- (1.) C. A. Rahim, J. The instant revision has been preferred against the order of learned Ilnd Additional Sessions Judge, Budaun dated 17-8-1986 in Misc. Case No. 1069 of 1994 by that order the learned Sessions Judge rejected the prayer for bail of the petitioners.
(2.) THE learned counsel appearing for the revisionists has challegned the said order on two grounds firstly that the learned Sessions Judge and the learned Magistrate who was in charge of the case did not assign any reason while remanding the accused in jail custody. He has submitted that without assigning any reason if the petitioners were sent to jail custody will amount to an illegality for which the accused persons are entitled to bail. Secondly, he has submitted that the cases under Section 302, I. P. C. and under Section 3 Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act cannot be tried jointly since the case under later sections can be tried by a special judge, but the former one can be tried by the Additional Sessions Judge. In this connection he has also submitted that the instant case was sent to IInd Addi tional Sessions Judge without any order of commitment but under the provi sions of the SC and ST (P. A.) Act special judge has authority to try the case. But neither the Special Judge nor Additional Sessions Judge can take cogni zance under Section 190-B of the Cr. P. C. The learned counsel for the revisionists has cited the case of Ram Dayal Chaurasia v. State, reported in 1993 JIC 826, wherein it was held that custody of the accused is assigned on invalid remand order, without having proper reasons and application of mind custody becomes illegal and hence, the accused persons are entitled to be released on bail. In that decision in para graph No. 10, it was noted that there has been divergent views on this point that the remand order passed by the court whether requires reasons and appli cation of mind by the court before passing of the order of remand. The question referred by the Division Bench of the Lucknow Bench for considera tion to this question to a larger Bench is awaiting for decision. The learned counsel for the revisionists has submitted that no decision has yet been taken by a larger Bench in this respect. As to the second point, the learned counsel for the revisionists has referred the case of Iqbal Bahadur and others v. State of U. P. , reported in 1994 JIC page 303, wherein it was held "that provisions of the Code of Criminal Procedure regulate investingation and trial of all the offences under any law other than Indian Penal Code also subject to any provisions contained in any special law which may provide to the contrary". It appears that no such special provision has been provided in the SC/st (PA) Act, 1989 and hence, the provisions of the Code of Criminal Procedure will be the guiding factor, Section 14 of the said Act only provides that there shall be a special court to try offences under that Act and in that respect the State Government shall by notification specified for each district a Court of Sessions to be Special Court. Language is distinct that Special Act cases shall be tried in Special Courts to be formed by the Government but the Act is silent about taking of cognizance by Special Court. Nothing has been stated in the appli cation or in the affidavit tiled on behalf of the State, as no counter affidavit has been filed, whether IInd Additional Sessions Judge has been empowered as Special Judge as provided in Section 14 of the Act. Even if the answer is in affirmative, the question remains to be answered whether he can take cognizance of the offence under Section 3 of the SC/st (PA) Act. So, I agree with the version of the learned counsel for the revisionists that IInd Additional Sessions Judge Budaun cannot take cognizance and cannot be assigned with the case without commitment so any order passed by him with regard to remand be it with reasons or not, must be held to be without jurisdiction and, hence, illegal.
(3.) THE learned Government Advocate in reply to the first point raised by the learned counsel for the revisionists states that the order is interlocutory since the bail application was filed and the same was heard and rejected by the learned Ilnd Additional Sessions Judge and in that connection the impugn ed order was passed. He has submitted that rejection of prayer for bail cannot be regarded as final order and according to Section 397 (2) of the Code of Criminal Procedure no revision with being an interlocutory order. It is true that prayers for bail when rejected no final order is passed there cannot be any revision under Section 397 of the Code of Criminal Procedure. As regards the second point, the learned Government Advocate has submitted that joint trial of offence is permissible under the provisions of the Code of Criminal Procedure when the acts complained of was done in the same transaction. If the submission is accepted even if it has not been answered how an offence under Section 3 of SC/st (PA) Act can be tried by an Addi tional Sessions Judge without having any special power or that how can an Additional Sessions Judge/special Judge can take cognizance under Section 190 (1) (c) of the Code of the Criminal Procedure when the charge-sheet is yet to be submitted and if brings to that stage any case be simply sent to the court of learned (sic) in view of the decision of Iqbal Bahadur's case (supra) Special Court has got no jurisdiction to take cognizance under Sec. 190 (1) (b) of then Code of Criminal Procedure and, hence, proper procedure would be to commit the case to that court, if it is Special Court, after filing of the charge-sheet.;