Why can't Bihar govt vacate its buildings for special courts to try Prohibition cases? says SC

NewsDrum Desk
23 Jan 2023

New Delhi, Jan 23 (PTI) The Supreme Court on Monday expressed unhappiness over the seven-year delay in the creation of adequate infrastructure for special courts in Bihar to deal with cases under the Bihar Prohibition and Excise Act and asked why government buildings can't be vacated for the courts.

During the hearing, the apex court also voiced concern over the state looking to confer the powers of a judicial magistrate to an executive magistrate under section 37 (2) of the Act, a provision against which reservations have been expressed by the Patna High Court.

The court said it will examine all the aspects related to the matter from the creation of the necessary infrastructure to the conferment of powers on executive magistrates to deal with cases related to prohibition law.

A bench of Justices Sanjay Kishan Kaul and Abhay S Oka said the law was passed in 2016 but the state is yet to earmark land for the creation of necessary infrastructure for the special courts.

It also wondered why all the accused booked under the prohibition law cannot be released on bail till the necessary infrastructure is created for the trial in their cases.

"You have passed the law in 2016 and seven years have passed and you are still looking for land for the special courts. Why can't we grant bail to all the accused booked under the offences specified in the law? Why don't you vacate the government buildings for the courts?" the bench told senior advocate Ranjit Kumar, appearing for the Bihar government.

The top court said that over 3.78 lakh criminal cases have been registered under the law but only 4,116 have been disposed of, which shows the burden on the judiciary to try such cases.

"This is the problem, you pass the law without even looking at its impact on the judicial infrastructure and the society. Why don't you encourage plea bargaining, if infrastructure is a problem," the bench said.

The apex court is hearing a matter relating to the prohibition law that had come into force in Bihar in 2016.

On section 37 (2) of the Act, Justice Kaul said, "I have a great caveat on conferring powers of a judicial magistrate on executive magistrates. As far as the power for imposing a penalty for consumption of liquor is concerned it is okay but we are concerned with the power of imposing sentence on the accused by the executive magistrate".

Advocate Gaurav Agrawal, who is assisting the court as amicus curiae in the matter, said the High Court has expressed its reservation about the conferment of powers on executive magistrates and an amendment is required to the provision of the Act.

Kumar said that the rate of disposal of cases under the Act has increased as recruitment of several judicial officers has been made and as far as infrastructure is concerned, the state is trying to accommodate the judicial officers and many have been accommodated.

The top court noted that it had not seen court buildings coming up in six-seven months and noted in its order that the setting of the special courts seems to be a long distance away.

The bench granted one week to Kumar to seek necessary instruction on the issue as to what could be done and said that the court will examine all the aspects related to the matter from the creation of the necessary infrastructure to the conferment of powers on executive magistrates to deal with cases related to prohibition law.

The Bihar government in its affidavit filed in the matter said that the land for special courts for excise has been acquired for 13 districts namely Buxar, Jehanabad, Khagaria, Jamui, Motihari, Bettiah, Kaimur (Bhabhua), Patna, Madhepura, Saharsa, Muzaffarpur and Lakhisarai and construction are either going on or approval is pending at various levels.

"However, with regard to remaining districts, the district magistrates concerned have been requested to acquire land for the same (special courts)", it said.

The government said that Section 37 of the Bihar Prohibition and Excise Act, 2016 has been amended in 2022 under which the cases under the provision have to be tried by the executive magistrate exercising powers of judicial magistrate second class and till the time such powers are conferred by the Patna High Court, for offences punishable under section 37 shall have to be tried by the special courts.

The state government on the suggestion of amicus curiae that a separate incarceration facility be set up for persons, who are required to undergo prison for the commission of an offence under Section 37 if they fail to deposit penalty, said that only around 1.5 per cent of the accused undergo imprisonment.

The others are released immediately upon payment of the penalty and it would not be feasible to have separate incarceration facilities for each distinct category of offenders.

On December 9 last year, the top court asked the Bihar government to specify the schedule for the construction of infrastructure for special courts which would deal with cases under the Bihar Prohibition and Excise Act.

The top court was informed that 74 special courts have been set up by the state in 2019 and the Patna High Court has approved the map of construction of buildings for special courts through a letter of September 27, 2021.

The apex court had earlier flagged the issue regarding the number of cases arising out of the 2016 law clogging the judicial system. PTI MNL RT

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