code. A case under Section 3/7 of the Essential Commodities Act bas been registered against the petitioner on the basis of F.I R. No 70/84 of Police Station Kotwali, Alwar. The said petitioner had earlier moved a Misc. Bail Application No. 436/84 before this court under Section 438 Criminal Procedure Code. The said application was dismissed by this Court by the order dated 29th March. 1984 with the observations that the petitioner should approach the Sessions Judge first before moving this Court under Section 438 Criminal Procedure Code. Thereafter the petitioner moved a petition under Section 438 Criminal Procedure Code before the Special Judge, Alwar under the Essential Commodities (Special Provisions) Act, 1981. The said application was dismissed by the Special Judge on 12th April,) 984 on the ground ,bat no petition under Section 438 Criminal Procedure Code lies in view of the provision contained in the Essential Commodities Act (Special Provisions) Act, 1981. In this connection the Special Judge has placed reliance on sub-section (4) of Section l2aa of the Essential Commodities (Special Provisions) Act, 1981 which preserves the powers of this Court with regard to bail under Section 439 Criminal Procedure Code. The learned Special Judge has held that in view of this express provision reserving the powers under Section 439 Criminal Procedure Code it cannot be held that the powers under Section 438 Criminal Procedure Code are: available to him.
(2.)After the aforesaid order dated 12th April 1984 was passed, the petitioner filed this petition under Section 438 Criminal Procedure Code I have beard Shri Mathur, the learned counsel for the petitioner and the learned Public Prosecutor for the State. Shri Mathur has placed reliance on section 12AG of Essential Commodities (Special Provisions) Act, 1981 which provides as under: T12AG. Application of Code to procedure before a special court: Save as otherwise provided in this Act, the provisions of the Code (including the provision as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions the Special Court shall be deemed to be a court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
(3.)The submission of Shri Mathur is that in view of the aforesaid provision the provisions with regard to bai as contained in Code of Criminal Procedure, have been made applicable to the proceedings before the Special Court and the Special Court is to be treated as the Court of Session. The submission of Shri Mathur is that in view of the aforesaid provision, section 438 Criminal Procedure Code is applicable and the Special Judge was empowered to consider the application submitted by the petitioner under Section 438 Criminal Procedure Code. In my view the aforesaid contention urged by Shri Mathur merits acceptance. Although in sub-section (4) of Section 12A an express reservation has been made with regard to the powers of this court regarding bail under Section 439 Criminal Procedure Code but in Section 12AG it has also been provided that the provisions of Criminal Procedure Code including the provisions as to bail shall apply to the proceedings before the Special Court. Section 438 Criminal Procedure Code is a provision as to bail contained in the Code of Criminal Procedure and in a view of Section 12 AG it would be applicable to the proceedings before a Special Court. In my opinion, therefore, the Special Judge was not right in holding that the provisions of Section 438 Criminal Procedure Code are not applicable to proceedings before him. Shri Mathur has submitted that Yogesh Chandra who is a co-accused in this very case was granted anticipatory bail under Section 438 Criminal Procedure Code by this Court by its order dated 21st March, 1984 in S.B. Cri. Misc. Bail application No. 358 of 1984 Shri Mathur has submitted that instead of requiring the petitioner to again approach the Special Judge under Section 43Criminal Procedure Code this court may grant him anticipatory bail under Section 438 Criminal Procedure Code. Taking into consideration the facts and circumstances of the case. I consider it a fit case, in which the accused-petitioner may be enlarged on anticipatory bail. It is, therefore, directed that the accused petitioner Harish son of Devkinandan Mcdi in the event of his arrest in connection with F.I.R. No. 870 of 1984 of Police Station Kotwaii, Alwar, the petitioner may be released on bail on furnishing a personal bond in the sum of Rs. 3000/-with one surety in the like amount to the satisfaction of S.H.O. Investigating Officer, with the following conditions: I. That the petitioner shall make himself available for interrogation by a police officer as and when required: that the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. that the petitioner shall not leave India without the previous permission of the court. Anticipatory bail granted.
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