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CASE NO.: Appeal (crl.)  888-891 of 2003

PETITIONER: State of Gujarat                                                 

RESPONDENT: Salimbhai Abdulgaffar Shaikh & Ors.              

DATE OF JUDGMENT: 08/09/2003

BENCH: S. Rajendra Babu & G. P. Mathur.

JUDGMENT: JUDGMENT

G.P. Mathur, J.

1.      These appeals arise on a certificate granted by the Gujarat High Court  under Article 134A read with Article 134(1)(c) of the Constitution in the  matter of grant of bail to the respondents. 2.      Raising a preliminary objection, Shri Amarendera Sharan, learned  Senior Advocate, submitted that an appeal will lie to this Court from any  judgment, final order or sentence in a criminal proceeding of a High Court  on a certificate being granted in terms of Article 134(1)(c) and 134A of the  Constitution; that, an order made in a proceeding arising out of an  application for grant of bail is not a judgment, final order or sentence; that, a  judgment would mean any decision which terminates a criminal proceeding  pending before the Court and excludes an interlocutory order; that, in a  criminal proceeding an order on an application for bail is not a final order;  that, the order in question is neither a final order nor imposes a sentence;  that, therefore, the certificate issued by the High Court should be cancelled  and the appeal should be treated as incompetent. 3.      There seems to be force in the contentions urged by the learned Senior  Advocate on behalf of the respondents but the settled practice of this Court  is that  if on the face of it this Court is satisfied that the High Court has not  properly exercised the discretion under Article 134(1)(c), the matter may  either be remitted or this Court may exercise that discretion itself or treat the  appeal as one under Article 136 (Nar Singh v. State of U.P., 1955 (1) SCR  238, and Baladin v. State of U.P., AIR 1956 SC 181).    Therefore, we do not  propose to examine this aspect of the matter any further but treat this appeal  as a proceeding arising under Article 136 of the Constitution.         Leave granted.  4.      A ghastly incident took place at about 7.45 a.m. on 27.2.2002 when  the Sabarmati Express was stopped near Godhra Railway Station and a  coach was set on fire resulting in death of 59 persons and serious injuries to  48 others.   An FIR was lodged on the basis of which a case was registered   as CR No. I-09 of 2002 under Sections 143, 147, 148, 149, 337, 338, 435,  120-B, 34, 153(A), 302, 307 IPC, Sections 141, 151, 152 Indian Railways  Act, Sections 3 and 4 of Prevention of Damage to Public Property Act and  Section 135(1) of the Bombay  Police Act.     After  investigation, charge  sheets were submitted against the accused involved in the case but  it was  specifically mentioned therein  that investigation was still continuing.   The  respondents who are accused in the case moved separate bail applications  which were rejected by the Additional Sessions Judge, Panchmahals at  Godhra on different dates between 18th and 30th January, 2003.  Thereafter   bail applications under Section 439 Cr.P.C. were filed before the High  Court.   On the basis of the facts revealed as a result of further investigation,  the prosecution came to the conclusion that offences under Section 3(2) and  (3) and Section 4 of the Prevention of Terrorism Act (for short ’POTA’) had  also been committed and accordingly took appropriate steps for including  the aforesaid offence.  A counter-affidavit was filed on behalf of the State on

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5.3.2003 before the High Court wherein it was averred that after filing of the  charge sheets, further evidence had been collected which revealed  commission of offences under Sections 3 and 4 of POTA and  applications  had already been moved on 19.2.2003 in the Court of Additional Sessions  Judge and JMFC (Railway Court) Godhra for adding Sections 3(2) and (3)  and Section 4 of POTA to the main charge sheet dated 22.5.2002 as well as  the supplementary charge sheets dated 20.9.2002 and 19.12.2002.   The  accused who were in judicial custody were also informed about the aforesaid  development that POTA had been applied against them.  It was pleaded in  the counter affidavit that the accused-respondents should first approach the  Special Court for grant of bail under POTA and they could approach the  High Court  only after decision of the said matter.  It was submitted that in  view of the specific provisions of POTA, the learned Single Judge, who was   seisin of the matter had no jurisdiction to hear the bail application.   The  High Court, by a detailed order dated 4.7.2003, allowed all the bail  applications and directed that the respondents be released on bail in  connection with CR No.I-09 of 2002 registered with Godhra Railway Police  Station.  Certificate under Article 134A read with Article 134(1)(c) of the  Constitution of India was granted by the High Court on the prayer made by  the State. 5.      Shri Harish Salve and Shri Sushil Kumar, learned senior counsel  appearing for the appellant State, have assailed the order of the High Court  mainly on two grounds, namely, that the accused  having not applied for bail  under Section 3(2) and (3) and Section 4 of POTA before the Special Judge,  it was not open to the High Court to directly entertain their bail applications  and grant them bail in the aforesaid offences and that in view of specific  provision contained in Sub-section (2) of Section 34 of POTA only a bench  of two judges of the High Court could grant bail in an offence under the said  Act.  The submission is that as a learned Single Judge of the High Court has  granted bail while exercising power under Section 439 read with Section 482  Cr.P.C., the order passed by the High Court is not only illegal but also  without jurisdiction.    6.      In order to examine the contention raised by the learned counsel for  the appellant, it is necessary to take note of Section 34 of POTA which reads  as under :  "34. (1)       Notwithstanding anything contained in the  Code, an appeal shall lie from any judgment, sentence or order,  not being an interlocutory order, of a Special Court to the High  Court both on facts and on law.

       (2)     Every appeal under sub-section (1) shall be heard  by a bench of two Judges of the High Court.

       (3)     Except as aforesaid, no appeal or revision shall lie  to any court from any judgment, sentence or order including an  interlocutory order of a Special Court.  

       (4)     Notwithstanding anything contained in sub-section  (3) of Section 378 of the Code, an appeal shall lie to the High  Court against an order of the Special Court granting or refusing  bail.

       (5)     Every appeal under this section shall be preferred  within a period of thirty days from the date of judgment,  sentence or order appealed from;  

       Provided that the High Court may entertain an appeal  after the expiry of the said period of thirty days if it is satisfied  that the appellant had sufficient cause for not preferring the  appeal within the period of thirty days."

       Sub-section (1) of Section 34 of POTA lays down that an appeal shall  lie from any judgment, sentence or order not being in interlocutory order of  a Special Court to the High Court both on facts and law and in view of Sub- section (2), the appeal has to be heard by a bench of two judges. Normally

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an order granting or refusing bail is an interlocutory order and no appeal  would lie.  However, in view of    sub-section (4) of Section 34 an appeal  shall lie to the High Court against such an order.   Under the scheme of  POTA, there is a clear departure in the matter of grant of bail from that of  Code of Criminal Procedure.   The previsions regarding bail in Code of  Criminal Procedure are contained in Sections 436 to 439..   Sub-section (1)  of Section 439 confers power upon the Court of Sessions and  High Court to  grant bail to any person  accused of having committed  a non-bailable  offence.   Sub-section (2) of Section 439 deals with cancellation of bail and  provides that any person who has been released on bail under Chapter  XXXIII may be arrested and committed to custody.  There is no provision  for appeal under the Code of Criminal Procedure  against an order refusing   or  granting bail. 7.      The considerations which normally weigh with the court in granting  bail in non-bailable offences have been  explained by this Court in State v.  Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi.  Admn.) AIR 1978 SC 179 and basically they are â\200\224 the  nature and  seriousness of the offence; the character of the evidence; circumstances  which are peculiar to the accused; a reasonable possibility of the presence of  the accused not being secured at the trial; reasonable apprehension of  witnesses being tampered with; the larger interest of the public or the State  and other  similar factors which may be relevant in the facts and  circumstances of the case.   While hearing an application for cancellation of  bail under Sub-section (2) of Section 439 of the Code, the Courts  generally  do not examine the merits of the order granting bail.   What is normally  relevant to be examined  in such a proceeding is whether  the accused is  trying to tamper with the evidence subsequent to his release on bail or has  threatened the witnesses or  has committed any other offence while on bail  or is trying to adopt dilatory tactics resulting in delay of trial or has  absconded or that the offence committed by him has created serious law and  order problem.  The Court has to see as to whether the accused has misused  the privilege of bail granted to him.   Only in exceptional cases where the  order granting bail is vitiated by any serious infirmity and in the interest of  justice it becomes necessary to interfere with the discretion exercised in  granting bail that  the order would be interfered with on merits.   8.      Sub-section (4) of Section 34 of POTA provides for an appeal to the  High Court against an order of the Special Court granting or refusing bail.  Though the word ’appeal’ is used both in Code of Criminal Procedure and  Code of Civil Procedure and in many other Statutes but it has not been  defined anywhere.   Over a period of time, it has acquired a definite  connotation and meaning which is as under :-         "A proceeding undertaken to have a decision reconsidered by bringing  it to a higher authority, specially the submission of a lower Court’s decision  to higher Court for review and possible reversal.         An appeal strictly so called is one in which the question is, whether  the order of the Court from which the appeal is brought was right on the  material which the Court had before it.            An appeal is removal of the cause from an inferior to one of superior  jurisdiction for the purposes of obtaining a review or retrial.            An appeal generally speaking is a rehearing by a superior Court on  both law and fact." 9.      Broadly speaking, therefore, an appeal is a proceeding taken to rectify  an erroneous decision of a Court by submitting the question to a higher  Court, and in view of express language used in sub-section (1) of Section 34  of POTA the appeal would lie both on facts and on law.  Therefore even an  order granting bail can be examined on merits by the High Court without  any kind of fetters on its powers and it can come to an independent  conclusion whether the accused deserves  to be released on bail on the merits  of the case.  The considerations which are generally relevant in the matter of  cancellation of bail under sub-section (2) of Section 439 of the Code will not  come in the way of the High Court in setting aside an order of the Special  Court granting bail.  It is therefore evident that the provisions of POTA are  in clear contradistinction with that of Code of Criminal Procedure where no  appeal is provided against an order granting bail.   The appeal can lie only  against an order of the Special Court and unless there is an order of the

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Special Court refusing bail, the accused will have no right to file an appeal  before the High Court praying for grant of bail to them.   Existence of an  order of the Special Court is, therefore, sine qua non for approaching the  High Court. 10.     Shri Amarendera Sharan, learned senior counsel for the respondents  has submitted that  the power of the High Court to grant bail under Section  439 Cr.P.C. has not been taken away by POTA and consequently the learned  Single Judge had the jurisdiction to grant bail to the respondents in exercise  of the power conferred by the aforesaid provision.  Learned counsel has laid  great emphasis upon Section 49 of POTA, especially Sub-section (5) thereof  and has submitted that in view of the language used in this section, the  power conferred upon the Court of Sessions and the High Court under  Section 439 will remain intact.   It has been urged  that if the intention of the  legislature was to make the provisions of Section 439 of the Code  inapplicable in relation to offences under POTA, it would have made a  provision similar to Sub-section (5) of Section 49 which expressly excludes  the applicability of Section 438 Cr.P.C.   We are unable to accept the  contention raised by the learned counsel for the respondents.   It is well  settled principle that the intention of the legislature must be found by  reading the Statute as a whole.  Every clause of Statute should be construed  with reference to the context and other clauses of the Act, so as, as far as  possible, to make a consistent enactment of the whole Statute.   It is also the  duty of the Court to find out the true intention of the legislature and to  ascertain the purpose of Statute and give full meaning to the same.   The  different provisions in the Statute should not  be interpreted in abstract  but  should be construed keeping in mind the whole enactment and  the dominant  purpose that it may express.   Section 49 cannot be read in isolation, but  must be read keeping in mind the scope of Section 34 whereunder an  accused  can obtain bail from the High Court by preferring an appeal against  the order of the Special Court refusing bail.   In view of this specific  provision, it will not be proper to interpret Section 49 in the manner  suggested by learned counsel for the respondents.   In A.R. Antulay v.  Ramdas Srinivas Nayak & Anr. 1984 (2) SCC 500, the scope of special Act  making provision for creation of a Special Court for dealing with offences  thereunder and the application of Code of Criminal Procedure in such  circumstances has been considered and it has been held that the procedure in  Cr.P.C.  gets modified by reason of a special provision in a special  enactment.  11.           Section 20 of TADA contained an identical provision which  expressly excluded the applicability of Section 438 of the Code but said  nothing about Section 439 and a similar argument that the power of the High  Court to grant bail under the aforesaid provision consequently remained  intact was repelled in Usmanbhai Dawoodbhai Menon v. State of Gujarat  1988 (2) SCC 271.  Having regard to the scheme of TADA it was held that  there was complete exclusion of the jurisdiction of the High Court to  entertain a bail application under Section 439 of the Code.  This view was  reiterated in State of Punjab v. Kewal Singh 1990 (Supp) SCC 147.  12.     That apart if the argument of learned counsel for the respondents is  accepted, it would mean that a person whose bail under POTA has been  rejected by the Special Court will have two remedies and he can avail any  one of them at his sweet will.   He may move a bail application before the  High Court under Section 439 Cr.P.C. in the original or concurrent  jurisdiction which may be heard by a   Single Judge or  may prefer an appeal  under Sub-section (4) of Section 34 of POTA which would be heard by a  bench of two judges. To interpret a statutory provision   in such a manner  that a Court can exercise both appellate and original jurisdiction in respect of  the same matter will lead to an incongruous  situation.  The contention is  therefore fallacious. 13.         In the present case, the respondents did not chose to apply for bail  before the Special Court for offences under POTA and consequently there  was no order of refusal of bail for offences under the said Act. The learned  Single Judge exercising powers under Section 439 read with Section 482  Cr.P.C. granted them bail.   The order of the High Court is clearly without  jurisdiction as under the scheme of the Act the accused can only file an  appeal against an order of refusal of bail passed by the Special Court before

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a Division Bench of the High Court and, therefore, the order under challenge  cannot be sustained and has to be set aside. Even on merits the  order of the  High Court is far from satisfactory.  Though it is a very long order running  into 87 paragraphs but the factual aspects of the case have been considered  only in one paragraph and that too in a very general way.

14.            The High Court has also  invoked  powers under Section 482 Cr.P.C.  while granting bail to the respondents. Section 482 Cr.P.C. saves the  inherent power of the High Court.   The High Court possesses the inherent  powers to be exercised ex debito justitiae to do the real and substantial  justice for the administration of which alone Courts exist.   The power has to  be exercised to prevent abuse of the process of the Court or to otherwise   secure the ends of justice.  But this power cannot be resorted to if there is a  specific provision in the Code for the redress of the grievance of the  aggrieved party. (See Madhu Limaye v. State of Maharashtra AIR 1978 SC  47).    There being a specific provision for grant of bail, the High Court  clearly erred in taking recourse to Section 482 Cr.P.C. while enlarging the  respondents on bail.   

15.     In the result, the appeals are allowed and the order passed by the High  Court granting bail to the respondents is set aside.   Since the respondents  have not approached the Special Court for grant of bail to them for offences  under POTA, they should first invoke the jurisdiction of the said Court  which shall dispose of the matter expeditiously without being influenced by  any observation made by the High Court and any party feeling aggrieved  thereby will have a right to prefer an appeal before the High Court in  accordance with Section 34 of POTA.