[BAIL] Questions & Answers By Justice V. Ramkumar- Anticipatory Bail [Part-VII]

Q.31 Can anticipatory bail be granted in respect of economic offences involving violation of FERA to the tune of millions of US Dollars ?

Ans. Yes. In Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1125), which arose out of the verdict of a Full Bench of the Punjab and Haryana High Court in Gurbaksh Singh Sibbia (Supra - AIR 1980 SC 1125), did not approve Proposition No. 7 laid down by the Full Bench to the effect that anticipatory bail cannot be granted in respect of economic offences. But in para 76 of the order dated 05-09-2019 in P. Chidambaram v. Directorate of Enforcement (Criminal Appeal No. 1340/2019) – R. Banumathi, A. S. Bopanna – JJ, it has been held that anticipatory bail cannot be granted in economic offences. Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 – M. K. Mukherjee, S. P. Kurdurkar, K. T. Thomas – JJ, has been relied on to hold that anticipatory bail cannot be granted in economic offences involving huge amounts. But Chidambaram’s case ignored the fact that the Constitution Bench in Gurbaksh Singh Sibbia had disapproved Proposition No: 7 laid down by the Full Bench of the Punjab and Haryana High Court. Hence, it may have to be considered whether it was proper on the part of the two Judge Bench in Chidambaram’s case in rejecting the application for anticipatory bail on the ground that in “economic offences” no anticipatory bail can be granted.

Q. 32 Can anticipatory bail be granted by the following Special Courts :-

a) Special Court exercising jurisdiction under the National Investigation Agency Act, 2008 (“NIA Act”) ?
b) Special Court exercising jurisdiction under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ?
c) Special Court exercising jurisdiction under the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) ?
d) Special Court exercising jurisdiction under the Prevention of Corruption Act, 1988 (“P. C. Act”) ?
e) Special Court exercising jurisdiction under the Essential Commodities (Special Provisions) Act, 1981 ?
f) Special Court exercising jurisdiction under the Prevention of Money Laundering Act, 2002 ?

Ans.

a) Yes. In Mammunhi Thalangadi Mahamood v. State of Kerala 2014 (1) KLT 132 = 2014 Cri.L.J. 2042 (Kerala) – Thomas P. Joseph – J, held that the Special Court under the NIA Act, 2008 is a Court of original criminal jurisdiction having the status of a Court of Session and in view of the provisions of Section 21 of the NIA Act, 2008, neither the Court of Session nor the High Court in their original criminal jurisdiction, can entertain an application either under Section 439 or Section 482 Cr.P.C. against an order either granting or refusing bail by the Special Court. The expression “bail” will also include “anticipatory bail”. The learned Judge, inter alia, relied on the majority view of a Full Bench decision of the Patna High Court In the matter of Shri Ravi Nandan Sahay, Sessions Judge, Patna 1993 Cri.L.J. 2436 – K. B. Sinha, U. P. Singh, D. Sinha – JJ, which, inter alia, held that the Special Court exercising jurisdiction under the P. C. Act, 1988 can entertain an application for anticipatory bail.

  The Madras High Court speaking through Justice M. Dhandapani in V. Sridharan v. State and others 2020 (2) MLJ (Crl.) 62 - M. Dhandapani - J, however, disagreed with the majority view of the Patna High Court by inter alia taking note of the fact that a Special Court under the P. C. Act, 1988 can be presided over also by an Assistant Sessions Judge, that an Assistant Sessions Judge appointed under Section 9 (3) Cr.P.C. is subordinate to the Sessions Judge appointed under Section 9 (2) Cr.P.C. and hence cannot exercise the power under Section 438 Cr.P.C.

NOTE BY VRK: It is pertinent to note that under Section 9 (3) Cr.P.C. the High Court is appointing Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session established by the State Government under Section 9 (1) Cr.P.C. Section 10 (1) Cr.P.C. also says that all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Therefore, Assistant Sessions Judges also exercise jurisdiction in a Court of Sessions although under Section 28 (3) Cr.P.C. Assistant Sessions Judges have a sentencing limit of awarding imprisonment for a term not exceeding 10 years.

b) No. Sections 18 and 18 A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC ST Act” for short) specifically state that Section 438 Cr.P.C. has no application to a case under the said Act. Hence, the question as to whether the Special Court thereunder can entertain an application for anticipatory bail will not arise. But, in Ariharan S. v. Inspector of Police, Thirumangalam, Madurai 2020 KHC 3178 = 2020 Cri.L.J. 1580 (Madras) – Justice G. R. Swaminathan of the Madras High Court has held that even if Section 438 Cr.P.C. is not available to the High Court, Section 482 Cr.P.C. can very well be invoked by the High Court for granting anticipatory bail in cases arising under the SC ST Act.

    In States like Uttar Pradesh where Section 438 Cr.P.C. has been deleted by means of State Amendments, the High Courts concerned can grant interim protection from arrest in exercise of their power under Article 226 of the Constitution of India. (Vide Km. Hema Mishra v. State of U. P. AIR 2014 SC 1066 – K. S. Radhakrishnan – J – Followed in Arnab Manoranjan Goswami v. State of Maharashtra AIR 2021 SC 1 –                                 D. Y. Chandrachud – J ).

c) Yes. Under Section 28 (1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), it is a Court of Session which is designated to be a Special Court.

    Since the Special Court is exclusively empowered to deal with the offenses under the POCSO Act, the normal criminal Courts constituted under Section 6 Cr.P.C. are excluded from dealing with the offenses under the POCSO Act. Hence, the Special Court exercising exclusive jurisdiction to deal with offences under the POCSO Act, has the power to entertain and deal with an application for anticipatory bail under Section 438 Cr.P.C. The regular Sessions Court cannot entertain any application seeking pre-arrest bail order in respect of offences under the POCSO Act. (Vide Additional Registrar General, Madurai Bench of the Madras High Court, Madurai v. NIL 2021 KHC 3264 = 2021 Cri.L.J. 1303 (DB) – V. Bharathidasan – J.)

d) No. The Special Court under the P. C. Act cannot entertain an application for anticipatory bail. Such an application will lie only before the regular Court of Session. (Vide V. Sridharan v. State 2020 (2) MLJ (Crl.) 62 – M. Dhandapani – J – the contra view of the majority in the Full Bench decision of the Patna High Court in Ravi Nandan Sahai 1993 Cri.L.J. 2436 – K. B. Sinha, U. P. Singh, D. Sinha – JJ, was not followed by the Madras High Court which preferred to follow the minority view of the Patna High Court.)

Unlike the Special Courts exercising jurisdiction under the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989, National Investigation Agency Act, 2008, Prevention of Money Laundering Act, 2002, Protection of Children from Section Offences Act, 2012, the Special Court established under Section 3 of the Prevention of Corruption Act, 1988, (“P.C. Act” for short) is not a designated Sessions Court. Moreover, even though Section 5 (3) of the P. C. Act declares that the Court of the Special Judge shall be deemed to be a Court of Session, as per Section 5 (1) of the P. C. Act the procedure for trial is that of warrant procedure and not Sessions procedure. Hence, in the absence of any enabling provision in the statute, the Special Court cannot entertain and dispose of applications for anticipatory bail.

e) No. Even though as per Section 12 A of the Essential Commodities (Special Provisions) Act, 1981 (“ECSP Act” for short) a Special Court was constituted for speedy trial of the offences under the Essential Commodities Act, 1955 (“EC Act” for short) and as per Section 12 AA of the ECSP Act all offences under the EC Act were to be tried only by such Special Court which as per Section 12 AA (1) (e) had the jurisdiction to take cognizance of the offence without the accused being committed to it for trial, and as per Section 12 AC such Special Court was deemed to be a Court of Session and the Cr.P.C. had been made applicable mutatis mutandis to the Special Court, ECSP Act which was brought into force with effect from 01-09-1982 was given a period of operation only for 15 years and it lapsed after the said period. Thereupon, the Special Courts established under the ECSP Act ceased to exist after October 1998 and the position which was in vogue prior to the coming into force of the ECSP Act got restored and offences became triable once again by Judicial Magistrates. (Vide paragraphs 15 and 16 of State of Tamil Nadu v. Paramasiva Pandian AIR 2001 SC 2972 – D. P. Mohapatra – J. )

If so, there is no question of any Special Court exercising jurisdiction with regard to offences under the EC Act, after October 1998.

f) Yes. As per Section 43 (1) of the Prevention of Money – Laundering Act, 2002 (“PML Act” for short) the State Government, in consultation with the Chief Justice of the High Court has been invested with the power to designate one or more Courts of Session to be Special Court/Special Courts for trial of an offence punishable under Section 4 of the PML Act. Under Section 43 (2) of the PML Act the Special Court is also empowered to try any other offence with which the accused may, under the Cr.P.C., be charged at the same trial. As per Section 44 (1) (b) the Special Court has been given the power to take cognizance of an offence under Section 3 without the accused being committed to it for trial. As per Section 44 (1) (d) the Special Court is given the power to hold the trial in accordance with the provisions of the Cr.P.C. dealing with a trial before a Court of Session. Section 46 of the PML Act which makes the Cr.P.C. applicable to proceedings before the Special Court, expressly includes the provisions in the Cr.P.C. as to bails and bonds and the Special Court is also deemed to be a Court of Session. The word “bail” includes “anticipatory bail” also. If so, the Special Court which is a Court of Session constituted only for trial of the offence of “money laundering”, can entertain an application for anticipatory bail as well. As per Section 44 (2) of the PML Act the power of the High Court under Section 439 Cr.P.C. is expressly preserved by the Act. Hence, both the Special Court as well as the High Court have concurrent jurisdiction to entertain and dispose applications for anticipatory bail.

    A question may arise as to whether the limitations including the twin conditions prescribed under Section 45 (1) (b) of the PML Act will apply to a request for anticipatory bail. In Section 45 (1) (b) of the PML Act as it originally stood, the “twin conditions” of bail was applicable in respect of an offence “punishable for a term of imprisonment of more than 3 years under Part-A of the Schedule”. The twin conditions in Clause (ii) of Section 45 (1) (b) made applicable to the aforesaid category of offences under Part – A of the Schedule, was declared ultra vires by the Supreme Court of India for the reason that the twin conditions could not be made applicable to an offence unconnected with the offence of “money-laundering” punishable under the PML Act in Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1 = AIR 2017 SC 5500 – Rohinton F. Nariman – J. Thereafter, the words “offence punishable for a term of imprisonment of more than 3 years under Part-A of the Schedule” occurring in Section 45 (1), were substituted by the words “offence under this Act” by Finance Act, 2018 (13 of 2018) with effect from 19-04-2018. After the above amendment, question arose as to whether the twin conditions which were declared ultra vires by the Supreme Court, have been revived or resurrected through the amendment. There cannot be any doubt that the Parliament after having removed the defect pointed out by the Supreme Court in Nikesh Tarachand’s case, was entitled to re-enact the twin conditions to be applied to the offence of “money laundering” under the PML Act. The subsequent decision of the Apex Court in Assistant Director, Enforcement Directorate v. Dr. V. C. Mohan 2022 Live Law (SC) 16 suggests that there is nothing wrong in the resurrection of the twin conditions after removing the lacuna in the statute. See also Abdul Gafoor @ Kunju Mohan v. Asst. Director, Directorate of Enforcement, Kozhikide 2022 (4) KHC 295 - Dr. Kauser Edappagath - J).