[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...

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

Justice V Ramkumar

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