B.J. SHETHNA, J.

(1.) These two petitions are disposed of by this common order. The petitioner who is the original complainant has challenged the order passed by the learned Additional Sessions Judge, Mehsana in Misc. Criminal Application Nos. 163 and 164 of 1992 releasing the respondents-accused on bail.

(2.) Shri Patel, learned Advocate appearing for the petitioner in both these applications has vehemently submitted that the order passed by the learned Additional Sessions Judge releasing the respondents-accused on bail should be quashed and set aside by this Court, because he had no jurisdiction to entertain and decide the said applications of the accused. He submitted that except the learned Sessions Judge no other Judge could hear and decide the bail application of the accused who are charged with the offence under the Atrocities Act. Therefore, the impugned order passed by the learned Additional Sessions Judge is without jurisdiction and it should be quashed and set aside. In support of his submission he has read Sec. 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act for short) and submitted that only a Court of Session is a Special Court which can try the offence under the Act. Therefore, the learned Sessions Judge alone has got jurisdiction. He also read the Notification dated 30-1-1990 issued by the State Government to the extent. As per the said Notification the Court of Sessions is a Special Court in Sessions Division, Mehsana to try the case under the Act.

(3.) Mr. M. R. Raval, learned A. P. P. appearing for the State, in both these applications on advance copy of the petitioner served upon him by the petitioner, has brought to my notice Sec. 2(12)(d) of the Act which defines Special Court, i.e., the Court of Session specified as Special Court under Sec. 14. He also brought to my notice provisions of Sec. 9(1), (2), (3) of Cr. P. C. which are relevant for our purpose to decide the point in question raised by Shri Patel which are as under : "Section 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.) Under Sec. 9(1) the State Government establishes a Court of Session for every Sessions Division. Under Sec. 9(2) every Court of Session is presided over by a Judge, i.e.. Sessions Judge appointed by the High Court. And Sec. 9(2) the High Court may also appoint Additional and Assistant Judges to exercise jurisdiction in a Court of Sessions. Therefore, Court of Sessions would be a Special Court but that would not mean that the Sessions Judge alone could be empowered to try the offence under the Act, as Sec. 9(3) clearly provides that Additional and Assistant Judges appointed by the High Court are empowered to exercise jurisdiction in a Court of Session which is a Special Court under the Act and therefore the learned Additional Sessions Judge had jurisdiction to exercise powers of a Sessions Judge as a Court of Session which is a Special Court under the Act and therefore it cannot be said that the learned Additional Sessions Judge had no jurisdiction to entertain and decide the bail applications filed by the accused before him who are charged with the offence punishable under the Act. Therefore, the contention raised by Shri Patel that the learned Additional Sessions Judge had no jurisdiction and therefore the order of bail passed by him is bad fails and is rejected as it has got no substance.

(5.) I do agree with the alternative submission made by Shri Patel that ordinarily the learned Sessions Judge should himself decide the case and the bail application of the accused and he should not transfer that to Additional or Assistant Sessions Judge. It is desirable that learned Sessions Judge himself should try the case and decide the bail application of the accused who are charged with the offence under the Act, and only in exceptional and unavoidable circumstances he should transfer that to the Additional or Assistant Judge as he thinks fit.

(6.) Mr. Patel, learned Advocate appearing for the petitioner has then submitted that on merits also the order passed by the learned Additional Sessions Judge is required to be quashed and set aside, because the accused are charged with the serious offence punishable under the Act and out of them one is M.L.A. It is true that the offence under the Act should be viewed seriously by the Court. But at the same time the Court must also consider the seriousness of allegations made in each case against the accused who are charged with the offence punishable under the Act and also other relevant circumstances of the case. After considering the overall circumstances of the case the Court must come to the conclusion whether the accused should be released on bail or not. Who is the accused is not to be seen by the Court. He may be a M.L.A. or a layman that would not make any difference to the Court while considering the case against him. Whether there is a prima facie case against the accused or not and if prima facie case is made out then the seriousness and gravity of the offence alleged to have been committed by him is to be taken into consideration by the Court along with other relevant circumstances of the case while deciding the application of the accused for bail, In this case the learned Judge has taken into consideration the case of the accused that before filing of the complaint regular Civil Suit No. 127 of 1992 was filed by some of the accused and also order was obtained against the complainant, but only with a view to bring pressure on the accused false complaint has been filed against them. The learned Judge has also considered the fact that maximum punishment for the offence for which the accused are charged under the Act is 5 (five) years. Therefore, the punishment is not also severe so that the accused would like to jump bail and they will not make themselves available to face the trial against them. Considering the above facts the learned Judge thought it fit to release the accused on bail on certain terms and conditions and accordingly he has ordered to release the accused on bail. Thus, it cannot be said that the learned Judge has wrongly exercised his discretion in favour of the accused by releasing them on bail. Considerations for grant of bail and for cancelling the bail are different. For considering the application for cancellation of bail it must be pointed out to this Court that the accused have misused their liberty after they are released on bail by making an attempt to tamper with the evidence of the prosecution witnesses or in fact they have tampered with the evidence and/or they have jumped the bail or there is a possibility of they being jumped the bail. In these circumstances this Court should exercise its powers as laid down by the Supreme Court in case of Bhagirathsinh Jadeja v. State of Gujarat, reported in AIR 1984 SC 372 [LQ/SC/1983/335] : [1984 (1) GLR 332 (SC)]. In this case it appears that there was prior civil dispute between the parties regarding the disputed land and the learned Judge while exercising his discretion in favour of the accused has taken into consideration the overall circumstances of the case. Therefore, in absence of anything on the record of this case that after the accused being released on bail, they have either jumped the bail or tried to jump the bail or tampered with the evidence of the prosecution witnesses, this Court cannot interfere with the discretion exercised by the learned Addl. Sessions Judge in favour of the accused.

(7.) One more important aspect is also required to be borne in mind that the complaint was lodged before the Police by the complainant and the Police was investigating the case. The learned A.P.P. had opposed the bail application of the accused. However, the State has not thought it fit to challenge the impugned order of bail passed in favour of the accused by filing an application for cancellation of bail before this Court and it is only the private party, i.e., the complainant has filed these applications for cancelling the bail granted in favour of the accused. Therefore, also this Court would be slow in entertaining the applications which are filed by the private party, i.e., complainant for cancelling the bail.

(8.) In view of above discussion, there is no substance in any of the contentions raised by Shri Patel and there is no merit in these applications and therefore they fail and are dismissed summarily.