From perusal of Section 21, 22, 23, 23-A and various other provisions of the Mines and Mineral (Development and Regulations) Act, 1957, it clearly transpires that the applicability of the Code of Criminal Procedure, 1973 is not excluded as held by the Hon’ble High Court of J&K through a learned bench of Justice Sanjeev Kumar in the case of Muzaffar Ahmad Wani Vs SSP Ganderbal and anr [Bail App. No. 80/2021].
This was an application by the petitioners under Section 438 of the Code of Criminal procedure for grant of anticipatory bail. Brief facts of the case are that the petitioners herein along with one Ishfaq Ahmed Mir earlier approached the Court of learned Sessions Judge, Ganderbal for similar relief but their application was rejected by the learned Sessions Judge on the ground that the petitioners being involved in the commission of offences, inter alia, under Section 21 of the Act of 1957, which offence is of special nature and triable by Special Court and, therefore, the provisions of Section 438 CrPC were not applicable.
Mr. Lone Altaf, learned counsel for the petitioner, has seriously disputed the correctness of order of the learned Sessions Judge and claims that the provision of anticipatory bail contained in Section 438 of the Code of Criminal Procedure is available even qua the offences under the Act of 1957 and, therefore, the learned Sessions Judge was not correct in rejecting the anticipatory bail plea of the petitioners on the aforesaid ground.
The Hon’ble High Court after hearing both the parties observed that the only question that begs determination is whether the Court of Sessions has the power to grant anticipatory bail under Section 438 Cr.P.C even in relation to offences under the Act of 1957. In Conclusion, it was stated by the court that “Section 21 (6) of the Act of 1957 makes offences under sub Section (1) of Section 21 cognizable. That being the position, it cannot be denied that the Police is competent to register an FIR if it receices information with regard to commission of any cognizable offences including the offence under Section 21(1) of the Act of 1957. It is, however, a different matter that in terms of Section 22, no Court shall take cognizance of offence punishable under Section 21 of the Act of 1957, except on a complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. From perusal of Section 21, 22, 23, 23-A and various other provisions of the Act of 1957, it clearly transpires that the applicability of the Code of Criminal Procedure, 1973 is not excluded. It is true that in terms of Section 30-B of the Act of 1957, the State Government has been given discretion to constitute special Courts for the purpose of providing speedy trial of offences for contravention of the provisions of sub-section (1) or sub-section (1-A) of Section 4 of the Act and such court/ courts shall consist of a Judge who is or has been a District & Sessions Judge. From bare reading of Section 30-B, which is reproduced herein below, it is abundantly clear that the provisions of Section are directory and not mandatory and it is left to the discretion of the State Government to constitute Special Courts for trial of offences under the Act. This, however, does not mean that till the State Government exercises such discretion and constituted special courts, the jurisdiction of regular criminal Courts shall also remain excluded. Section 22 which refers of cognizance of offence, only speaks of a Court and not of a Special Court.”
Judgment reviewed by – Aryan Bajaj