The Supreme Court of India has stayed a Meghalaya High Court judgment which had restrained the District Councils from exercising the power to grant anticipatory bails. Now these District councils can continue to grant pre arrest bails as before, as the Supreme Court bench of Justices Dipak Misra and PC Pant observed that the "District council has been exercising the power of granting anticipatory bail to the accused in tribal areas and jurisdiction of a sessions judge does not extend to these areas.” Senior Advocate, Sri. Vijay Hansaria, appearing for the Khasi Hills Autonomous District Council, submitted that, “judgments rendered by the High Court of Guahati are binding on the High Court of Meghalaya, but vide the impugned order, the High Court without considering the binding precedents, has passed the order”. The matter is posted for hearing on 24th August,2015.
The High Court of Meghalaya in its judgment dated 16.12.2014 had restrained District councils from granting anticipatory bails. The High court in that judgment observed that “From the language expressed therein (in Section 438 of Code of Criminal Procedure), it is very clear that the power under Section-438 can be exercised either by High Court or Court of Session ”and “on bare perusal of classes of Courts as well as establishment of Session Court and provision of Section-438 CrPC, nowhere it is found that District Council Court is a Session Court.”The High court also examined whether the notification issued in the name of Governor confers any power on District councils to grant pre arrest bail, and found that the “Judge District Council has been given the power to try certain offences and he has not been given Session power as required under CrPC. So from that angle also, Court of District Council has no authority to entertain pre-arrest bail under Section-438 CrPC”. The High Court of Meghalaya noted “Trial and granting pre-arrest bail stand in two different footing and the same view has been expressed by the Division Bench of the Gauhati High Court in the case of State of Meghalaya vrs The Judge District Council Court, Shillong reported in (1993) 2 GLR 99.”
State of Meghalaya has three District Councils viz. KhasiHils Autonomous District Council (KHADC), Jaintia Hills Autonomous District Council (JHADC) and Garo Hills Autonomous District Council (GHADC). These councils are autonomous administrative divisions in which the central government has given varying degrees of autonomy within the state legislature. The establishment and functions of most of these autonomous councils are based on the sixth schedule to the Constitution of India. The courts constituted by the District Council can try suits and cases only between the parties all of whom belong to scheduled Tribes.
Read the order here.