Sections 132 and 135 of the Customs Act, 1962, -Economics Offence - seized Gold of 16 bars by customs & excise officers at Air port Hyd.- Bail petition dismissed by special judge - Sessions judge granted bail under sec.439 - Cancellation of Bail - Sessions court has no jurisdiction for granting a Bail - Whether the offences under customs Act are bailable offences - Whether special court at Hyderabad with out notification due to bifurcation holds jurisdiction over the case - Their Lordships held that Sessions court has no jurisdiction - as per the notifications and as per Act , Special court is constituted - Regarding bifurcation their lordships hold that since offence was detected at Hyd. the special court holds jurisdiction and also held that till the date of new notification due to bifurcation, old notification applies =
As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State
of Andhra Pradesh. =
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons. Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue.=
In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile,
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11815
THE HONBLE Dr. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
06-08-2014
The Superintendent of Customs (Cus-Prev) Hyderabad-II Commissionerate, Hqrs
Office Kendriya Shulk Bhavan, Basheer Bagh, Hyderabad-500004 rep. by Special
P.P. Petitioner/ Complainant
Kannur Abdul Kader Mohammed HaneefaS/o. Sri Abdul Khader Kannur Bayan Kunhi,
Age: 33 years, r/o. Penne House, 1/90(50)Sooramsani Kannur Post,Kasargod
District-671321
Kerala State Respondent/ Accused
Counsel for the Petitioner/ Complainant : Sri U.L.N. Sudhakar
Special Public Prosecutor
for Customs, Hyderabad.
Counsel for Respondent/ Accused : M.Jagadish Kumar,
Counsel for respondent.
<Gist:
>Head Note:
? Cases referred:
01. 1987 ELT 324 (AP)
02. 1997(2) ALT (Crl.) 529 (DB) (AP)
03. 2012(3) SCC Crl.1249
04. 1987(32) ELT 324
05. 1976 (1) Crl LJ page 386
06. 1985(3) (AP) Crl. LJ Short notes 15
07. 1959 Madya Pradesh 147
08. AIR 1984 SC 718
09. AIR 1984 SC 684
10. 1988 Crl.L.J. 1117
11. 1993 Crl.L.J. 2436
12. AIR 1955 SC 196
13. AIR 1964 SC 221
14. AIR 1968 SC 1292
15. AIR 1971 SC 520
16. 1996(4)ALD 490 DB
17. 1995(3) ALD 254
18. 2001 (Crl.) L.J. 111
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
ORDER:
This Criminal Petition is filed against the order in
Crl.M.P. No.1464 of 2014 in Crime No.HQ. POR. No.43 of
2014-CUS-PREV., of the Superintendent of Customs,
Hydeabad-II, Commissionerate, Basheerbagh.
02. The petitioner herein is the complainant and
the respondent is the sole accused of the above referred
crime registered against him for the offences punishable
under Sections 132 and 135 of the Customs Act, 1962,
where he was taken to judicial custody in the pending
crime by the Special Judge for Trial of Economic Offences
(the designated Court).
03. The accused, who moved for regular bail before
the learned Special Judge went unsuccessful, again
moved to the Metropolitan Sessions Judge, who granted
the regular bail under Section 439 of Criminal Procedure
Code, 1973 (in short, Cr.P.C.). By impugning the said
order, the present revision is filed seeking to cancel the
bail order including on the contention that the learned
Sessions Judge has no jurisdiction in granting the bail.
04. Heard both sides.
05. The contentions in support of the averments in
application impugning the bail order in seeking for its
cancellation are that, the learned Special Judge for Trial
of Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Nampally (designated as Special Court)
once dismissed the application for bail, in Criminal
Petition No.905 of 2014, on 27.03.2014; the learned
Metropolitan Sessions Judge could not entertain another
bail application, much less, by sitting against to grant
the bail covered by the impugned order in Crl.P.M.P.
No.1464 of 2014, dated 23.04.2014 and hence the said
order is liable to be set aside, more particularly, for want
of jurisdiction. The other contentions are that granting of
the bail only by imposing a condition of bond of
Rs.10,000/- each to the satisfaction of Special Judge for
Trial of Economic Offences -cum- VIII Additional
Metropolitan Sessions Judge is untenable, also from the
fact of not considered of the accused person is from
Kerala State and there is every chance of his absconding,
the investigation is in progress, the crime is of a serious
nature in smuggling of gold, which is a threat to the State
Economy and the sureties are also of the State of Kerala
and it is difficult to secure presence of accused by serving
notice including to the sureties in the event of his
absconding.
6. The applicant referred G.O.Rt.No.734 Home
(Courts-A) Department, dated 13.03.1981; this Courts
Circular Roc.No.1348/SO/1991, dated 21.10.1991;
Single Judge expression of this Court reported in
Superintendent, Customs And ... vs Elukala
Krishnamachari And Ors. (order in Crl.M.P. No.1188
and 1189 of 1986) and another Division Bench
expression of this Court reported in Fakhuruddin
Sharafali Ampanwala v. State to support the said
contentions.
7. Whereas it is the contention of the counsel for the
accused respondent to this application before this
Court that, the learned Metropolitan Sessions Judge is
right in entertaining the bail application and in granting
the bail under Section 439 of Cr.P.C. as per the law
prevailing and also contended that there is a Judgment of
the Apex Court reported in Omprakash and another v.
Union of India and another (3 Judges Bench) holding
that the offences under Central Excise Act, 1944 and
Customs Act, 1962 are bailable irrespective of term of
imprisonment fixed for said offences in view of Sections
9-A, 19 and 20 of Excise Act, Sections 104(3) & (4) of the
Customs Act and the Excise or Customs Officer cannot
make arrest in respect of said offences without warrant
from Magistrate concerned in the offences which are
bailable; hence there is nothing to interfere with the
order granting bail by the learned Metropolitan Sessions
Judge. It is also the contention that by virtue of the
State reorganisation Act, 2014, without separate
notifications of Government, the jurisdiction of Special
Court remains stand still.
8. Perused the material on record.
9. Before formulating the points for consideration
from the respective contentions supra, it is necessary to
detail the factual matrix which reads as follows:
(a) On 20.03.2014, at 3.20 hours, a passenger by
name Kannur Abdul Khader Mohammed Haneefa, holder
of Indian Passport No.F 0148775 (hereinafter referred to
the respondent-accused), who arrived by flight No.QR
500 from Doha to Hyderabad was intercepted by the
officers of Customs (Air Intelligence Unit), Rajiv Gandhi
International Airport, Shamshabad, Hyderabad in the
arrival hall at the Exit Gate after he has passed through
the Green Channel, without making any true declaration
on disembarkation slip on reasonable belief that he was
carrying contraband goods. On examination of the
disembarkation slip, it was noticed that he was carrying
one hand bag and one checked in baggage and he has
not declared any dutiable goods. When the officers
questioned the respondent accused whether he was
carrying any dutiable goods either in the baggage or
checked in bag, the respondent accused replied in
negative. Then, screening of the hand bag and checked
in bag on the screening machine available in the customs
arrival hall, the officers noticed a dark and suspicious
metal object image in addition to his used clothes and
personal effects in his hand bag. On close examination
of the hand bag of the respondent accused i.e. Kannur
Abdul Khader Mohammed Haneefa in the presence of
witnesses, the officers of Air Intelligence Unit, Rajiv
Gandhi International Airport, Shamshabad, Hyderabad
recovered one small packet wrapped with brown coloured
cellophane tape. On further opening of the said packet,
found 16 yellow coloured rectangular metal bars with
inscription AL ETIHAD DUBAI-UAE 10 TOLO 999.0 (16
Nos.) on the bars. Thereupon, the officers in the
presence of the witnesses and in the presence of the said
passenger weighed the said yellow coloured rectangular
metal bars on the electronically operated weighing
machine available in the International passenger Arrival
Hall, RGAI, Shamshabad, Hyderabad and found each bar
with weight of 116.63 grams. Thereafter, so as to
ascertain the nature of the metal recovered, the officers
called upon the services of Sri B.Ram Kumar Jain,
approved valuer of jewellery appointed by the
Government of India for assaying the items, i.e. gold bars
recovered from the hand bag of the passenger. In the
presence of the officers and in the presence of the
passenger, the assayer i.e. B.Ramkumar Jain,
Government Registered Valuer assayed them and vide his
report of valuation of jewellery dated 20.03.2014 certified
it to be sixteen gold bars of 999 purely weighing 1.866
grams valued at Rs.56,45,860/- (Indian Market Value), in
token of the assay having conducted in their presence
and the officers as well as the passenger have appended
their signatures on the valuation report enclosed to the
Mahazar.
(b) Thereafter, when questioned by the officers in
the presence of the independent witnesses, the
respondent accused while admitting that the recovered
metal was gold informed that the same were received by
him in Doha to hand over to another peson at his village.
The respondent accused further stated, that he
secreted the 16 gold bars in the hand bag by wrapping
them with yellow colored paper to avoid detection by the
customs authorities and to evade payment of Customs
Duty. Thereupon the officers on a reasonable belief that
the 16 gold bars weighing 1.866 kgs. and valued at
Rs.56,45,860/- were smuggled by the respondent
accused with an intention to evade payment of customs
duty payable thereon, being liable for confiscation under
the provisions of the Customs Act, 1962, thus seized the
same along with other documents, under the Mahazar,
dated 20.03.2014.
(c) The respondent accused, Sri Kannur
Abdulkhader Mohammed Haneefa in his statement,
dated 20.03.2014 given before the Superintendent of
Customs (Air Intelligence Unit) Rajiv Gandhi
International Airport, Shamshabad Hyderabad, under
Section108 of Customs Act, 1962, stated that he is a taxi
driver. He further stated that the said 16 Gold bars
weighing 1.866 kgs, were received by him in Doha for
handing over to another person in his village. He further
admitted in the presence of the witnesses that he has not
mentioned about the gold in the disembarkation slip to
avoid detection by Customs Department and to evade
payment of Customs duty.
(d) Thereupon the officers in the presence of the
independent witnesses and the respondent accused
seized the contraband following the due process of law as
envisaged under the customs Act, 1962. It is averred that
the accused confessed to have procured, possessed &
transported having entered into the criminal conspiracy
for smuggling of the contraband. The respondent
accused was arrested and produced before the learned
Special Judge for Trial of Economic Offences, Nampally,
Hyderabad on 20.03.2014 for contravention of Sections
132 & 135 (1)(c) of the Customs Act, 1962 and the
learned Judge remanded the respondent accused to
judicial custody from time to time.
(e) From that the respondent accused filed bail
petition before the learned Special Judge for Economic
Offences cum- VIII Additional Metropolitan Sessions
Judge, Nampally, Hyderabad, numbered as Crl.M.P.
No.905 of 2014 in HQPOR No.43 of 2014 (Supdt, Cus-
Prev) and after the same was ended in dismissal on
27.03.2014; moved another bail application before the
learned Metropolitan Sessions Judge, Hyderabad in
Crl.M.P. No.1464 of 2014 that was allowed, enlarging the
respondent accused on bail on the condition that a
personal bond for Rs.10,000/- with two sureties each for
a like sum to the satisfaction of the Special Court for
Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Hyderabad. While allowing the petition
of the respondent, it was observed that the offence is
bailable.
10. Now the points arise for consideration are,
01. Whether the Metropolitan Sessions Judge has no
jurisdiction to entertain the bail application but for by
the learned Special Judge cum- VIII Additional
Metropolitan Sessions Judge, which is designated as
Special Court, known as Special Judge for Trial of
Economic Offences, more particularly by sitting
against the dismissal order by the Special Judge or
otherwise once bail application is filed before the
Special Judge and disposed off and if so, the impugned
order of the Metropolitan Sessions Judge is liable to be
set aside, with what observations and consequences?
2. To what result?
In Re. Point No.1:
11. Needless to repeat the factual matrix detailed
supra, it is important to note that,
11(a). Section 5 of Cr.P.C. reads that,
Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special
or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time
being in force.
Section 4 of Cr.P.C. reads that,
Trial of offences under the Indian Penal Code
and other laws.
(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to
any enactment for the time being in force regulating
the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.
From the above, it is clear that the Criminal
Procedure Code on the adjectival and Procedural
provisions, equally apply not only for the Indian Penal
Code offences, but also for other offences; leave about
even in investigating, inquiring or trying into I.P.C.
offences and other offences together, but for to the extent
saved by the said provisions of any other law to prevail,
to say the Cr.P.C. provisions are in that area, general law
to the extent special provisions covered those prevail and
in the other areas the Cr.P.C. to apply.
11(b). As per Section 6 of Cr.P.C.
6. Classes Criminal Courts:- Besides the High Courts
and the Courts constituted under any law, other than
this Code, there shall be, in every State, the following
classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any
metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
As per Section 9 of Cr.P.C.,
9. Court of Session:
(1) The State Government shall establish a Court of
Session for every sessions division.
(2) Every Court of Session shall be presided over by a
Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional
Sessions Judges and Assistant Sessions Judges to
exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may
be appointed by the High Court to be also an
Additional Sessions Judge of another division and in
such case he may sit for the disposal of cases at such
place or places in the other division as the High Court
may direct.
(5) Where the office of the Sessions Judge is vacant,
the High Court may make arrangements for the
disposal of any urgent application which is, or may be,
made or pending before such Court of Session by an
Additional or Assistant Sessions Judge, or, if there be
no Additional or Assistant Sessions Judge, by a Chief
Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to
deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting
at such place or places as the High Court may, by
notification, specify; but, if, in any particular case, the
Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to
hold its sittings at any other place in the sessions
division, it may, with the consent of the prosecution
and the accused, sit at that place for the disposal of
the case or the examination of any witness or
witnesses therein. Explanation.- For the purposes of
this Code," appointment" does not include the first
appointment, posting or promotion of a person by the
Government to any Service, or post in connection with
the affairs of the Union or of a State, where under any
law, such appointment, posting or promotion is
required to be made by Government.
As per Section 10 of Cr.P.C.,
10. Subordination of Assistant Sessions Judges.
(1) All Assistant Sessions Judges shall be subordinate
to the Sessions Judge in whose Court they exercise
jurisdiction.
(2) The Sessions Judge may, from time to time, make
rules consistent with this Code, as to the distribution
of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for
the disposal of any urgent application, in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional
or Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall
be deemed to have jurisdiction to deal with any such
application.
As per Section 11 of Cr.P.C.
11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area),
there shall be established as many Courts of Judicial
Magistrates of the first class and of the second class,
and at such places, as the State Government may,
after consultation with the High Court, by notification,
specify. Provided that the State Government may, after
consultation with the High Court, establish, for any
local area, one or more Special Courts of Judicial
Magistrates of the first class or of the second class to
try any particular case or particular class of cases, and
where any such Special Court is established, no other
Court of Magistrate in the local area shall have
jurisdiction to try any case or class of cases for the
trial of which such Special Court of Judicial Magistrate
has been established.
(2) The presiding officers of such Courts shall be
appointed by the High Court.
(3) The High Court may, whenever it appears to it to be
expedient or necessary, confer the powers of a Judicial
Magistrate of the first class or of the second class on
any member of the Judicial Service of the State,
functioning as a Judge in a Civil Court.
As per Section 12 of Cr.P.C.
12. Chief Judicial Magistrate and Additional Chief
Judicial Magistrate, etc.
(1) In every district (not being a metropolitan area), the
High Court shall appoint a Judicial Magistrate of the
first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial
Magistrate of the first class to be an Additional Chief
Judicial Magistrate, and such Magistrate shall have all
or any of the powers of a Chief Judicial Magistrate
under this Code or under any other law for the time
being in force as the High Court may direct.
(3) (a) The High Court may designate any Judicial
Magistrate of the first class in any sub- division as the
Sub- divisional Judicial Magistrate and relieve him of
the responsibilities specified in this section as
occasion requires.
(b) Subject to the general control of the Chief Judicial
Magistrate, every Sub- divisional Judicial Magistrate
shall also have and exercise such powers of
supervision and control over the work of the Judicial
Magistrates (other than Additional Chief Judicial
Magistrates) in the sub- division as the High Court
may, by general or special order, specify in this behalf.
It is also important to say from the designation of
the Special Judge for Trial of Economic Offences as
Special Judge for Trail of Economic Offences cum VIII
Additional Metropolitan Sessions Judge, which is located
at Nampally in Hyderabad, it is part of the Court of
Sessions also being the VIII Additional Metropolitan
Sessions Judge of the Metropolitan Sessions Division of
Hyderabad headed by the Metropolitan Sessions Judge.
The Metropolitan Sessions Division thereby includes
Metropolitan Sessions Judge, Additional Metropolitan
Sessions Judge and Chief Judicial Metropolitan
Magistrates and Metropolitan Magistrates as the case
may be which are part of the Division, from the combined
reading of Sections 6 & 9 to 12 Cr.P.C.
12. As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State
of Andhra Pradesh.
13. In this regard, it is also important to refer the
provisions of Section 19 of the Cr.P.C.,
Subordination of Metropolitan Magistrates.
(1) The Chief Metropolitan Magistrate and every
Additional Chief Metropolitan Magistrate shall be
subordinate to the Sessions Judge; and every other
Metropolitan Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the
Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code,
define the extent of the subordination, if any, of the
Additional Chief Metropolitan Magistrates to the Chief
Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time
to time, make rules or give special orders, consistent
with this Code, as to the distribution of business
among the Metropolitan Magistrates and as to the
allocation of business to an Additional Chief
Metropolitan Magistrate.
As per Section 10 of Cr.P.C., in non metropolitan
areas of any state concerned, all Assistant Sessions
Judges shall be subordinate to the Sessions Judge in
whose control they exercise jurisdiction for distribution of
business among such Assistant Sessions Judges, and the
Sessions Judge may also make provision for the disposal
of any urgent application, by conferring in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional or
Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall be
deemed to have jurisdiction to deal with any such
application.
14. Thus the combined reading of Sections 9, 10
and 12 with Section 19 of Cr.P.C. referred supra, speak
the Special Additional Sessions Judge is not subordinate
to the Sessions Judge, more particularly, for no similar
provision to Section 10 of Cr.P.C., so far as the Additional
Sessions Judges concerned with reference to Section 9(3)
of Cr.P.C. referred supra.
15. From the above provisions of the Criminal
Procedure Code and in this background(supra); coming
to the notifications or circular instructions and the
judicial pronouncements on the jurisdiction concerned:-
The important Circular is of the Government of Andhra
Pradesh (erstwhile) Home (Courts-A) Department, in G.O.
Rt.No.734, dated 13.03.1981, from the heading Courts
Criminal Creating of Special Judges Court in the cadre
of District and Sessions Judge at Hyderabad to deal with
the trial of Economic Offences under the specified
Central Acts Amendment to notification issued; the
references made thereunder were G.O.Ms.No.202, Home
(Courts-A) Department, dated 27.03.1980,
G.O.Rt.No.1967, Home (Courts-A)Department, dated
04.08.1980, proceedings from the Registrar, High Court,
Lr.No.2220/E1/80, dated 29.12.1980 and another letter
No.4324/E1/80, dated 07.02.1981. It therefrom reads as
follows:
NOTIFICATION
In exercise of the powers conferred by the proviso to sub-
section(1) Sub-Section 11 read with clause (J) of Section 2 of the
Code of Criminal Procedure 1973(Central Act 2 of 1974) and after
consultation with the High Court of Andhra Pradesh and in super
cession of the Notification issued by the Government of Andhra
Pradesh in G.O. Rt.No.1967, Home (Courts-A) Department, dated
4th August, 1980, the Governor of Andhra Pradesh hereby:
1) Specifies the whole of the State of Andhra Pradesh as the
local area for the purpose of establishing a special Court
for the offences arising under the enactments mentioned
in the Annexure hereto; and
2) Establishes a Special Court of Judicial Magistrate of the
First Class to try cases, arising under the enactments
mentioned in the annexure hereto, even if such cases
include offences punishable under the Indian Penal Code,
1860 and any other enactments, if such offences form
part of the same transaction and the said court shall be
known, as the Court of the Special Judge for Economic
Offences.
ANNEXURE
01. The Central Excise and Salt Act, 1944
02. The Imports and Exports (Control) Act, 1947
03. The Wealth Tax Act, 1957
04. The Income Tax Act, 1961
05. The Gold (Control) Act, 1968
06. The Foreign Exchange Regulation Act, 1973
07. The Customs Act, 1962
08. The Companies Profit (Surtax) Act, 1964
09. The Gift tax Act 1958
10. The Export (Quality, Control and Inspection) Act, 1963
11. The companies Act, 1956
12. Monopolies and Restrictive Trade Practices Act, 1969.
(By order and in the name of the Governor of Andhra Pradesh)
S.Babu Rao
Deputy Secretary to Government
From the above notification, the preamble of the
notification under the heading special creation of the
Special Judges Court in the cadre of District and
Sessions Judge at Hyderabad to deal with the trial of
Economic offences, the notification was issued and the
notification is in supercession of the earlier notifications.
It reads that the Governor of Andhra Pradesh specifies
the whole of the State of Andhra Pradesh as the local
area for the purpose of establishing a Special Court for
the offences arising under the 12 Acts annexed and
establishes a Special Court of Judicial Magistrate of First
Class to try cases, arising under the enactments
mentioned in the annexure, even if such cases include
offence punishable under the Indian Penal Code and any
other enactments, and the said Court shall be known, as
the Court of the Special Judge for Economic Offences.
16. No doubt, a reading of the above show the
notification is in establishing the Special Court of
Judicial Magistrate of First Class to try the cases
whereas at the heading for creation of the Special Judges
Court in the Cadre of District and Sessions Judge and it
is not even indicating two Courts constituted one of the
Sessions Judge cadre and the other of the Judicial
Magistrate of the First Class cadre (for want of any
committal procedure under any of the enactments within
the purview of Sections 190, 209 & 193 Cr.P.C.), but for
instead of from the above of the Special Judge of the
cadre of the Sessions Judge is also can exercise the
powers of a Magistrate.
17. It is only the Government Order (supra) as on
the date prevailing. In this regard and pursuant to which
the High Court of Andhra Pradesh in
Roc.No.1348/SO/1991, dated 21.10.1991, issued
Circular instructions on the subject of entertaining the
bail applications in the matters pertaining to the
Economic Offences by giving instructions which reads as
under:
It has been brought to the notice of the High
Court that bail applications pertaining to the
Economic Offences Court are entertained by the other
Sessions Judges, who has no jurisdiction. As per the
G.O. Rt. No.734, Home (Courts-A) Department, dated
13.03.1981, a Special Judges Court in the cadre of
District and Sessions Judge at Hyderabad was created
to deal exclusively with the trial of Economic Offences
under the 12 specified Central Acts.
The Practice of entertaining bail applications by
the Courts which have no jurisdiction is quite irregular
in view of the above said G.O. issued in exercise of the
powers conferred by proviso to Sub-Section(1) of
Section 11 read with Clause (j) of Section 2 of the Code
of Criminal Procedure Code, 1973.
In this connection, I am directed to invite your
attention to the specific orders of the High Court,
dated 23.03.1987 passed in Crl.M.P.Nos.1188 and
1189 of 1986 holding that the jurisdiction of the
Sessions Divisions in the State of A.P., has been
excluded and the Special Judge for Economic Offences
alone is competent to consider the application for bail
in Income Tax mattes pending trial before the Court
for Special Judge for Economic Offences, Hyderabad.
I am, therefore, directed to request you to follow
the above decision scrupulously in respect of the
mattes pertaining to the Economic Offences.
Sd/- Registrar (Admn.)
The above circular instructions clearly speak the
Special Judge for Economic Offences is in the cadre of
the District and Sessions Judge and the other Sessions
Judges are having no jurisdiction to entertain any bail
applications under the enactments covered by the
Government notification after the said G.O. Rt.No.734,
dated 13.03.1981.
18. It is to say the Circular instructions also cleared
the cloud saying the Special Judge is in the cadre of
District and Sessions Judge. The Circular further speaks
referring to the earlier circular instructions of this Court,
dated 23.03.1987, after the order passed on
jurisdictional aspects by this (High) Court in
Crl.M.P.No.1188 and 1189 of 1986 holding that the
jurisdiction of the Sessions Divisions in the State of
Andhra Pradesh, has been excluded and the Special
Judge for Economic Offences alone is competent to
consider any application for bail in Income Tax matters
etc., pending (investigation/enquiry/trial) before the
Court of Special Judge for the Economic Offences,
Hyderabad. It is, in this context, important to refer the
Honble Single Judges expression of this Court in
Crl.M.P. Nos.1188 and 1189 of 1986 dated 23.03.1987
reported as Superintendent, Customs and Central
Excise, Range-II, Nellore Division, Nellore, v. Elukala
Krishnamachari and others . The Court referred Section
11(1) and Clause (J) of Section 2 of the Code of Criminal
Procedure with regard to the constitution of Special
Courts and its ambit pursuant to the recommendations
of the Law Commission in its 47th report, the Central
Government since moved the State Government for
setting up of a Special Court in the State of Andhra
Pradesh for dealing with economic offences. The State
Government after consultation with the High Court
established the Special Court for economic offences at
Hyderabad to deal with 12 specified Central Acts. As the
maximum punishment that can be imposed being seven
years rigorous imprisonment under the statute, it has
become necessary to post a presiding officer in the cadre
of District and Sessions Judge as there is no separate
cadre of Chief Judicial Magistrate. The Court has been
invested with the State wide jurisdiction issued under the
proviso to sub-section (1) of Section 11 read with Clause
(J) of Section 2 of Code of Criminal Procedure, 1973. The
Court of the Special Judge for economic offences is
treated as a separate unit by itself and it also held in
respect of bails and anticipatory bails for the offence
under Section 135 of Customs Act that specifically deal
with in that matter, if so, holding jurisdiction by the
Sessions Judge being general jurisdiction is ousted in
these cases and thus the Sessions Judge (Nellore) is not
competent to entertain bail application when additional
Judicial Magistrate dismissed the application stating that
the Special Judge for Economic Offences alone is
competent. Once the Special Judge for Economic Offence
alone is competent, bail granted to the accused by the
learned Sessions Judge, Nellore was held not legal and
thus the bail is to be cancelled under Section 439(2) read
with 438 of Cr.P.C. referring to the Government
notification in G.O.Rt.No.734, dated 13.03.1981 supra.
It was also observed that ouster of jurisdiction of the
ordinary court should not be readily inferred is even well
accepted; once the same is clearly expressed or by
necessary implication by virtue of G.O.Rt.No.734
referring to the 12 enactments in constituting the Special
Court by the Government. If the powers conferred on the
Magistrate with a right to remand the accused for any of
the offence under the 12 enactments specified in the
G.O.Rt.No.734; it is only the Special Judge for economic
offences, that is competent to consider the application for
bail and it is by implication the jurisdiction of the
Sessions Judges has been taken away and the same has
been conferred on the Special Judge, which is entrusted
to try the cases arising under these enactments in the
whole of the State of Andhra Pradesh. It is observed that,
it has been contemplated that the Chief Judicial
Metropolitan Magistrate, though holding the cadre of
District and Sessions Judge, is inferior to Sessions Judge
as per Criminal Procedure Code; but, the Special Court
now constituted under the provisions, is distinct and a
different one and as such the Sessions Judge should not
have entertained the application for bail (also when it was
brought to his notice that the II Additional Judicial I
Class Magistrate, Nellore dismissed the applications with
an observation that the Special Judge for Economic
Offences alone has got jurisdiction to the cases).
As such the Special Judge for Economic Offences
alone is the competent to consider the bail application for
grant of bail and the bail granted by the learned Sessions
Judge is liable to be cancelled is the conclusion, by
referring some of the earlier expressions of this Court
reported in viz., Ishwar Chand v. State , Kuppu Naidu
v. State of A.P. and Gulam Mohd. V. State .
19. Thus the cloud is cleared pursuant to
G.O.Rt.No.734 dated 13.03.1981 and from the expression
of the High Court and the later circular instructions of
this Court by referring to said earlier circular in ROC.
No.1348/SO/1991, dated 21.10.1991.
20. It is even later, there is another the expression
of the Division Bench of this (High) Court headed by the
then Honble the Chief Justice of Andhra Pradesh in
Crl.R.C. No.99 of 1996 & Crl.R.C.No.98 of 1996 by
common order dated 04.08.1997 on the revision filed by
one Fakhruddin Sharafali Ampanwala v. State through
Special Public Prosecutor, referring to the expressions
in Elukala Krishnamachary (1supra), A.R.Antulay v.
R.S. Nayak and R.S. Nayak v. A.R.Antulay , Bharat
Traders v. Special Chief Judicial Magistrate,
Allahabad and Shri Ravi Nandan Sahay, Sessions
Judge, Patna , observed on the query raised as to can
an application for pre arrest bail (anticipatory bail) under
Section 438 of Cr.P.C. be moved before the learned
Metropolitan Sessions Judge, Hyderabad instead of the
Court of Special Judge for Economic Offences cum- VIII
Additional Sessions Judge, Hyderabad. It was held in
answering the query, reiterating the Single Judge
expressions in the case of Elukala Krishnamachari
(1supra) and G.O.Rt.No.734, dated 13.03.1981 and
Cr.P.C. provisions in Chapter XXXIII, particularly,
Section 436 to 439, Sections 11 and Section 2(j) read
with Section 14 with the latest provisions contained in
the Amendment Act, 1978 and the provisions relating to
Prevention of Corruption Act where also a Special Judge
is of the designated cadre of Sessions Judge with
empowerment to take cognizance of the offence directly
under Section 190 of Cr.P.C. without any committal
under Section 209 Cr.P.C. for taking cognizance at post
committal stage under Section 193 Cr.P.C., and the
earlier expressions of the Apex Court under Section 5-A
of the Prevention of Corruption Act, 1947 - reported in
H.N.Rishbud and Inder Singh v. State of Delhi , State
of Uttar Pradesh v. Bhagwan Kishore Joshi , S.N.
Bose v. State of Bihar and P.Sirajuddin v. State of
Madras . All in reference to prevention of Corruption Act
and the provisions of Cr.P.C. the then prevailing having
referred to the earlier expressions that even in respect of
cases which are triable by the Court of Sessions, but
then this would create a conflict that can be resolved by
treating, although called a Magistrate, the Special Court
as the Sessions Court and also referred, in this regard,
Sections 26, 28 & 29 of Cr.P.C. regarding the power of
Sentence that to be passed by the Court of Sessions and
the Chief Judicial Magistrate or Chief Metropolitan
Magistrate and the Judicial First Class Magistrate and
the Metropolitan Magistrates etc., and concluded
ultimately at para 13 that there is no manner of doubt
that the Special Court, although called the Special Court
of Judicial Magistrate of First Class, is also a Court of
Session, and as the Court of Session has all the powers
to act under various provisions of Chapter XXXIII of the
Code of Criminal Procedure including for entertaining the
applications for anticipatory bail under Section 438 of
Code of Criminal Procedure. Once the Special Court has
the jurisdiction in the matters as above, it would be
creating conflict of jurisdiction if in addition to a Court of
Session which is specially designated for such matters
the regular Court of Session also is recognised as one
empowered to grant bail under Cr.P.C. It will be, in our
view, not legitimate only to retain the jurisdiction of the
Special Court of Economic Offences for all purposes,
other than the grant of anticipatory bail and recognise
such power of granting anticipatory bail in the Sessions
Court of the district in which the offence is allegedly
committed of which the Court has otherwise jurisdiction
in the matter. Accordingly it was answered as follows:
01. Special Court of Economic Offences being a Court
having jurisdiction through out the State is alone
empowered to take cognizance of the offences which
are referable to the special enactments in the
Annexure to the notification under which the Special
Court has been created and to act for all purposes in
Chapter XXXIII of the Code of Criminal Procedure
including for granting anticipatory bail;
02. Jurisdiction of the regular Court of Session to the
extent of the offences under the Acts which are
mentioned in the annexure to the notification
creating the Special Court of Economic Offences is
excluded. Persons apprehending arrest for the
offences under any of such Acts can move the Special
Court of Economic Offences for anticipatory bail and
not the regular Court of Session.
Thus the Division Bench expression of this Court
also cleared any little cloud if remaining, in its categorical
saying of bail application under chapter XXXIII of
Cr.P.C., touching any of the offences under the 12
enactments enumerated by the G.O. (supra) is conferring
jurisdiction only on the Special Judge for Economic
Offences, for the entire State. Thus, that alone got
jurisdiction which is the Court of Session as a separate
unit including the powers of Magistrate and no other
Court including any other Court of Session has any other
power to entertain any bail application. Though not
necessary thereby, but for reference to say that this
Court, in the course of hearing, addressed the Registry as
to any other circular instructions after the references
supra, in particular, after the Honble Division Bench
expression in Fhakruddin Sharafali Ampanwala v.
State (2supra). The answer received is in negative, saying
no further circulars have been issued in this regard as it
appears. In fact one proceeding of this Court in
ROC.No.1970/E1/2005 of the Registrar (Vigilance), dated
21.06.2013, supplied by the Registry later speak that, it
was addressed to the Metropolitan Sessions Judge,
Hyderabad that Money Laundering Act, 2002 -
Designation of XXI Additional Chief Metropolitan
Magistrates Court Nampally, Hyderabad as Court of
Session as per the orders issued by the Government of
Andhra Pradesh pursuant to the notification issued by
the Government of India extraordinary Part-II, No.1028,
dated 08.05.2013 as the Special Court for trial of
Offences in respect of all the cases connected with
M/s.Satyam Computer Services (SCSL) under Section 9
of Cr.P.C. and G.O.Ms. No.34, Law (LA & J Home Courts
C) Department, dated 02.04.2013. It is in fact, the
Money Laundering Act, 2002 not specifically covered in
the G.O.Rt.No.734 among the annexure - 12 enactments;
apart from the same confined to that particular case
under trial and not a general conferment of the Special
Jurisdiction under the enactment even and thereby,
nothing more is required to be discussed with reference
to the said proceeding, which is only the existing Court
for the limited purpose to deal with the scope of the Act
in relation to the crime covered by the Act and other
offences that is dealing by a particular court for the
purpose of its empowering adjudication of the lis
efficaciously, touching the offence covered by the
provisions of that Act also. It is also need less to say, but
for in the context from a little relevancy that, all the
District and Sessions Judges in the State and the
Metropolitan Sessions Judges equally, in particular,
under Section 11(2) Cr.P.C. are appointed by the High
Court to exercise the powers of a Judicial Magistrate of
First Class under the Code of Criminal Procedure covered
by the High Courts general notification
Roc.No.25/SO/74 I dated 14.08.1974 and the same
was also referred by sanctifying the same and the
subsequent circular instructions of this Court under
Section 11(2) of Cr.P.C. in Roc.No.1354/SO/82, dated
21.09.1982, the Additional District & Sessions Judge
functioning in the District Head-Quarter also being the
Chief Judicial Magistrate for the respective Districts and
confers on them all the powers, for no proceedings are
separately required for each Additional District and
Sessions Judge; and in a dispute raised before a Division
Bench of this Court regarding taking of cognizance under
Sections 190 read with 200 of Cr.P.C. on a private
complaint for the offence under Section 138 of N.I. Act by
the Additional District Judge, Nalgonda, when impugned,
the same was upheld by the Honble Division Bench of
this Court in K.Sudarshana Chari v. G.Saidulu and
others holding that the above circular instructions
covered the area of taking cognizance even as Judicial
Magistrate of First Class under Section 138 of N.I. Act
read with 190 of Cr.P.C. by the additional District &
Sessions Judge is not illegal and thus there is nothing to
impugn the same. In a similar situation in relation to
Section 9(2) of Cr.P.C. read with 2(1)(i) Cr.P.C. another
Honble Division Bench of this Court in Patel Sudhakar
Reddy v. The Registrar (Administration) High Court
and Ors. held that the High Court, under Section 9
Sub-Sections (2) and (3) of the Code of Criminal
Procedure, shall appoint a Session Judge, Additional
Sessions Judge/s and Assistant Sessions Judge/s for
every Court of Sessions and the definition of District
Judge in Article 236 of Constitution of India including
the Sessions Judge is only for a limited purpose of
Chapter 6 of Part VI of the Constitution of India and
cannot be taken in aid for interpreting the expression
here in this context of the lis and reference to the then
designation in the cadre of Grade II and Grade I of the
then District Judge of Andhra Pradesh State Higher
Judicial Service not makes difference and also held that
no separate notification need be issued whenever the
District Judge is appointed as a Sessions Judge from the
general notification in Roc.No.25/SO/74, dated
14.08.1974 that was issued under Section 9 of Code of
Criminal Procedure, and further by G.O.Ms.No.518 dated
29.10.1987, the II Additional Metropolitan Sessions
Judge of the Metropolitan Sessions Court, Hyderabad is
appointed as Additional Judge to exercise jurisdiction of
the designated Court constituted for Metropolitan
Sessions Division for the offence under TADA Act, 1987
and the said composite notification no way invalid and
those are held suffice. There is another circular
instruction of the High Court in Roc.No.510/SO-1/2002
dated 02.09.2002, which is as per the Honble Apex
Court direction in giving clarifications that the designated
the then Additional District Judge as chief Judicial
Magistrates (as per the circular instructions referred
supra), by virtue of the directions of the Honble Apex
Court, the designation of the Senior Civil Judge cum
Assistant Sessions Judges as Chief Judicial Magistrates
and the Chief Metropolitan Magistrates and also with
reference to the understanding of the same in its
referring to the Criminal Rules of Practice and the
Circulars orders of 1990, in saying amendment to the
relevant Rule in that behalf that was stated to be issued
shortly. In fact it was also issued in taking care of.
22. It is also necessary to refer in this context the
Apex Courts expression in State by Central Bureau of
Investigation, Appellant v. S.Bangarappa,
Respondent in dealing with the prevention of
Corruption Act, 1988 for trial of offences specified under
Section 3 of the Act by Special Judge in pointing out the
name of the Presiding Judge holding the Court in the
notification empowering the Civil and Sessions Judge,
Bangalore; it was held by the Apex Court that even if no
Court is empowered, the criminal proceedings can be
kept in abeyance till Government issues Notification
conferring power of competent Court. In fact that
difficulty also does not arise in this case as the offence
occurred prior to the coming into force of the Andhra
Pradesh State Re-organisation Act, 2014 w.e.f.
02.06.2014, apart from the fact that the place of offence
is within the newly formed State of Telangana and the
designated Court is also within the area of the Stte as per
the Act, 2014. Thus, it is only for the offences taken
place after dated 02.06.2014 within the jurisdiction of
the State of Andhra Pradesh (consisting of Andhra &
Rayalaseema regions), a separate notificate is required
from the Government concerned conferring jurisdiction
on any one or more Courts of the State of Andhra
Pradesh and till then, the Registry of the High Court can
take care of by issuing necessary circular instructions,
pursuant to the Apex Courts expression in
S.Bangarappa (supra).
23. From the above, coming to the facts, the
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons. Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue. The above
conclusion draws support from expression of Lord
Denning Quoted in Land marks in the law (Butterworths)
at page 62; from Christopher St. Germans doctor &
Student Chapter XVI Page 45 as the following:
Judges should not go by the letter by the intendment
of the Statute in giving interpretation, by doing what
the makers of statute would have done if they had
thought of it and filling in gaps accordingly
The judges may judge after the mind of the makers
so far as the latter may suffer A judge must not alter the
material of which it is woven, but he can & should iron
out the creases.
24. Having regard to the above, the learned
Metropolitan Sessions Judge has no right at all to
entertain much less to grant bail and the bail order
granted is unsustainable and thereby the bail order,
dated 23.04.2014, in Crl.M.P. No.1464 of 2014 is liable
to be set aside. It is in this context to be kept in mind
that, as per the Apex Courts expression relied on by the
accused respondent to this application that is
Omprakash (3supra) the offence under the Excise Act
and the Customs Act in view of Section 9-A, 19 and 20 of
Excise Act and Sections 103 and 104 of Customs Act are
bailable irrespective of the term of imprisonment fixed for
said offence (irrespective what is contained in schedule II
of Cr.P.C.).
25. Thus, to subserve the ends of justice any by
invoking the inherent powers under Section 482 Cr.P.C.,
the bail order to be kept in force for one week from today
instead of cancelling forthwith and by directing the
respondent accused herein meanwhile to surrender
himself before the learned Special Judge for Economic
Offences, under Section 44 of Cr.P.C. to take him in to
custody and move for regular bail afresh to entertain the
said bail application of the accused respondent herein
and to decide afresh including as to the same is bailable
or non bailable as the case may be and for granting bail
subject to such conditions necessary which may not
influence to the conditions imposed by the learned
Metropolitan Sessions Judge in the impugned order since
held without Jurisdiction in granting bail as the
conditions may include furnishing of full and correct
address with proof with bank account particulars,
passport particulars and surrender of passport, if any,
attending to the investigation, assurance of availability
and securing his presence before Court, non-interference
with witnesses particularly the mediators to the
panchanama and the like. Accordingly, the point I is
answered.
In Re. Point No.2:
26. In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile,
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.
____________________________
Dr. B.SIVA SANKARA RAO
Dt.06.08.2014
As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State
of Andhra Pradesh. =
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons. Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue.=
In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile,
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11815
THE HONBLE Dr. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
06-08-2014
The Superintendent of Customs (Cus-Prev) Hyderabad-II Commissionerate, Hqrs
Office Kendriya Shulk Bhavan, Basheer Bagh, Hyderabad-500004 rep. by Special
P.P. Petitioner/ Complainant
Kannur Abdul Kader Mohammed HaneefaS/o. Sri Abdul Khader Kannur Bayan Kunhi,
Age: 33 years, r/o. Penne House, 1/90(50)Sooramsani Kannur Post,Kasargod
District-671321
Kerala State Respondent/ Accused
Counsel for the Petitioner/ Complainant : Sri U.L.N. Sudhakar
Special Public Prosecutor
for Customs, Hyderabad.
Counsel for Respondent/ Accused : M.Jagadish Kumar,
Counsel for respondent.
<Gist:
>Head Note:
? Cases referred:
01. 1987 ELT 324 (AP)
02. 1997(2) ALT (Crl.) 529 (DB) (AP)
03. 2012(3) SCC Crl.1249
04. 1987(32) ELT 324
05. 1976 (1) Crl LJ page 386
06. 1985(3) (AP) Crl. LJ Short notes 15
07. 1959 Madya Pradesh 147
08. AIR 1984 SC 718
09. AIR 1984 SC 684
10. 1988 Crl.L.J. 1117
11. 1993 Crl.L.J. 2436
12. AIR 1955 SC 196
13. AIR 1964 SC 221
14. AIR 1968 SC 1292
15. AIR 1971 SC 520
16. 1996(4)ALD 490 DB
17. 1995(3) ALD 254
18. 2001 (Crl.) L.J. 111
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CRIMINAL PETITION No.5846 OF 2014
ORDER:
This Criminal Petition is filed against the order in
Crl.M.P. No.1464 of 2014 in Crime No.HQ. POR. No.43 of
2014-CUS-PREV., of the Superintendent of Customs,
Hydeabad-II, Commissionerate, Basheerbagh.
02. The petitioner herein is the complainant and
the respondent is the sole accused of the above referred
crime registered against him for the offences punishable
under Sections 132 and 135 of the Customs Act, 1962,
where he was taken to judicial custody in the pending
crime by the Special Judge for Trial of Economic Offences
(the designated Court).
03. The accused, who moved for regular bail before
the learned Special Judge went unsuccessful, again
moved to the Metropolitan Sessions Judge, who granted
the regular bail under Section 439 of Criminal Procedure
Code, 1973 (in short, Cr.P.C.). By impugning the said
order, the present revision is filed seeking to cancel the
bail order including on the contention that the learned
Sessions Judge has no jurisdiction in granting the bail.
04. Heard both sides.
05. The contentions in support of the averments in
application impugning the bail order in seeking for its
cancellation are that, the learned Special Judge for Trial
of Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Nampally (designated as Special Court)
once dismissed the application for bail, in Criminal
Petition No.905 of 2014, on 27.03.2014; the learned
Metropolitan Sessions Judge could not entertain another
bail application, much less, by sitting against to grant
the bail covered by the impugned order in Crl.P.M.P.
No.1464 of 2014, dated 23.04.2014 and hence the said
order is liable to be set aside, more particularly, for want
of jurisdiction. The other contentions are that granting of
the bail only by imposing a condition of bond of
Rs.10,000/- each to the satisfaction of Special Judge for
Trial of Economic Offences -cum- VIII Additional
Metropolitan Sessions Judge is untenable, also from the
fact of not considered of the accused person is from
Kerala State and there is every chance of his absconding,
the investigation is in progress, the crime is of a serious
nature in smuggling of gold, which is a threat to the State
Economy and the sureties are also of the State of Kerala
and it is difficult to secure presence of accused by serving
notice including to the sureties in the event of his
absconding.
6. The applicant referred G.O.Rt.No.734 Home
(Courts-A) Department, dated 13.03.1981; this Courts
Circular Roc.No.1348/SO/1991, dated 21.10.1991;
Single Judge expression of this Court reported in
Superintendent, Customs And ... vs Elukala
Krishnamachari And Ors. (order in Crl.M.P. No.1188
and 1189 of 1986) and another Division Bench
expression of this Court reported in Fakhuruddin
Sharafali Ampanwala v. State to support the said
contentions.
7. Whereas it is the contention of the counsel for the
accused respondent to this application before this
Court that, the learned Metropolitan Sessions Judge is
right in entertaining the bail application and in granting
the bail under Section 439 of Cr.P.C. as per the law
prevailing and also contended that there is a Judgment of
the Apex Court reported in Omprakash and another v.
Union of India and another (3 Judges Bench) holding
that the offences under Central Excise Act, 1944 and
Customs Act, 1962 are bailable irrespective of term of
imprisonment fixed for said offences in view of Sections
9-A, 19 and 20 of Excise Act, Sections 104(3) & (4) of the
Customs Act and the Excise or Customs Officer cannot
make arrest in respect of said offences without warrant
from Magistrate concerned in the offences which are
bailable; hence there is nothing to interfere with the
order granting bail by the learned Metropolitan Sessions
Judge. It is also the contention that by virtue of the
State reorganisation Act, 2014, without separate
notifications of Government, the jurisdiction of Special
Court remains stand still.
8. Perused the material on record.
9. Before formulating the points for consideration
from the respective contentions supra, it is necessary to
detail the factual matrix which reads as follows:
(a) On 20.03.2014, at 3.20 hours, a passenger by
name Kannur Abdul Khader Mohammed Haneefa, holder
of Indian Passport No.F 0148775 (hereinafter referred to
the respondent-accused), who arrived by flight No.QR
500 from Doha to Hyderabad was intercepted by the
officers of Customs (Air Intelligence Unit), Rajiv Gandhi
International Airport, Shamshabad, Hyderabad in the
arrival hall at the Exit Gate after he has passed through
the Green Channel, without making any true declaration
on disembarkation slip on reasonable belief that he was
carrying contraband goods. On examination of the
disembarkation slip, it was noticed that he was carrying
one hand bag and one checked in baggage and he has
not declared any dutiable goods. When the officers
questioned the respondent accused whether he was
carrying any dutiable goods either in the baggage or
checked in bag, the respondent accused replied in
negative. Then, screening of the hand bag and checked
in bag on the screening machine available in the customs
arrival hall, the officers noticed a dark and suspicious
metal object image in addition to his used clothes and
personal effects in his hand bag. On close examination
of the hand bag of the respondent accused i.e. Kannur
Abdul Khader Mohammed Haneefa in the presence of
witnesses, the officers of Air Intelligence Unit, Rajiv
Gandhi International Airport, Shamshabad, Hyderabad
recovered one small packet wrapped with brown coloured
cellophane tape. On further opening of the said packet,
found 16 yellow coloured rectangular metal bars with
inscription AL ETIHAD DUBAI-UAE 10 TOLO 999.0 (16
Nos.) on the bars. Thereupon, the officers in the
presence of the witnesses and in the presence of the said
passenger weighed the said yellow coloured rectangular
metal bars on the electronically operated weighing
machine available in the International passenger Arrival
Hall, RGAI, Shamshabad, Hyderabad and found each bar
with weight of 116.63 grams. Thereafter, so as to
ascertain the nature of the metal recovered, the officers
called upon the services of Sri B.Ram Kumar Jain,
approved valuer of jewellery appointed by the
Government of India for assaying the items, i.e. gold bars
recovered from the hand bag of the passenger. In the
presence of the officers and in the presence of the
passenger, the assayer i.e. B.Ramkumar Jain,
Government Registered Valuer assayed them and vide his
report of valuation of jewellery dated 20.03.2014 certified
it to be sixteen gold bars of 999 purely weighing 1.866
grams valued at Rs.56,45,860/- (Indian Market Value), in
token of the assay having conducted in their presence
and the officers as well as the passenger have appended
their signatures on the valuation report enclosed to the
Mahazar.
(b) Thereafter, when questioned by the officers in
the presence of the independent witnesses, the
respondent accused while admitting that the recovered
metal was gold informed that the same were received by
him in Doha to hand over to another peson at his village.
The respondent accused further stated, that he
secreted the 16 gold bars in the hand bag by wrapping
them with yellow colored paper to avoid detection by the
customs authorities and to evade payment of Customs
Duty. Thereupon the officers on a reasonable belief that
the 16 gold bars weighing 1.866 kgs. and valued at
Rs.56,45,860/- were smuggled by the respondent
accused with an intention to evade payment of customs
duty payable thereon, being liable for confiscation under
the provisions of the Customs Act, 1962, thus seized the
same along with other documents, under the Mahazar,
dated 20.03.2014.
(c) The respondent accused, Sri Kannur
Abdulkhader Mohammed Haneefa in his statement,
dated 20.03.2014 given before the Superintendent of
Customs (Air Intelligence Unit) Rajiv Gandhi
International Airport, Shamshabad Hyderabad, under
Section108 of Customs Act, 1962, stated that he is a taxi
driver. He further stated that the said 16 Gold bars
weighing 1.866 kgs, were received by him in Doha for
handing over to another person in his village. He further
admitted in the presence of the witnesses that he has not
mentioned about the gold in the disembarkation slip to
avoid detection by Customs Department and to evade
payment of Customs duty.
(d) Thereupon the officers in the presence of the
independent witnesses and the respondent accused
seized the contraband following the due process of law as
envisaged under the customs Act, 1962. It is averred that
the accused confessed to have procured, possessed &
transported having entered into the criminal conspiracy
for smuggling of the contraband. The respondent
accused was arrested and produced before the learned
Special Judge for Trial of Economic Offences, Nampally,
Hyderabad on 20.03.2014 for contravention of Sections
132 & 135 (1)(c) of the Customs Act, 1962 and the
learned Judge remanded the respondent accused to
judicial custody from time to time.
(e) From that the respondent accused filed bail
petition before the learned Special Judge for Economic
Offences cum- VIII Additional Metropolitan Sessions
Judge, Nampally, Hyderabad, numbered as Crl.M.P.
No.905 of 2014 in HQPOR No.43 of 2014 (Supdt, Cus-
Prev) and after the same was ended in dismissal on
27.03.2014; moved another bail application before the
learned Metropolitan Sessions Judge, Hyderabad in
Crl.M.P. No.1464 of 2014 that was allowed, enlarging the
respondent accused on bail on the condition that a
personal bond for Rs.10,000/- with two sureties each for
a like sum to the satisfaction of the Special Court for
Economic Offences cum- VIII Additional Metropolitan
Sessions Judge, Hyderabad. While allowing the petition
of the respondent, it was observed that the offence is
bailable.
10. Now the points arise for consideration are,
01. Whether the Metropolitan Sessions Judge has no
jurisdiction to entertain the bail application but for by
the learned Special Judge cum- VIII Additional
Metropolitan Sessions Judge, which is designated as
Special Court, known as Special Judge for Trial of
Economic Offences, more particularly by sitting
against the dismissal order by the Special Judge or
otherwise once bail application is filed before the
Special Judge and disposed off and if so, the impugned
order of the Metropolitan Sessions Judge is liable to be
set aside, with what observations and consequences?
2. To what result?
In Re. Point No.1:
11. Needless to repeat the factual matrix detailed
supra, it is important to note that,
11(a). Section 5 of Cr.P.C. reads that,
Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special
or local law for the time being in force, or any special
jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time
being in force.
Section 4 of Cr.P.C. reads that,
Trial of offences under the Indian Penal Code
and other laws.
(1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to
any enactment for the time being in force regulating
the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.
From the above, it is clear that the Criminal
Procedure Code on the adjectival and Procedural
provisions, equally apply not only for the Indian Penal
Code offences, but also for other offences; leave about
even in investigating, inquiring or trying into I.P.C.
offences and other offences together, but for to the extent
saved by the said provisions of any other law to prevail,
to say the Cr.P.C. provisions are in that area, general law
to the extent special provisions covered those prevail and
in the other areas the Cr.P.C. to apply.
11(b). As per Section 6 of Cr.P.C.
6. Classes Criminal Courts:- Besides the High Courts
and the Courts constituted under any law, other than
this Code, there shall be, in every State, the following
classes of Criminal Courts, namely:-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any
metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
As per Section 9 of Cr.P.C.,
9. Court of Session:
(1) The State Government shall establish a Court of
Session for every sessions division.
(2) Every Court of Session shall be presided over by a
Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional
Sessions Judges and Assistant Sessions Judges to
exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may
be appointed by the High Court to be also an
Additional Sessions Judge of another division and in
such case he may sit for the disposal of cases at such
place or places in the other division as the High Court
may direct.
(5) Where the office of the Sessions Judge is vacant,
the High Court may make arrangements for the
disposal of any urgent application which is, or may be,
made or pending before such Court of Session by an
Additional or Assistant Sessions Judge, or, if there be
no Additional or Assistant Sessions Judge, by a Chief
Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to
deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting
at such place or places as the High Court may, by
notification, specify; but, if, in any particular case, the
Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to
hold its sittings at any other place in the sessions
division, it may, with the consent of the prosecution
and the accused, sit at that place for the disposal of
the case or the examination of any witness or
witnesses therein. Explanation.- For the purposes of
this Code," appointment" does not include the first
appointment, posting or promotion of a person by the
Government to any Service, or post in connection with
the affairs of the Union or of a State, where under any
law, such appointment, posting or promotion is
required to be made by Government.
As per Section 10 of Cr.P.C.,
10. Subordination of Assistant Sessions Judges.
(1) All Assistant Sessions Judges shall be subordinate
to the Sessions Judge in whose Court they exercise
jurisdiction.
(2) The Sessions Judge may, from time to time, make
rules consistent with this Code, as to the distribution
of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for
the disposal of any urgent application, in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional
or Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall
be deemed to have jurisdiction to deal with any such
application.
As per Section 11 of Cr.P.C.
11. Courts of Judicial Magistrates.
(1) In every district (not being a metropolitan area),
there shall be established as many Courts of Judicial
Magistrates of the first class and of the second class,
and at such places, as the State Government may,
after consultation with the High Court, by notification,
specify. Provided that the State Government may, after
consultation with the High Court, establish, for any
local area, one or more Special Courts of Judicial
Magistrates of the first class or of the second class to
try any particular case or particular class of cases, and
where any such Special Court is established, no other
Court of Magistrate in the local area shall have
jurisdiction to try any case or class of cases for the
trial of which such Special Court of Judicial Magistrate
has been established.
(2) The presiding officers of such Courts shall be
appointed by the High Court.
(3) The High Court may, whenever it appears to it to be
expedient or necessary, confer the powers of a Judicial
Magistrate of the first class or of the second class on
any member of the Judicial Service of the State,
functioning as a Judge in a Civil Court.
As per Section 12 of Cr.P.C.
12. Chief Judicial Magistrate and Additional Chief
Judicial Magistrate, etc.
(1) In every district (not being a metropolitan area), the
High Court shall appoint a Judicial Magistrate of the
first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial
Magistrate of the first class to be an Additional Chief
Judicial Magistrate, and such Magistrate shall have all
or any of the powers of a Chief Judicial Magistrate
under this Code or under any other law for the time
being in force as the High Court may direct.
(3) (a) The High Court may designate any Judicial
Magistrate of the first class in any sub- division as the
Sub- divisional Judicial Magistrate and relieve him of
the responsibilities specified in this section as
occasion requires.
(b) Subject to the general control of the Chief Judicial
Magistrate, every Sub- divisional Judicial Magistrate
shall also have and exercise such powers of
supervision and control over the work of the Judicial
Magistrates (other than Additional Chief Judicial
Magistrates) in the sub- division as the High Court
may, by general or special order, specify in this behalf.
It is also important to say from the designation of
the Special Judge for Trial of Economic Offences as
Special Judge for Trail of Economic Offences cum VIII
Additional Metropolitan Sessions Judge, which is located
at Nampally in Hyderabad, it is part of the Court of
Sessions also being the VIII Additional Metropolitan
Sessions Judge of the Metropolitan Sessions Division of
Hyderabad headed by the Metropolitan Sessions Judge.
The Metropolitan Sessions Division thereby includes
Metropolitan Sessions Judge, Additional Metropolitan
Sessions Judge and Chief Judicial Metropolitan
Magistrates and Metropolitan Magistrates as the case
may be which are part of the Division, from the combined
reading of Sections 6 & 9 to 12 Cr.P.C.
12. As per the above provisions, the Special Judge
for Trial of Economic Offences, at Nampally, in
Hyderabad constituted (for the erstwhile State of A.P. in
its entirety), by conferring jurisdiction. Now, from the
Andhra Pradesh State reorganization Act, 2014, which
came into force with effect from 02.06.2014, needless to
say it requires re-designation of two Courts for the two
States i.e. one the existing Special Court lying in the area
of State of Telangana and the other in any Metropolitan
units of the State of Andhra Pradesh like in
Visakhapatnam or Vijayawada or the like; as the State is
divided into two States after formation of new State of
Telangana for the Telangana Region and for the other
regions of Rayalaseema and Andhra remains as the State
of Andhra Pradesh.
13. In this regard, it is also important to refer the
provisions of Section 19 of the Cr.P.C.,
Subordination of Metropolitan Magistrates.
(1) The Chief Metropolitan Magistrate and every
Additional Chief Metropolitan Magistrate shall be
subordinate to the Sessions Judge; and every other
Metropolitan Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the
Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code,
define the extent of the subordination, if any, of the
Additional Chief Metropolitan Magistrates to the Chief
Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time
to time, make rules or give special orders, consistent
with this Code, as to the distribution of business
among the Metropolitan Magistrates and as to the
allocation of business to an Additional Chief
Metropolitan Magistrate.
As per Section 10 of Cr.P.C., in non metropolitan
areas of any state concerned, all Assistant Sessions
Judges shall be subordinate to the Sessions Judge in
whose control they exercise jurisdiction for distribution of
business among such Assistant Sessions Judges, and the
Sessions Judge may also make provision for the disposal
of any urgent application, by conferring in the event of
his absence or inability to act, by an Additional or
Assistant Sessions Judge, or, if there be no Additional or
Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall be
deemed to have jurisdiction to deal with any such
application.
14. Thus the combined reading of Sections 9, 10
and 12 with Section 19 of Cr.P.C. referred supra, speak
the Special Additional Sessions Judge is not subordinate
to the Sessions Judge, more particularly, for no similar
provision to Section 10 of Cr.P.C., so far as the Additional
Sessions Judges concerned with reference to Section 9(3)
of Cr.P.C. referred supra.
15. From the above provisions of the Criminal
Procedure Code and in this background(supra); coming
to the notifications or circular instructions and the
judicial pronouncements on the jurisdiction concerned:-
The important Circular is of the Government of Andhra
Pradesh (erstwhile) Home (Courts-A) Department, in G.O.
Rt.No.734, dated 13.03.1981, from the heading Courts
Criminal Creating of Special Judges Court in the cadre
of District and Sessions Judge at Hyderabad to deal with
the trial of Economic Offences under the specified
Central Acts Amendment to notification issued; the
references made thereunder were G.O.Ms.No.202, Home
(Courts-A) Department, dated 27.03.1980,
G.O.Rt.No.1967, Home (Courts-A)Department, dated
04.08.1980, proceedings from the Registrar, High Court,
Lr.No.2220/E1/80, dated 29.12.1980 and another letter
No.4324/E1/80, dated 07.02.1981. It therefrom reads as
follows:
NOTIFICATION
In exercise of the powers conferred by the proviso to sub-
section(1) Sub-Section 11 read with clause (J) of Section 2 of the
Code of Criminal Procedure 1973(Central Act 2 of 1974) and after
consultation with the High Court of Andhra Pradesh and in super
cession of the Notification issued by the Government of Andhra
Pradesh in G.O. Rt.No.1967, Home (Courts-A) Department, dated
4th August, 1980, the Governor of Andhra Pradesh hereby:
1) Specifies the whole of the State of Andhra Pradesh as the
local area for the purpose of establishing a special Court
for the offences arising under the enactments mentioned
in the Annexure hereto; and
2) Establishes a Special Court of Judicial Magistrate of the
First Class to try cases, arising under the enactments
mentioned in the annexure hereto, even if such cases
include offences punishable under the Indian Penal Code,
1860 and any other enactments, if such offences form
part of the same transaction and the said court shall be
known, as the Court of the Special Judge for Economic
Offences.
ANNEXURE
01. The Central Excise and Salt Act, 1944
02. The Imports and Exports (Control) Act, 1947
03. The Wealth Tax Act, 1957
04. The Income Tax Act, 1961
05. The Gold (Control) Act, 1968
06. The Foreign Exchange Regulation Act, 1973
07. The Customs Act, 1962
08. The Companies Profit (Surtax) Act, 1964
09. The Gift tax Act 1958
10. The Export (Quality, Control and Inspection) Act, 1963
11. The companies Act, 1956
12. Monopolies and Restrictive Trade Practices Act, 1969.
(By order and in the name of the Governor of Andhra Pradesh)
S.Babu Rao
Deputy Secretary to Government
From the above notification, the preamble of the
notification under the heading special creation of the
Special Judges Court in the cadre of District and
Sessions Judge at Hyderabad to deal with the trial of
Economic offences, the notification was issued and the
notification is in supercession of the earlier notifications.
It reads that the Governor of Andhra Pradesh specifies
the whole of the State of Andhra Pradesh as the local
area for the purpose of establishing a Special Court for
the offences arising under the 12 Acts annexed and
establishes a Special Court of Judicial Magistrate of First
Class to try cases, arising under the enactments
mentioned in the annexure, even if such cases include
offence punishable under the Indian Penal Code and any
other enactments, and the said Court shall be known, as
the Court of the Special Judge for Economic Offences.
16. No doubt, a reading of the above show the
notification is in establishing the Special Court of
Judicial Magistrate of First Class to try the cases
whereas at the heading for creation of the Special Judges
Court in the Cadre of District and Sessions Judge and it
is not even indicating two Courts constituted one of the
Sessions Judge cadre and the other of the Judicial
Magistrate of the First Class cadre (for want of any
committal procedure under any of the enactments within
the purview of Sections 190, 209 & 193 Cr.P.C.), but for
instead of from the above of the Special Judge of the
cadre of the Sessions Judge is also can exercise the
powers of a Magistrate.
17. It is only the Government Order (supra) as on
the date prevailing. In this regard and pursuant to which
the High Court of Andhra Pradesh in
Roc.No.1348/SO/1991, dated 21.10.1991, issued
Circular instructions on the subject of entertaining the
bail applications in the matters pertaining to the
Economic Offences by giving instructions which reads as
under:
It has been brought to the notice of the High
Court that bail applications pertaining to the
Economic Offences Court are entertained by the other
Sessions Judges, who has no jurisdiction. As per the
G.O. Rt. No.734, Home (Courts-A) Department, dated
13.03.1981, a Special Judges Court in the cadre of
District and Sessions Judge at Hyderabad was created
to deal exclusively with the trial of Economic Offences
under the 12 specified Central Acts.
The Practice of entertaining bail applications by
the Courts which have no jurisdiction is quite irregular
in view of the above said G.O. issued in exercise of the
powers conferred by proviso to Sub-Section(1) of
Section 11 read with Clause (j) of Section 2 of the Code
of Criminal Procedure Code, 1973.
In this connection, I am directed to invite your
attention to the specific orders of the High Court,
dated 23.03.1987 passed in Crl.M.P.Nos.1188 and
1189 of 1986 holding that the jurisdiction of the
Sessions Divisions in the State of A.P., has been
excluded and the Special Judge for Economic Offences
alone is competent to consider the application for bail
in Income Tax mattes pending trial before the Court
for Special Judge for Economic Offences, Hyderabad.
I am, therefore, directed to request you to follow
the above decision scrupulously in respect of the
mattes pertaining to the Economic Offences.
Sd/- Registrar (Admn.)
The above circular instructions clearly speak the
Special Judge for Economic Offences is in the cadre of
the District and Sessions Judge and the other Sessions
Judges are having no jurisdiction to entertain any bail
applications under the enactments covered by the
Government notification after the said G.O. Rt.No.734,
dated 13.03.1981.
18. It is to say the Circular instructions also cleared
the cloud saying the Special Judge is in the cadre of
District and Sessions Judge. The Circular further speaks
referring to the earlier circular instructions of this Court,
dated 23.03.1987, after the order passed on
jurisdictional aspects by this (High) Court in
Crl.M.P.No.1188 and 1189 of 1986 holding that the
jurisdiction of the Sessions Divisions in the State of
Andhra Pradesh, has been excluded and the Special
Judge for Economic Offences alone is competent to
consider any application for bail in Income Tax matters
etc., pending (investigation/enquiry/trial) before the
Court of Special Judge for the Economic Offences,
Hyderabad. It is, in this context, important to refer the
Honble Single Judges expression of this Court in
Crl.M.P. Nos.1188 and 1189 of 1986 dated 23.03.1987
reported as Superintendent, Customs and Central
Excise, Range-II, Nellore Division, Nellore, v. Elukala
Krishnamachari and others . The Court referred Section
11(1) and Clause (J) of Section 2 of the Code of Criminal
Procedure with regard to the constitution of Special
Courts and its ambit pursuant to the recommendations
of the Law Commission in its 47th report, the Central
Government since moved the State Government for
setting up of a Special Court in the State of Andhra
Pradesh for dealing with economic offences. The State
Government after consultation with the High Court
established the Special Court for economic offences at
Hyderabad to deal with 12 specified Central Acts. As the
maximum punishment that can be imposed being seven
years rigorous imprisonment under the statute, it has
become necessary to post a presiding officer in the cadre
of District and Sessions Judge as there is no separate
cadre of Chief Judicial Magistrate. The Court has been
invested with the State wide jurisdiction issued under the
proviso to sub-section (1) of Section 11 read with Clause
(J) of Section 2 of Code of Criminal Procedure, 1973. The
Court of the Special Judge for economic offences is
treated as a separate unit by itself and it also held in
respect of bails and anticipatory bails for the offence
under Section 135 of Customs Act that specifically deal
with in that matter, if so, holding jurisdiction by the
Sessions Judge being general jurisdiction is ousted in
these cases and thus the Sessions Judge (Nellore) is not
competent to entertain bail application when additional
Judicial Magistrate dismissed the application stating that
the Special Judge for Economic Offences alone is
competent. Once the Special Judge for Economic Offence
alone is competent, bail granted to the accused by the
learned Sessions Judge, Nellore was held not legal and
thus the bail is to be cancelled under Section 439(2) read
with 438 of Cr.P.C. referring to the Government
notification in G.O.Rt.No.734, dated 13.03.1981 supra.
It was also observed that ouster of jurisdiction of the
ordinary court should not be readily inferred is even well
accepted; once the same is clearly expressed or by
necessary implication by virtue of G.O.Rt.No.734
referring to the 12 enactments in constituting the Special
Court by the Government. If the powers conferred on the
Magistrate with a right to remand the accused for any of
the offence under the 12 enactments specified in the
G.O.Rt.No.734; it is only the Special Judge for economic
offences, that is competent to consider the application for
bail and it is by implication the jurisdiction of the
Sessions Judges has been taken away and the same has
been conferred on the Special Judge, which is entrusted
to try the cases arising under these enactments in the
whole of the State of Andhra Pradesh. It is observed that,
it has been contemplated that the Chief Judicial
Metropolitan Magistrate, though holding the cadre of
District and Sessions Judge, is inferior to Sessions Judge
as per Criminal Procedure Code; but, the Special Court
now constituted under the provisions, is distinct and a
different one and as such the Sessions Judge should not
have entertained the application for bail (also when it was
brought to his notice that the II Additional Judicial I
Class Magistrate, Nellore dismissed the applications with
an observation that the Special Judge for Economic
Offences alone has got jurisdiction to the cases).
As such the Special Judge for Economic Offences
alone is the competent to consider the bail application for
grant of bail and the bail granted by the learned Sessions
Judge is liable to be cancelled is the conclusion, by
referring some of the earlier expressions of this Court
reported in viz., Ishwar Chand v. State , Kuppu Naidu
v. State of A.P. and Gulam Mohd. V. State .
19. Thus the cloud is cleared pursuant to
G.O.Rt.No.734 dated 13.03.1981 and from the expression
of the High Court and the later circular instructions of
this Court by referring to said earlier circular in ROC.
No.1348/SO/1991, dated 21.10.1991.
20. It is even later, there is another the expression
of the Division Bench of this (High) Court headed by the
then Honble the Chief Justice of Andhra Pradesh in
Crl.R.C. No.99 of 1996 & Crl.R.C.No.98 of 1996 by
common order dated 04.08.1997 on the revision filed by
one Fakhruddin Sharafali Ampanwala v. State through
Special Public Prosecutor, referring to the expressions
in Elukala Krishnamachary (1supra), A.R.Antulay v.
R.S. Nayak and R.S. Nayak v. A.R.Antulay , Bharat
Traders v. Special Chief Judicial Magistrate,
Allahabad and Shri Ravi Nandan Sahay, Sessions
Judge, Patna , observed on the query raised as to can
an application for pre arrest bail (anticipatory bail) under
Section 438 of Cr.P.C. be moved before the learned
Metropolitan Sessions Judge, Hyderabad instead of the
Court of Special Judge for Economic Offences cum- VIII
Additional Sessions Judge, Hyderabad. It was held in
answering the query, reiterating the Single Judge
expressions in the case of Elukala Krishnamachari
(1supra) and G.O.Rt.No.734, dated 13.03.1981 and
Cr.P.C. provisions in Chapter XXXIII, particularly,
Section 436 to 439, Sections 11 and Section 2(j) read
with Section 14 with the latest provisions contained in
the Amendment Act, 1978 and the provisions relating to
Prevention of Corruption Act where also a Special Judge
is of the designated cadre of Sessions Judge with
empowerment to take cognizance of the offence directly
under Section 190 of Cr.P.C. without any committal
under Section 209 Cr.P.C. for taking cognizance at post
committal stage under Section 193 Cr.P.C., and the
earlier expressions of the Apex Court under Section 5-A
of the Prevention of Corruption Act, 1947 - reported in
H.N.Rishbud and Inder Singh v. State of Delhi , State
of Uttar Pradesh v. Bhagwan Kishore Joshi , S.N.
Bose v. State of Bihar and P.Sirajuddin v. State of
Madras . All in reference to prevention of Corruption Act
and the provisions of Cr.P.C. the then prevailing having
referred to the earlier expressions that even in respect of
cases which are triable by the Court of Sessions, but
then this would create a conflict that can be resolved by
treating, although called a Magistrate, the Special Court
as the Sessions Court and also referred, in this regard,
Sections 26, 28 & 29 of Cr.P.C. regarding the power of
Sentence that to be passed by the Court of Sessions and
the Chief Judicial Magistrate or Chief Metropolitan
Magistrate and the Judicial First Class Magistrate and
the Metropolitan Magistrates etc., and concluded
ultimately at para 13 that there is no manner of doubt
that the Special Court, although called the Special Court
of Judicial Magistrate of First Class, is also a Court of
Session, and as the Court of Session has all the powers
to act under various provisions of Chapter XXXIII of the
Code of Criminal Procedure including for entertaining the
applications for anticipatory bail under Section 438 of
Code of Criminal Procedure. Once the Special Court has
the jurisdiction in the matters as above, it would be
creating conflict of jurisdiction if in addition to a Court of
Session which is specially designated for such matters
the regular Court of Session also is recognised as one
empowered to grant bail under Cr.P.C. It will be, in our
view, not legitimate only to retain the jurisdiction of the
Special Court of Economic Offences for all purposes,
other than the grant of anticipatory bail and recognise
such power of granting anticipatory bail in the Sessions
Court of the district in which the offence is allegedly
committed of which the Court has otherwise jurisdiction
in the matter. Accordingly it was answered as follows:
01. Special Court of Economic Offences being a Court
having jurisdiction through out the State is alone
empowered to take cognizance of the offences which
are referable to the special enactments in the
Annexure to the notification under which the Special
Court has been created and to act for all purposes in
Chapter XXXIII of the Code of Criminal Procedure
including for granting anticipatory bail;
02. Jurisdiction of the regular Court of Session to the
extent of the offences under the Acts which are
mentioned in the annexure to the notification
creating the Special Court of Economic Offences is
excluded. Persons apprehending arrest for the
offences under any of such Acts can move the Special
Court of Economic Offences for anticipatory bail and
not the regular Court of Session.
Thus the Division Bench expression of this Court
also cleared any little cloud if remaining, in its categorical
saying of bail application under chapter XXXIII of
Cr.P.C., touching any of the offences under the 12
enactments enumerated by the G.O. (supra) is conferring
jurisdiction only on the Special Judge for Economic
Offences, for the entire State. Thus, that alone got
jurisdiction which is the Court of Session as a separate
unit including the powers of Magistrate and no other
Court including any other Court of Session has any other
power to entertain any bail application. Though not
necessary thereby, but for reference to say that this
Court, in the course of hearing, addressed the Registry as
to any other circular instructions after the references
supra, in particular, after the Honble Division Bench
expression in Fhakruddin Sharafali Ampanwala v.
State (2supra). The answer received is in negative, saying
no further circulars have been issued in this regard as it
appears. In fact one proceeding of this Court in
ROC.No.1970/E1/2005 of the Registrar (Vigilance), dated
21.06.2013, supplied by the Registry later speak that, it
was addressed to the Metropolitan Sessions Judge,
Hyderabad that Money Laundering Act, 2002 -
Designation of XXI Additional Chief Metropolitan
Magistrates Court Nampally, Hyderabad as Court of
Session as per the orders issued by the Government of
Andhra Pradesh pursuant to the notification issued by
the Government of India extraordinary Part-II, No.1028,
dated 08.05.2013 as the Special Court for trial of
Offences in respect of all the cases connected with
M/s.Satyam Computer Services (SCSL) under Section 9
of Cr.P.C. and G.O.Ms. No.34, Law (LA & J Home Courts
C) Department, dated 02.04.2013. It is in fact, the
Money Laundering Act, 2002 not specifically covered in
the G.O.Rt.No.734 among the annexure - 12 enactments;
apart from the same confined to that particular case
under trial and not a general conferment of the Special
Jurisdiction under the enactment even and thereby,
nothing more is required to be discussed with reference
to the said proceeding, which is only the existing Court
for the limited purpose to deal with the scope of the Act
in relation to the crime covered by the Act and other
offences that is dealing by a particular court for the
purpose of its empowering adjudication of the lis
efficaciously, touching the offence covered by the
provisions of that Act also. It is also need less to say, but
for in the context from a little relevancy that, all the
District and Sessions Judges in the State and the
Metropolitan Sessions Judges equally, in particular,
under Section 11(2) Cr.P.C. are appointed by the High
Court to exercise the powers of a Judicial Magistrate of
First Class under the Code of Criminal Procedure covered
by the High Courts general notification
Roc.No.25/SO/74 I dated 14.08.1974 and the same
was also referred by sanctifying the same and the
subsequent circular instructions of this Court under
Section 11(2) of Cr.P.C. in Roc.No.1354/SO/82, dated
21.09.1982, the Additional District & Sessions Judge
functioning in the District Head-Quarter also being the
Chief Judicial Magistrate for the respective Districts and
confers on them all the powers, for no proceedings are
separately required for each Additional District and
Sessions Judge; and in a dispute raised before a Division
Bench of this Court regarding taking of cognizance under
Sections 190 read with 200 of Cr.P.C. on a private
complaint for the offence under Section 138 of N.I. Act by
the Additional District Judge, Nalgonda, when impugned,
the same was upheld by the Honble Division Bench of
this Court in K.Sudarshana Chari v. G.Saidulu and
others holding that the above circular instructions
covered the area of taking cognizance even as Judicial
Magistrate of First Class under Section 138 of N.I. Act
read with 190 of Cr.P.C. by the additional District &
Sessions Judge is not illegal and thus there is nothing to
impugn the same. In a similar situation in relation to
Section 9(2) of Cr.P.C. read with 2(1)(i) Cr.P.C. another
Honble Division Bench of this Court in Patel Sudhakar
Reddy v. The Registrar (Administration) High Court
and Ors. held that the High Court, under Section 9
Sub-Sections (2) and (3) of the Code of Criminal
Procedure, shall appoint a Session Judge, Additional
Sessions Judge/s and Assistant Sessions Judge/s for
every Court of Sessions and the definition of District
Judge in Article 236 of Constitution of India including
the Sessions Judge is only for a limited purpose of
Chapter 6 of Part VI of the Constitution of India and
cannot be taken in aid for interpreting the expression
here in this context of the lis and reference to the then
designation in the cadre of Grade II and Grade I of the
then District Judge of Andhra Pradesh State Higher
Judicial Service not makes difference and also held that
no separate notification need be issued whenever the
District Judge is appointed as a Sessions Judge from the
general notification in Roc.No.25/SO/74, dated
14.08.1974 that was issued under Section 9 of Code of
Criminal Procedure, and further by G.O.Ms.No.518 dated
29.10.1987, the II Additional Metropolitan Sessions
Judge of the Metropolitan Sessions Court, Hyderabad is
appointed as Additional Judge to exercise jurisdiction of
the designated Court constituted for Metropolitan
Sessions Division for the offence under TADA Act, 1987
and the said composite notification no way invalid and
those are held suffice. There is another circular
instruction of the High Court in Roc.No.510/SO-1/2002
dated 02.09.2002, which is as per the Honble Apex
Court direction in giving clarifications that the designated
the then Additional District Judge as chief Judicial
Magistrates (as per the circular instructions referred
supra), by virtue of the directions of the Honble Apex
Court, the designation of the Senior Civil Judge cum
Assistant Sessions Judges as Chief Judicial Magistrates
and the Chief Metropolitan Magistrates and also with
reference to the understanding of the same in its
referring to the Criminal Rules of Practice and the
Circulars orders of 1990, in saying amendment to the
relevant Rule in that behalf that was stated to be issued
shortly. In fact it was also issued in taking care of.
22. It is also necessary to refer in this context the
Apex Courts expression in State by Central Bureau of
Investigation, Appellant v. S.Bangarappa,
Respondent in dealing with the prevention of
Corruption Act, 1988 for trial of offences specified under
Section 3 of the Act by Special Judge in pointing out the
name of the Presiding Judge holding the Court in the
notification empowering the Civil and Sessions Judge,
Bangalore; it was held by the Apex Court that even if no
Court is empowered, the criminal proceedings can be
kept in abeyance till Government issues Notification
conferring power of competent Court. In fact that
difficulty also does not arise in this case as the offence
occurred prior to the coming into force of the Andhra
Pradesh State Re-organisation Act, 2014 w.e.f.
02.06.2014, apart from the fact that the place of offence
is within the newly formed State of Telangana and the
designated Court is also within the area of the Stte as per
the Act, 2014. Thus, it is only for the offences taken
place after dated 02.06.2014 within the jurisdiction of
the State of Andhra Pradesh (consisting of Andhra &
Rayalaseema regions), a separate notificate is required
from the Government concerned conferring jurisdiction
on any one or more Courts of the State of Andhra
Pradesh and till then, the Registry of the High Court can
take care of by issuing necessary circular instructions,
pursuant to the Apex Courts expression in
S.Bangarappa (supra).
23. From the above, coming to the facts, the
panchanama in this case and the crime registered in this
case show the accused person apprehended with 16 gold
bars brought in his hand bag received in Doha for
handover another person at his village and intercepted at
RGI Airport Hyderabad and this RGI Airport area and the
economic offence Court are, undisputedly, within the
bifurcated State of Telangana and the contention raised
by referring to the expression no way a bar in this case
as any said contention that till separate notification for
the State of Andhra Pradesh designating any other
Metropolitan or Additional Metropolitan Session Judge or
Additional Sessions Judge in that area of the State of
Andhra Pradesh covered by the Andhra Pradesh State
reorganisation Act, 2014; and till being designated the
existing Court if for the State of Telangana afresh, the
case relating to the economic offences cannot be tried by
the economic offences Court at Hyderabad is untenable
for the aforesaid reasons. Hence and subject to that, it is
even left open to raise the lis in appropriate forum with
appropriate contention, but for to observe that the
authorities concerned may take care of, if any such
notification requires to have separate notification for the
State of Andhra Pradesh and for the State of Telangana
and it is made clear to avoid any future confusion till
such separate notification being given, the existing
notification and the jurisdiction holds good conferring
jurisdiction on the economic offences Court at Hyderabad
for the entire state of Andhra Pradesh that existing as on
the date of bifurcation and before to continue. The above
conclusion draws support from expression of Lord
Denning Quoted in Land marks in the law (Butterworths)
at page 62; from Christopher St. Germans doctor &
Student Chapter XVI Page 45 as the following:
Judges should not go by the letter by the intendment
of the Statute in giving interpretation, by doing what
the makers of statute would have done if they had
thought of it and filling in gaps accordingly
The judges may judge after the mind of the makers
so far as the latter may suffer A judge must not alter the
material of which it is woven, but he can & should iron
out the creases.
24. Having regard to the above, the learned
Metropolitan Sessions Judge has no right at all to
entertain much less to grant bail and the bail order
granted is unsustainable and thereby the bail order,
dated 23.04.2014, in Crl.M.P. No.1464 of 2014 is liable
to be set aside. It is in this context to be kept in mind
that, as per the Apex Courts expression relied on by the
accused respondent to this application that is
Omprakash (3supra) the offence under the Excise Act
and the Customs Act in view of Section 9-A, 19 and 20 of
Excise Act and Sections 103 and 104 of Customs Act are
bailable irrespective of the term of imprisonment fixed for
said offence (irrespective what is contained in schedule II
of Cr.P.C.).
25. Thus, to subserve the ends of justice any by
invoking the inherent powers under Section 482 Cr.P.C.,
the bail order to be kept in force for one week from today
instead of cancelling forthwith and by directing the
respondent accused herein meanwhile to surrender
himself before the learned Special Judge for Economic
Offences, under Section 44 of Cr.P.C. to take him in to
custody and move for regular bail afresh to entertain the
said bail application of the accused respondent herein
and to decide afresh including as to the same is bailable
or non bailable as the case may be and for granting bail
subject to such conditions necessary which may not
influence to the conditions imposed by the learned
Metropolitan Sessions Judge in the impugned order since
held without Jurisdiction in granting bail as the
conditions may include furnishing of full and correct
address with proof with bank account particulars,
passport particulars and surrender of passport, if any,
attending to the investigation, assurance of availability
and securing his presence before Court, non-interference
with witnesses particularly the mediators to the
panchanama and the like. Accordingly, the point I is
answered.
In Re. Point No.2:
26. In the result, the Criminal petition is allowed
and consequently order of the learned Metropolitan
Sessions Judge, Hyderabad passed in Crl.M.P. No.1464
of 2014 in Crime No.HQ. POR. NO.43 of 2014-CUS-PREV
of Superintendent of Customs, Hyderabad is set aside,
however by invoking the inherent powers of this Court
under Section 482 Cr.P.C., this order of setting a side the
bail order granted by the learned Metropolitan Sessions
Judge is stayed for one week from today, for the
Respondent-accused to continue on the bail meanwhile,
so as to enable him to surrender before the learned
Special Judge for Economic Offences, under Section 44
Cr.P.C.; to take him to custody and more for regular bail
a fresh to entertain by the learned Special Judge to hear
and decide, including as to whether the offences are
bailable or non-bailable, with reference to the expression
of the Apex Courtin Omprakash(supra) and in granting
bail is with necessary conditions like execution of self
bond with sureties furnishing of full and correct address
with proof, with bank account particulars, surrender of
passport, attending to the investigation, assurance of
availability and securing his presence before Court, non
interefence with witnesses particularly of the mediators
to the panchanama and the like.
____________________________
Dr. B.SIVA SANKARA RAO
Dt.06.08.2014
