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PETITIONER: USMANBHAI DAWOODBHAI MENON & ORS. ETC.

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT14/03/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) SHARMA, L.M. (J)

CITATION:  1988 AIR  922            1988 SCR  (3) 225  1988 SCC  (2) 271        JT 1988 (1)   539  1988 SCALE  (1)494  CITATOR INFO :  APL        1990 SC1962  (8)  R          1991 SC 558  (5,7)

ACT:      Terrorist &  Disruptive  Activities  (Prevention)  Act, 1987-Whether the  High Court  has jurisdiction  and power to grant bail  under s. 439 of Code of Criminal Procedure, 1973 or by  recourse to  its inherent  powers under  s. 482  to a person accused  of an  offence under sections 3 and 4 of the Act-The nature of restraint on power of Designated Courts to grant bail  to such a person in view of limitations under s. 20(8) of the Act.

HEADNOTE: %      This Criminal  Appeal against the judgment and order of the Gujarat  High Court  and  the  connected  Special  Leave Petitions against  the  orders  of  the  various  Designated Courts in  the  State  constituted  under  the  Terrorist  & Disruptive Activities  (Prevention) Act, 1987, raised common questions for  consideration. It  was enough  to set out the facts in  the appeal. There was an armed clash involving the appellants, as  a result  whereof the police apprehended the appellants and  produced them  before the  Designated Court. The appellants  moved an  application  for  bail  which  was rejected by the Designated Court.      The appellants  moved the  High Court under s. 439 read with s.  482 of  the Code.  The High Court rejected the bail application on  the ground  that it  had no  jurisdiction to entertain such an application under s. 439 of the Code or by recourse to  its inherent  powers under s. 482. Aggrieved by the decision  of the  High Court, the appellants appealed to this Court for relief by special leave.      On the  view the  Court took  as to  the nature  of the function of  the Designated  Courts in dealing with the bail applications within  the constraints of s. 20(8), it was not necessary to  deal with  the facts  of the connected special leave petitions directed against the orders of the different Designated Courts, rejecting the bail applications.      Allowing, the  appeal and  the special  leave petitions partly, the Court,

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^      HELD:  These  cases  mainly  raised  two  questions  of substantial 226 importance. The  first was as to the jurisdiction and powers of the  High Court  to grant  bail under  section 439 of the Code of  Criminal Procedure,  1973 or  by  recourse  to  its inherent powers under s. 482 to a person held in custody for an offence  under ss.  3 and 4 of the Terrorist & Disruptive Activities (Prevention)  Act, 1987,  and secondly, as to the nature  of   the  restraint  placed  on  the  power  of  the Designated Courts  to grant bail to such a person in view of the limitations  placed on  such power under s. 20(8) of the Act. [246G-H]      The Act  being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under s. 439 of the Code or by recourse to its inherent powers under s. 482. Under the scheme of the Act, there  is complete exclusion of the jurisdiction of the High Court  in any  case involving  the arrest of any person for an  offence punishable  under the  Act or  any rule made thereunder. There  is contrariety  between the provisions of the Act  and the  Code. Under  the Code,  the High  Court is invested with  the various  functions and duties in relation to  any  judgment  or  order  passed  by  a  criminal  court subordinate to  it. The  Act creates a new class of offences called terrorist acts and disruptive activities and provides for a  special procedure for the trial of such offences. The jurisdiction and  power of  a Designated  Court are  derived from the Act and it is the Act that must primarily be looked to in  deciding the  question before  the  Court.  Where  an enactment provides  for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code. [239B-C; 240A,D]      No doubt,  the legislature has, by the use of the words ’as if  it were’ in s. 14(3) of the Act, vested a Designated Court with  the status  of a Court of Session, but the legal fiction  contained   therein  must   be  restricted  to  the procedure to  be followed  for the trial of an offence under the Act  i.e. such  trial must  be in  accordance  with  the procedure prescribed  under the  Code for the trial before a Court of Session, in so far as applicable. [240D-F]      Though there  is no  express  provision  excluding  the applicability of  s. 439  of the  Code similar  to  the  one contained in  s. 20(7)  of the  Act in  relation to  a  case involving the arrest of any person for an offence punishable under the  Act or any rule thereunder, yet that result must, by necessary  implication, follow.  The source of power of a Designated Court  to grant  bail is not s. 20(8) of the Act, as it only places limitations on such power, but it does not necessarily follow  that the  power of a Designated Court to grant bail is relatable to s. 439 of the Code. The 227 Designated Court  is a  ’court other  than the High Court or the Court  of Session’  within the  meaning of s. 437 of the Code.  The  exercise  of  the  power  to  grant  bail  by  a Designated Court  is not  only subject  to  the  limitations placed  by  s.  20(9)  which  in  terms  provides  that  the limitations on  grant of  bail specified  in s. 20(8) are in addition to  the limitations under the Code or any other law for the  time being  in force  on the  grant  of  bail.  It, therefore, follows  that the  power derived  by a Designated Court to grant bail to a person for an offence under the Act is derived  from the  Code and  not s. 20(8) of the Act. The controversy as  to the power of the High Court to grant bail

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under s.  439 of the Code must also turn on the construction of s. 20(8) of the Act. [241B-E]      In view  of the  explicit bar  in s.  19(2),  there  is exclusion  of   the  jurisdiction  of  the  High  Court.  It interdicts that  no appeal  or revision  shall  lie  to  any court, including  the  High  Court,  against  any  judgment, sentence or  order, not  being an inter-locutory order, of a Designated Court.  While it  is true  that Chapter XXXIII of the Code  is still  preserved, as  otherwise the  Designated Court would have no power to grant bail, still the source of power is  not s.  439 of  the Code but s. 437, being a court other than the High Court or the Court of Session. Any other view would  lead to an anomalous situation. If it were to be held that  the power of a Designated Court to grant bail was relatable to  section 439,  it would imply that not only the High Court  but also  the Court of Session would be entitled to grant  bail. The  power to  grant bail  under s.  439  is unfettered by any conditions and limitations like s. 437. It would run counter to the express prohibition contained in s. 20(8) of  the Act.  The Court  upheld the  view of  the High Court  that   it  had   no  jurisdiction   to  entertain  an application for  bail under  s. 439  or under  s. 482 of the Code. [243G-H; 244A-B,D]      As regards the approach which a Designated Court has to adopt while  granting bail in view of the limitations placed on such  power under  s. 20(8),  the  sub-section  in  terms places fetters  on the  power of  a Designated  Court on the grant of  bail and  limitations  specified  therein  are  in addition to the limitations under the Code. In view of these more  stringent   conditions,  a   Designated  Court  should carefully examine  every case  before  it  for  finding  out whether the provisions of the Act apply or not. A prayer for bail ought  not to  be  rejected  in  a  mechanical  manner. [244E-G]      The Designated  Courts had not in these cases carefully considered the  facts and circumstances and had rejected the bail applications  mechanically. In the criminal appeal, the facts were already set out. In 228 the special  leave petitions Nos. 2369 and 2469 of 1967, the prosecution  had   been  started  at  the  instance  of  the management of a textile mill. The other cases had arisen out of communal  riots. Normally,  such cases  have to  be dealt with under  the ordinary  procedure prescribed  by the Code, unless offences  under ss.  3 and 4 of the Act are made out. The Designated  Courts are  under  a  duty  to  examine  the circumstances closely  from this  angle. That  had not  been done. It  was, therefore  desirable to  set aside the orders passed by  the various Designated Courts and remit the cases for fresh consideration. [246D-F]      The appeal  and  the  special  leave  petitions  partly succeeded. While  upholding the  judgment and  order of  the High Court,  dismissing the  applications for  bail under s. 439 of  the Code  of Criminal  Procedure,  1973,  the  Court granted leave  and set  aside the  impugned orders passed by the various  Designated Courts  in the State, dismissing the applications for  bail, and  directed them  to consider each particular case  on merits  as to whether it fell within the purview of  s. 3  and/or s. 4 of the Act, and if so, whether the accused  in the facts and circumstances of the case were entitled to  bail while  keeping in  view the limitations on their powers under s. 20(8) of the Act. Where the Designated Courts find  that the  acts alleged  in the police report or complaint of  facts under  s. 14(1)  do not  fall within the purview of  s. 3  and/or s.  4 of  the Act,  they  shall  in

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exercise of  the powers  under s. 10 of the Act transfer the cases for trial to the ordinary criminal courts. The accused persons, enlarged  on bail by this Court, should continue to remain on  bail until their applications for bail were dealt with  by  the  Designated  Courts  with  advertence  to  the observations made above. [246F-H; 247A-B]      In Re  the Special  Courts Bill,  1978, [1979] 2 S.C.R. 476; Balchand  Jain v.  State of  Madhya Pradesh,  [1977]  2 S.C.R. 52; Ishwar Chand v. State of Himachal Pradesh, I.L.R. (1975) H.P.  569 and  V.C. Shukla  v. State  through C.B.I., [1980] Suppl. S.C.C. 92, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 3 13 of 1987 etc.      From the  Judgment and  order dated  12.6.1987  of  the Gujarat High Court in Misc. Appln. No. 680 of 1987      P.S. Poti, G.A. Shah, Shankar Ghosh, M.N. Shroff, Vimal Dave, M.R. Barot, E.C. Agarwala, Vijay Pandit, Ms. P. Bhatt, Shakil Ahmad Syed, N.M. Ghatate, S.V. Deshpande, B.R. Dutta, Mrs. H. Wahi, S.S. Khanduja, S.R. Srivastava, Mrs. R. Gupta, K.K. Gupta, 229 A.S. Bhasma and A.M. Khanwilkar,for the appearing parties.      The Judgment of the Court was delivered by      SEN,J.  This  appeal  by  special  leave  petition  are directed against  the judgment and order of the Gujarat High Court dated  May 12,  1987 and  the orders passed by various Designated Court  in the  State constituted under s. 9(1) of the Terrorist & Disruptive activities (prevention) Act, 1987 mainly raise  two questions of substantial importance. First of these  is as  to the  jurisdiction and  power of the High Court to  grant bail  under s.  439 of  the Code of Criminal Procedure, 1973  or by resource to its inherent powers under s. 482  to a  person held  in custody  accused of an offence under ss. 3 and 4 of the Act, and secondly, as to the nature of the  restraint placed  on the  power  of  the  Designated Courts  to  grant  bail  to  such  person  in  view  of  the limitations placed on such power under s. 20(8) of the Act.      By the  judgment under  appeal, the High Court has held that  under   the  Act  there  is  total  exclusion  of  the jurisdiction of  the High  Courts and  therefore  it  cannot entertain an  application for  grant of bail under s. 439 of the Code.  In other  cases, the persons under detention have applied for  grant of  special leave  under Art.  136 of the Constitution against the orders passed by various Designated Courts in  the State  refusing to  grant bail  on the ground that the  power of  a Designated  Court  to  grant  bail  is circumscribed by  the limitations  prescribed by s. 20(8) of the Act  i.e. due  to the  non-fulfilment of  the conditions laid down therein.      As to  the facts.  It is enough for our purposes to set out the  facts giving  rise to Civil Appeal No. 313 of 1987. The prosecution  case in brief is as follows. On the morning of March  10, 1987,  there was  an armed  clash between  the appellants who are members of a cooperative housing society, and the  two sons  of the original vendor Babubhai Kansara @ Mohamed Ramzan  Alabux and  their companions over possession of  the   disputed  plot  admeasuring  16,000  square  yards resulting in  multiple  injuries  to  members  of  both  the groups. The appellants as such members were in possession of the said  plot, and  as law  abiding citizens had instituted Civil Suit  No. 108 of 1987 in the Court of the Civil Judge,

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Junior Division,  Narol, applied  for and obtained temporary injunction and  had  gone  with  the  bailiff  to  have  the injunction order served on the opposite party. Their case is that they  had entered  into an  agreement dated  August 11, 1979 with the original vendor 230 Babubhai Kansara  for the purchase of the disputed plot. The price fixed  was Rs.  35 per square yard and Rs. 60,000 were paid as  earnest money.  They as such members of the society had also  paid from  time to  time by  instalments  a  total amount of  Rs.3,50,000 which  was equivalent  to 30%  of the total sale  consideration and  had been placed in possession of the  land by  the vendor  by  a  deed  acknowledging  the receipt of  money and mentioning the delivery of possession. After the  death of  the vendor,  his two sons Karam Ali and Iqbal Ali  disowned the  transaction  and  started  creating obstructions in the enjoyment of the land by the society, as a  result  of  which  on  March  9,  1987  the  society  was constrained to  institute the  aforesaid suit and obtained a temporary injunction,  and also a direction from the learned Civil Judge  ordering  the  Chief  Bailiff  to  execute  the injunction order  on the  two sons  of the  original vendor. They had  also intimated  the  police  about  the  grant  of injunction and  sought help  to prevent  breach of peace but the police  took no  action despite  the endorsement made by the Inspector  of  Police  on  their  application  directing P.S.I., Satellite  Station to  take appropriate  action  and prevent any  untoward incident. As apprehended, the two sons of the  original vendor Karam Ali and Iqbal Ali put up armed resistance and in the scuffle both sides sustained injuries. At the  time of the incident, the police arrived at the spot and  apprehended   the  appellants   The   appellants   were straightaway produced  before the  Designated Court within a period of  24 hours after their arrest without receiving the complaint of facts which constitute offences alleged to have been committed  or a  police report  as  required  under  s. 14(1). The  appellants moved an application for bail but the Designated Court  by its order dated March 24, 1987 rejected the same  holding that  there were no reasonable grounds for it to  believe that  the appellants  were not  guilty of  an offence under  s. 3  of the  Act apart  from  various  other offences under the Indian Penal Code, 1860.      We are  informed that  the  police  have  now  filed  a charge-sheet against  the appellants  before the  Designated Court for  having committed  offences punishable  under  ss. 143, 147,  148, 149,  307, 504,  324, 323  and 120B  of  the Indian Penal  Code, s. 27 of the Arms Act and ss. 3 and 4 of the Act.  It would  thus be seen that the police invoked the Act as  against  the  appellants  although  they  had  taken recourse to their legal remedy by filing a suit and obtained a  temporary  injunction  and  accompanied  the  bailiff  to execute the  order. They  were apprehended  and as  many  as eight of  them sustained  injuries.  Assuming  there  was  a scuffle wherein there was a free fight, the appellants being the owners  in possession  were entitled  to  act  in  self- defence. As against the two 231 sons of  the original  vendor, both  of whom  are  cited  as prosecution witnesses,  the police have filed a charge-sheet for the self-same offences except for the offences under ss. 3 and  4 of  the Act  in the  Court of  the  Chief  Judicial Magistrate, Narol as a result of which they are liable to be enlarged on  bail while the appellants cannot be, due to the constraints on  the powers of the Designated Courts to grant bail under  S. 20(8) of the Act. The Designated Court having

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refused to grant bail to the appellants, they moved the High Court by way of an application under s. 439 read with s. 482 of the Code. The High Court by its order dated June 12, 1987 rejected the  bail application  on the  ground that the High Court had  no jurisdiction to entertain any such application under s.  439 of  the Code  ar by  recourse to  its inherent powers under s. 482. The decision of the High Court proceeds on the  ground that  the Act  being a  special Act  and  the Designated Court  constituted by  the State Government under s. 9(1)  to try  the offences under the Act, was not a Court subordinate to  the High  Court, and further that in view of the provision  contained in  sub-s. (1)  of s. 19 of the Act which provided that an appeal as a matter of right shall lie against any  judgment or  order of the Designated Court, not being an  interlocutory order,  to the Supreme Court, and in view of  the explicit  bar contained  in sub-s.  (2) thereof which provided  that no  appeal or revision shall lie before any Court i.e. including the High Court, there was exclusion of  jurisdiction   of  the  High  Court  in  regard  to  the proceedings before  a Designated Court. Hence this appeal by special leave.      Facts in  the connected  special leave  petitions which are all  directed against  the orders  passed  by  different Designated Courts  rejecting the  applications for bail, are apt to differ from case to case. On the view that we take as to the  nature of  the function  of the Designated Courts in dealing with applications for bail within the constraints of s. 20(8),  it is  not necessary  to deal  with the  facts of these cases  in any detail. Broadly speaking, the cases fall into  three   distinct  categories,  namely:  (1)  Cases  of communal riots  resulting  in  offences  of  murder,  arson, looting etc.  where there  are overt  acts on  the  part  of persons of  one community  against the  other. (2) Incidents giving rise  to  acts  of  physical  violence  resulting  in communal riots  due to instigation. (3) Cases connected with trade-union  activities  started  at  the  instance  of  the management, or  at the  instance of  owners of  property  to settle private  disputes on  the allegations that there were acts of physical violence.      The  statutory  provisions  bearing  on  the  questions involved may be set out. Sub-s. (1) of s. 3 of the Act which gives a meaning to the 232 expression ’terrorist act’ is in the following terms:           "3.  (1)   Whoever  with  intent  to  overawe  the           Government as  by law  established  or  to  strike           terror in  the people or any section of the people           or to  alienate any  section of  the people  or to           adversely affect  the  harmony  amongst  different           sections of  the people  does any  act or thing by           using   bombs,   dynamite   or   other   explosive           substances or  inflammable substances or fire-arms           or other  lethal weapons  or  poisons  or  noxious           gases  or   other  chemicals   or  by   any  other           substances (whether  biological or otherwise) of a           hazardous nature  in such a manner as to cause, or           as is  likely to  cause, death of, or injuries to,           any person or persons or loss of, or damage to, or           destruction of,  property  or  disruption  of  any           supplies or  services essential to the life of the           community, or  detains any person and threatens to           kill or  injure such person in order to compel the           Government or  any other  person to  do or abstain           from doing any act, commits a terrorist act."      Sub-s. (2) thereof reads:

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         "(2) Whoever commits a terrorist act, shall,:                (i) if  such act has resulted in the death of                any  person,  be  punishable  with  death  or                imprisonment  for  life  and  shall  also  be                liable to fine;                (ii) in  any other  case be  punishable  with                imprisonment for  a term  which shall  not be                less than  five years but which may extend to                imprisonment  for  life  and  shall  also  be                liable to fine. "      Sub-s.  (1)   of  s.  4  provides  for  punishment  for disruptive activities and reads:           "4.(1) Whoever commits or conspires or attempts to           commit or  abets, advocates, advises, or knowingly           facilitates  the  commission  of,  any  disruptive           activity or  any act  preparatory to  a disruptive           activity shall be punishable with imprisonment for           a term which shall not be less than five years but           which may  extend to  imprisonment  for  life  and           shall also be liable to fine. " 233      Sub-s. (2)  thereof gives  a meaning  to the expression ’disruptive A activity’ and it is as follows:           "(2)  For   the  purposes   of  sub-section   (1),           "disruptive  activity"  means  any  action  taken,           whether by  act or  by speech or through any other           media or in any other manner whatsoever,                (i) which  questions, disrupts or is intended                to disrupt,  whether directly  or indirectly,                the sovereignty  and territorial integrity of                India; or                (ii) which  is intended  to  bring  about  or                supports  any   claim,  whether  directly  or                indirectly, for  the cession  of any  part of                India or  the secession  of any part of India                from the Union.           Explanation For the purposes of this sub-section,-                (a) "cession"  includes the  admission of any                claim of  any foreign  country to any part of                India, and                (b) "secession" includes the assertion of any                claim to  determine whether  a part  of India                will remain within the Union."      Sec. 19  ousts  the  jurisdiction  of  the  High  Court altogether and reads           "19.(1) Notwithstanding  anything contained in the           Code, an  appeal shall  lie as  a matter  of right           from any judgment, sentence or order, not being an           interlocutory order,  of a Designated Court to the           Supreme Court both on facts and on law.           (2) Except  as aforesaid,  no appeal  or  revision           shall lie to any court from any judgment, sentence           or order  including an  interlocutory order  of  a           Designated Court."      Sub-s. (8)  of s.  20 of the Act which has an important bearing on these cases is in these terms:           "(8) Notwithstanding  anything  contained  in  the           Code, no 234           person accused of an offence punishable under this           Act or  any rule  made  thereunder  shall,  if  in           custody, be  released on  bail or  on his own bond           unless                (a) the  Public Prosecutor  has been given an                opportunity to  oppose  the  application  for

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              such release, and                (b) where  the Public  Prosecutor opposes the                application,  the  court  is  satisfied  that                there are  reasonable grounds  for  believing                that he  is not  guilty of  such offence  and                that he  is not  likely to commit any offence                while on bail." Sub-s. (9) thereof provides that the limitations on granting of bail  specified in  sub-s. (8)  are in  addition  to  the limitations under  the Code  or any  other law  for the time being in force on granting of bail.      In support  of the  appeal and  the  connected  special leave petitions,  learned counsel for the appellants and the petitioners, put  forth the  following submissions,  namely: (1) Part  III of  the Act  is ’supplemental’ to the Code and the Code  still applies  except to the extent that it stands modified by  the provisions  of the  Act,  and  particularly those contained  in Part  IV. (2)  While s.  11(1) creates a special tribunal for trial of offences under s. 3 or s. 4 of the Act  viz.  the  Designated  Courts  constituted  by  the Central or  the State  Government under s. 9(1), the various sub-sections of  s. 14 provide that the procedure and powers of such  Designated Courts  shall be  as specified  therein. Particular emphasis  is laid upon the provision contained in sub-s. (3) thereof which reads:           " 14(3)  . Subject to the other provisions of this           Act, a  Designated Court shall, for the purpose of           trial of  any offence,  have all  the powers  of a           Court of  Session and shall try such offence as if           it were  a Court  of Session  so far  as may be in           accordance with  the procedure  prescribed in  the           Code for the trial before a Court of Session . " (3)The ’source of power’ of a Designated Court to grant bail is not  s. 20(8)  of the Act but s. 439 of the Code and that s. 20(9) only places limitations on such power. This is made explicit by  s. 20(9) which provides that the limitations on the granting  of  bail  specified  in  sub-s.  (8)  are  ’in addition to  the limitations under the Code or any other law for the time being in force’. (4) Though the legislature has made an 235 express provision in s. 20(7) of the Act which provides that nothing in  s.438 of  the Code which deals with the power of the High Court or the Court of Session to grant anticipatory bail, shall apply in relation to a case involving the arrest of any  person on  an  accusation  of  having  committed  an offence  punishable   under  the   Act  or   any  rule  made thereunder, there  is no like provision making s. 439 of the Code dealing  with the  power of the High Court or the Court of Sessions to grant bail. A fortiori, Chapter XXXIII of the Code is  still preserved  as otherwise the Designated Courts would have no power to grant bail.      As regards the jurisdiction and power of the High Court to grant bail under s. 439 of the Code or by recourse to its inherent powers  under s.  482, the  contention on behalf of the appellants and the petitioners is that Chapter XXXIII of the  Code  being  applicable,  the  source  of  power  of  a Designated Court  to grant  bail being s. 439, the necessary concomitant is  that the  jurisdiction and power of the High Court to  entertain an application for bail on its own under s. 439  or by  recourse to its inherent powers under s. 482, is applicable.  The argument is that it is impermissible for the  legislature  to  set  up  a  new  hierarchy  of  Courts different from  the one  envisaged by  the Constitution  and byepass the  High Court.  Under the  Constitution  the  High

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Court is the repository of all judicial authority within the State. To  take away  the power  of the  High Court would be tantamount  to   strike  at   the  very   foundation  of  an independent judiciary,  free from  executive control.  It is pointed out  that s.  20(4) of  the Act  makes s. 167 of the Code applicable  in relation  to a case involving an offence punishable-under  the  Act,  subject  to  the  modifications specified therein.  Cl. (a)  thereof provides that reference in sub-s.  (1) of  s. 167  to ’Judicial Magistrate’ shall be construed as  reference to ’Judicial Magistrate or Executive Magistrate or  Special Executive  Magistrate’, while cl. (b) provides that  references in  sub-s. (2)  of that section to ’fifteen days’, ’ninety days’ and ’sixty days’ wherever they occur, shall  be construed  as references  to ’sixty  days’, ’one year’  and ’one  year’ respectively.  The effect of the amendment to  s. 167  by s. 20(4) is to invest the Executive Magistrates, who  are not subject to the control of the High Court, with  an unlimited  power to  grant police  remand or remand to  judicial custody  without the filing of a challan for indefinite  duration from  time to time upto a period of one year. It is said that the affect of this virtually means detention without  trial. The  learned  counsel  accordingly characterised the  Act as ’a piece of draconian legislation’ which makes serious in-roads into the rights of the citizens to  life  and  liberty  guaranteed  under  Art.  21  of  the Constitution without the constitutional safeguards enshrined in Art. 22. However, it was expressly stated 236 before us that the constitutionality of the Act is not under challenge in these cases and that this question is under the consideration of  a larger  bench of  this Court  in another case      Our  attention  was  particularly  drawn  to  the  view expressed by  Chandrachud, CJ  in  delivering  the  majority opinion in  the Presidential  reference in  Re  the  Special Courts Bill,  1978 (1979)  2 SCR  476 where the Court upheld the Special  Courts Bill mainly because of the provision for appointment of  a sitting High Court Judge as a Judge of the Special Court  as a  sufficient safeguard  against Executive interference. The learned Chief Justice in the course of his judgment observed: "It is of the greatest importance that in the name  of fair  and unpolluted justice, the procedure for appointing a  Judge of the Special Court, should inspire the confidence not  only  of  the  accused  but  of  the  entire community. Administration  of justice has a social dimension and the  society at large has a stake in impartial and even- handed justice."  It is  pointed out  that  the  Act  though patterned on  the lines  of the  Special  Courts  Act,  1979 instead  leaves   it  to   the  discretion  of  the  Central Government or  a State  Government, as  the case  may be  to appoint a  person of  their choice,  to be  a Judge  of  the Designated Court.  It is  further pointed out that the State Government has  under s.  9(4) of  the Act appointed retired District Judges  to be  Judges of  some  of  the  Designated Courts in  the State,  constituted  under  s.  9(1).  It  is apprehended  that   a  retired   District  Judge   would  be completely at  the mercy  of the Executive. Essentially, the submission is  that the creation of a Designated Court which is not  subject to  the control  and superintendence  of the High Court  is detrimental  to the constitutional concept of judicial  independence.   It   is   apprehended   that   the entrustment of  the power  to the  Executive Magistrates  to grant police  remand extending over one year by amendment of sub-s. (1)  of s. 167 of the Code was capable of misuse. Our attention was  also drawn  to the  various provisions of the

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Act which  take away  the various  safeguards provided to an accused as  provided in  the Code  as well  as s.  25 of the Evidence Act which, according to the learned counsel, offend against Art.  21 of the Constitution. See: ss. 11(2), 14(2), 14(5), 15(1), 16(1), (2) and (3), and 21(2). It is said that the procedure contemplated by Art. 21 must be right and just and  fair,   and  not  arbitrary,  fanciful  or  oppressive. Otherwise,  it  would  not  be  procedure  at  all  and  the requirements of  Art. 21  would not  be satisfied. We do not think  it  necessary  to  go  into  these  aspects  for  the constitutionality of  the Terrorist  & Disruptive Activities (Prevention) Acts, 1985 and 1987 and their provisions is not a question  before us.  We feel  that these questions should best be left open to be dealt with by the Constitution Bench 237      At  the   very  outset,   Shri  Poti,  learned  counsel appearing for  the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach  the High  Court under  Art. 226  or Art. 227 or move this Court by a petition under Art. 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that  a citizen  can always move the High Court under Art. 226 or Art. 227 or this Court under Art. 32 challenging the constitutional  validity of the Act or its provisions on the ground  that they  offend against Arts. 14, 21 and 22 or on the  ground that  a notification  issued by  the  Central Government or  the State Government under s. 9(1) of the Act constituting a Designated Court for any area or areas or for such case  or class  or group  of cases  as specified in the notification,   was    a   fraud    on   powers   and   thus constitutionally invalid.      As to  the merits,  the submissions advanced by learned counsel for  the State  Government proceeded more or less on these lines.  Where an  enactment provides  for  a  complete procedure for  the trial  of certain  offences, it  is  that procedure that  must be  followed and not the one prescribed by the  Code. Under  s.  14(1),  the  Designated  Court  has exclusive jurisdiction for the trial of such offences and by virtue of  s. 12(1),  the Designated  Court may also try any other offence  with which the accused may under the Code, be charged at  the same  trial if the offence is connected with such other  offence. Where there is a special enactment on a specific subject  as the  Act in question which is a special law, the  Act as  a special  Act must be taken to govern the subject and  not the  Code in  the absence of a provision to the contrary. The legislature by the use of the words ’as if it were’  in s.  14(3) endowed  a Designated  Court with the status of  a Court of Session, but the legal fiction must be restricted to procedure alone, that is to say, the procedure for the  trial of  an offence must be in accordance with the procedure prescribed under the Code for trial before a Court of Session,  insofar as applicable. But some meaning must be given to the opening words of s. 14(3) ’Subject to the other provisions of  the Act’.  Where an  enactment provides for a complete procedure  for the  trial of an offence, it is that procedure that  must be  followed and not the one prescribed by the Code.      Our attention  was drawn  to s.  4(1) of the Code which provides that all offences under the Indian Penal Code, 1860 shall be  investigated, inquired  into, tried, and otherwise dealt with  according to  the provisions  contained  therein i.e. in  accordance with  the procedure prescribed under the Code. Sub-s. (2) thereof however engrafts an 238

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exception to  the general  rule as  to the  procedure to  be followed for  the A  trial of offences under any other laws, and it reads:           "4(2). All  offences under any other laws 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  other           vise dealing with such offences". In support  of the  contention  that  the  procedure  to  be followed is  the special  procedure laid  down by  the  Act, reliance is  placed on  s. S  of the  Code which is in these terms:           "(5). 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." It is submitted that there is no express provision excluding the applicability  of s.  439 of the Code similar to the one contained in  s. 20(7)  of the  Act in  relation to any case involving the  arrest of  any person  on  an  accusation  of having committed  an offence punishable under the Act or any rule made  thereunder, but  that result  must, by  necessary implication, follow.  According to  the learned counsel, the source of  power of  a Designated Court to grant bail is not s. 439 of the Code but s. 437 which speaks of ’a Court other than a  High Court or a Court of Session’ and it, insofar as material, reads as follows:           "437(1). When  bail may  be taken  in case of non-           bailable offence-When  any person  accused of,  or           suspected of,  the commission  of any non-bailable           offence is arrested or detained without warrant by           an  officer-in-charge   of  a  police  station  or           appears or  is brought  before a  Court other than           the High  Court or  Court of  Session, he  may  be           released on bail ... "                                          (Emphasis supplied)      Before dealing  with the  contentions advanced,  it  is well to  remember that  the legislation  is limited  in  its scope and  effect. The  Act is  an  extreme  measure  to  be resorted to  when the  police cannot  tackle  the  situation under the ordinary penal law. The intendment is to pro- 239 vide special  machinery to  combat  the  growing  menace  of terrorism in different parts of the country. Since, however, the Act  is a  drastic measure,  it should not ordinarily be resorted to  unless the Government’s law enforcing machinery fails.      As  a  matter  of  construction,  we  must  accept  the contention advanced  by learned  counsel appearing  for  the State Government  that the  Act being  a  special  Act  must prevail in respect of the jurisdiction and power of the High Court to  entertain an  application for bail under s. 439 of the Code or by recourse to its inherent powers under s. 482. Under the  scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence  punishable   under  the   Act  or   any  rule  made thereunder. There  is contrariety  between the provisions of the Act and those contained in the Code. Under the Code, the High Court  is invested with various functions and duties in

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relation to  any judgment  or order passed by criminal court subordinate to  it. Those  powers may be briefly enumerated, namely, the  jurisdiction and  power to hear an appeal under s. 374  against any judgment or sentence passed by the Court of Session,  the power to hear an appeal against an order of acquittal by a criminal court including the Court of Session under s.  378, the  power to  hear a  reference  as  to  the validity  of.  any  Act,  ordinance  or  regulation  or  any provision contained  therein made  by a criminal court under s. 395,  the confirmation of a death sentence on a reference by a  Court of  Session under  ss. 366-371  and s.  392, the power  to  grant  bail  under  s.  439  subject  to  certain limitations, the  inherent power  under s.  482 to make such orders as  may be  necessary or  to  prevent  abuse  of  the process of  the Court  or otherwise  to secure  the ends  of justice. Undoubtedly,  the High  Court has  the jurisdiction and power  to pass  such  orders  as  the  ends  of  justice require, in  relation to  proceedings  before  all  criminal courts subordinate to it.      The  legislature   by  enacting  the  law  has  treated terrorism as  special criminal problem and created a special court called  a Designated  Court to  deal with  the special problem and  provided for  a special procedure for the trial of such  offences. A  grievance was  made before us that the State Government by notification issued under s. 9(1) of the Act has  appointed District  & Sessions  Judges as  well  as Additional District  & Sessions  Judges to be Judges of such Designated Courts  in the  State. The use of ordinary courts does not  necessarily imply  the use of standard procedures. Just as  the legislature  can create a special court to deal with a special problem, it can also create new 240 procedures within  the existing  system. Parliament  in  its wisdom has  adopted the  frame-work of the Code but the Code is not  applicable. The  Act is  a special Act and creates a new class  of offences  called terrorist acts and disruptive activities as  defined in ss. 3(1) and 4(2) and provides for a special procedure for the trial of such offences. Under s. 9(1), the  Central Government  or a  State Government may by notification published  in the  official Gazette, constitute one or  more Designated  Courts for  the trial  of  offences under the  Act for  such area  or areas, or for such case or class  or  group  of  cases  as  may  be  specified  in  the notification. The  jurisdiction and  power of  a  Designated Court is  derived from  the Act  and it  is the Act that one must primarily  look to  in deciding the question before us. Under  s.   14(1),  a   Designated   Court   has   exclusive jurisdiction for  the trial of offences under the Act and by virtue of  s. 12(1)  it may  also try any other offence with which the  accused may,  under the  Code, be  charged at the same trial  if the  offence is  connected  with  such  other offence. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code.      No doubt,  the legislature  by the use of the words ’as if it were’ in s. 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by learned  counsel for  the  State  Government,  the  legal fiction  contained   therein  must   be  restricted  to  the procedure to  be followed  for the trial of an offence under the Act  i.e. such  trial must  be in  accordance  with  the procedure prescribed  under the  Code for the trial before a Court of  Session, insofar  as applicable. We must give some meaning to  the opening  words of  s. 14(3)  ’Subject to the other provisions  of the  Act’ and  adopt a  construction in

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furtherance of  the object  and  purpose  of  the  Act.  The manifest intention  of the  legislature is  to take away the jurisdiction and power of the High Court under the Code with respect to  offences under the Act. No other construction is possible. The  expression ’High  Court’  is  defined  in  s. 2(1)(e) but  there are no functions and duties vested in the High Court.  The only  mention of  the High  Court is  in s. 20(6) which provides that ss. 366-371 and s. 392 of the Code shall apply  in relation  to a  case  involving  an  offence triable by  a Designated Court, subject to the modifications that the  references to  ’Court of Session’ and ’High Court’ shall be  construed as  references to ’Designated Court’ and ’Supreme Court’ respectively. Sec. 19(1) of the Act provides for a  direct appeal, as of right, to the Supreme Court from any judgment  or order of the Designated Court, not being an interlocutory order.  There is  thus a  total departure from different classes of Criminal 241 Courts enumerated in s. 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to  the Supreme Court from any judgment or order of a Designated Court,  not being  an  interlocutory  order,  and substituting the  Supreme Court  for the  High Court  by  s. 20(6) in  the matter  of confirmation  of a  death  sentence passed by a Designated Court.      Though there  is no  express  provision  excluding  the applicability of  s. 439  of the  Code similar  to  the  one contained in  s. 20(7)  of the  Act in  relation to  a  case involving the  arrest of  any person  on  an  accusation  of having committed  an offence punishable under the Act or any rule made  thereunder, but  that result  must, by  necessary implication, follow.  It is true that the source of power of a Designated  Court to grant bail is not s. 20(8) of the Act as it  only places  limitations on  such power. This is made explicit by  s. 20(9)  which enacts  that the limitations on granting of  bail specified  in s. 20(8) are ’in addition to the limitations under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to s. 439 of  the Code.  It cannot  be. doubted  that a Designated Court is  ’a Court other than the High Court or the Court of Session’ within  the meaning  of s.  437 of  the  Code.  The exercise of the power to grant bail by a Designated Court is not only  subject to  the limitations contained therein, but is also subject to the limitations placed by s. 20(8) of the Act.      The controversy  as to  the power  of the High Court to grant bail  under s.  439 of  the Code must also turn on the construction of  s. 20(8)  of the  Act. It  commences with a non-obstante clause  and in its operative part by the use of negative language  prohibits the  enlargement on bail of any person accused of commission of an offence under the Act, if in custody,  unless two  conditions are satisfied. The first condition  is   that  the   prosecution  must  be  given  an opportunity to  oppose the  application for such release and the second condition is that where there is such opposition, the Court  must  be  satisfied  that  there  are  reasonable grounds for  believing that he is not guilty of such offence and that  he is  not likely  to commit  any offence while on bail. If  either of  these two  conditions is not satisfied, the ban  operates and  the person  under detention cannot be released on  bail. It  is quite  obvious that  the source of power of a Designated Court to grant bail is not s. 20(8) of the Act  but it only places limitations on such powers. This is implicit  by s.  20(9) which  in terms  provides that the

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limitations on  granting of bail specified in sub-s. (8) are in addition  to the  limitations under the Code or any other law for  the time  being in  force on  granting of  bail. It there- 242 fore follows that the power derived by a Designated Court to grant bail  to a person accused of an offence under the Act, if in  custody, is  derived from  the Code  and not  from s. 20(8) of the Act.      In Balchand  Jain v.  State of Madhya Pradesh, [1977] 2 SCR 52  while interpreting  a similar provision contained in r. 184  of the Defence and Internal Security of India Rules, 1971,  Bhagwati,   J.  speaking  for  a  three  Judge  Bench observed:           "The Rule, on its plain terms, does not confer any           power on  the Court to release a person accused or           convicted of  contravention of  any Rule  or order           made under  the Rules,  on bail. It postulates the           existence of  power in the Court under the Code of           Criminal Procedure  and seeks  to place  a curb on           its exercise by providing that a person accused or           convicted of  contravention of  any Rule  or order           made under  the Rules, if in custody, shall not be           released  on   bail  unless   the  aforesaid   two           conditions are  satisfied. It  imposed fetters  on           the exercise  of the  power of  granting  bail  in           certain kinds of cases and removes such fetters on           fulfilment of  the aforesaid  two conditions. When           these two  conditions are  satisfied, the  fetters           are  removed   and  the  power  of  granting  bail           possessed by  the Court under the Code of Criminal           Procedure revives  and  becomes  exercisable.  The           non-obstante clause  at the  commencement  of  the           Rule also  emphasises that  the provision  in  the           Rule is intended to restrict the power of granting           bail under  the Code of Criminal Procedure and not           to confer  a new power exercisable only on certain           conditions. It is not possible to read Rule 184 as           laying down  a self-contained  code for  grant  of           bail in  case of  a person accused or convicted of           contravention of  any Rule or order made under the           Rule so  that the power to grant bail in such case           must be found only in Rule 184 and not in the Code           of  Criminal   Procedure.  Rule   184  cannot   be           construed as  displacing altogether the provisions           of the  Code of  Criminal Procedure  in regard  to           bail in  case of  a person accused or convicted of           contravention of  any Rule or order made under the           Rules. These  provisions of  the Code  of Criminal           Procedure must  be read  along with  Rule 184  and           full effect must be given to them except in so far           as they  are, by reason of the non-obstante clause           overridden by rule 184." 243 The learned  Judge placing  emphasis on  the  words  ’if  in custody’ in r. 184, further observed:           "It is  an application  for release of a person in           custody that  is contemplated  by Rule 184 and not           an application for grant of ’anticipatory bail’ by           a person apprehending arrest. Section 438 and Rule           184 thus operate at different stages, one prior to           arrest and the other, after arrest and there is no           overlapping between  two provisions  so as to give           rise to a conflict between them. And consequently,           it must  follow as a necessary corollary that Rule

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         184 does  not stand  in the  way  of  a  Court  of           Session or  a High  Court  granting  ’anticipatory           bail’ under  section 438  to a person apprehending           arrest  on   an  accusation  of  having  committed           contravention of  any Rule or order made under the           (Defence and  Internal Security  of India)  Rules,           1971."      Upon that  view, the Court in Balchand Jain’s case held that r.  184 of  the Defence  and Internal Security of India Rules, 1971,  does not  take away  the power  conferred on a Court of Session or a High Court under s. 438 of the Code to grant anticipatory  bail.  We  have  been  referred  to  the decision of R.S. Pathak, CJ speaking for a Division Bench of the Himachal  Pradesh High Court in Ishwar Chand v. State of Himachal Pradesh,  ILR (1975) HP 569 holding that r. 184 did not affect  the jurisdiction  and power  of the  High  Court under ss.  438 and 439 of the Code which were independent of the power  of the  special tribunal  to try  an offence  for contravention of  an order  made under s. 3 of the Defence & Internal Security  of India  Act, 1971. Both these decisions are clearly  distinguishable. The view expressed in Balchand Jain’s case  is not  applicable at  all for  more  than  one reason. There was nothing in the Defence & Internal Security of India  Act or  the Rules  framed thereunder  which  would exclude  the  jurisdiction  and  power  of  the  High  Court altogether. On  the contrary, s. 12(2) of that Act expressly vested in  the High  Court  the  appellate  jurisdiction  in certain specified  cases. In  view of the explicit bar in s. 19(2), there  is exclusion  of the  jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any Court,  including the  High Court, against any judgment, sentence or  order, not  being an  interlocutory order, of a Designated Court.  The Act  by s. 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further, while it is true that Chapter XXXIII of the Code is still preserved  as otherwise  the Designated  Courts  would have no  power to  grant bail,  still the source of power is not s. 439 of the Code but s. 437 being a Court other 244 than the  High Court or the Court of Session. Any other view would lead  to an anomalous situation. If it were to be held that the  power of  a Designated  Court to  grant  bail  was relatable to  s. 439  it would  imply that not only the High Court but  also the  Court of  Session would  be entitled to grant bail  on such  terms as  they deem  fit. The  power to grant bail  under s. 439 is unfettered by any conditions and limitations like s. 437. It would run counter to the express prohibition contained  in s.  20(8) of the Act which enjoins that notwithstanding anything in the Code, no person accused of an  offence punishable  under the  Act or  any rule  made thereunder shall,  if in custody, be released on bail unless the  conditions  set  forth  in  clauses  (a)  and  (b)  are satisfied. Lastly,  both the  decision in  Balchand Jain and that in  Ishwar Chand  turn on  the scheme  of the Defence & Internal Security  of India  Act, 1971.  They proceed on the well recognised  principle that an ouster of jurisdiction of the ordinary  Courts is not to be readily inferred except by express  provision  or  by  necessary  implication.  It  all depends on  the scheme  of the  particular Act as to whether the power  of the  High Court  and the  Court of  Session to grant bail under ss. 438 and 439 exists. We must accordingly uphold the  view expressed  by the High Court that it had no jurisdiction to  entertain an  application for bail under s. 439 or under s. 482 of the Code.      That takes us to the approach which a Designated Court

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has to  adopt while granting bail in view of the limitations placed on  such power  under s.  20(8). The  sub-section  in terms places  fetters on  the power of a Designated Court on granting of  bail and  the limitations specified therein are in addition  to the  limitations under  the Code.  Under  s. 20(8), no  person accused of an offence punishable under the Act or  any rule  made thereunder  shall, if  in custody  be released  on  bail  or  on  his  own  bond  unless  the  two conditions specified  in cls.  (a) and (b) are satisfied. In view of  these more  stringent conditions a Designated Court should carefully  examine every  case coming  before it  for finding out  whether the provisions of the Act apply or not. Since before  granting bail  the Court  is  called  upon  to satisfy  itself   that  there  are  reasonable  grounds  for believing that  the accused  is innocent  of the offence and that he  is not  likely to commit any offence while on bail, the allegations  of fact,  the police  report along with the statements in  the case  diary and other available materials should be  closely examined.  A prayer for bail ought not to be rejected in a mechanical manner.      At the  conclusion of  the hearing on the legal aspect, Shri  Poti,   learned  counsel   appearing  for   the  State Governrment contended, on 245 instructions, that an order passed by a Designated Court for grant or  refusal of  bail is  not an  ’interlocutory order’ within the  meaning of  s. 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the  correctness   of  the   proposition.   The   expression ’interlocutory  order’   has  been   used  in  s.  19(1)  in contradistinction to  what  is  known  as  final  order  and denotes an  order of purely interim or temporary nature. The essential test  to distinguish  one from  the other has been discussed  and   formulated  in  several  decisions  of  the Judicial Committee  of the  Privy Council, Federal Court and this Court.  One of  the tests  generally  accepted  by  the English Courts  and the Federal Court is to see if the order is decided  in one way, it may terminate the proceedings but if decided  in  another  way,  then  the  proceedings  would continue. In  V. C.  Shukla v.  State through C.B.I., [1980] Suppl. SCC  92, Fazal  Ali, J.  in delivering  the  majority judgment reviewed  the entire  case law  on the  subject and deduced therefrom  the following two principles, namely, (i) that  a  final  order  has  to  be  interpreted  in  contra- distinction to  an interlocutory  order; and  (ii) that  the test for determining the finality of an order is whether the judgment or  order finally  disposed of  the rights  of  the parties. It  was observed  that these  principles  apply  to civil as well as to criminal cases. In criminal proceedings, the word  ’judgment’ is intended to indicate the final order in trial  terminating in  the conviction or acquittal of the accused. Applying  these tests,  it was  held that  an order framing a  charge against  an accused  was not a final order but an interlocutory order within the meaning of s. 11(1) of the Special  Courts Act,  1979 and therefore not appealable. It cannot  be doubted  that the  grant or  refusal of a bail application is  essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the  refusal of  bail by  a Designated Court due to the non-fulfilment of  the conditions  laid  down  in  s.  20(8) cannot be  treated to  be a  final order  for it affects the life or liberty of a citizen guaranteed under Art. 21. While it is  true that  a person  arraigned on  a charge of having committed an  offence  punishable  under  the  Act  faces  a

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prospect of prolonged incarceration in view of the provision contained in  s. 20(8) which places limitations on the power of a  Designated Court  to grant bail, but that by itself is not decisive  of the question as to whether an order of this nature  is  not  an  interlocutory  order.  The  Court  must interpret the  words ’not being an interlocutory order’ used in s.  19(1) in  their natural  sense in  furtherance of the object and  purpose of  the Act  to exclude any interference with  the  proceedings  before  a  Designated  Court  at  an intermediate stage.  There is  no finality  attached  to  an order of a Designated Court grant- 246 ing or  refusing bail.  Such an  application  for  bail  can always be  renewed from  time to  time. That  being so,  the contention advanced  on behalf  of the State Government that the impugned orders passed by the Designated Courts refusing to grant  bail were  not interlocutory  orders and therefore appealable under s. 19(1) of the Act, cannot be accepted.      Surprisingly enough,  a few  days after the hearing had concluded and  the judgment  reserved, the  State Government adopted a different stand in another case and contended that an order refusing to grant bail due to non-fulfilment of the conditions  laid  down  in  s.  20(8)  of  the  Act  was  an interlocutory order.  We  really  fail  to  appreciate  such inconsistent stands  being taken by the same government on a question of principle.      In view of the stand adopted by the State Government in these cases,  we with  the assistance of the learned counsel for the  parties went  through the  facts of  each case.  We regret to find that the Designated Courts have not carefully considered the facts and circumstances and have rejected the applications for  bail mechanically.  As already  mentioned, the cases  fall into  three broad  categories. The  facts in Criminal Appeal  No. 313  of 1987 have been set out earlier. In Special  Leave Petitions  Nos. 2369  and 2469 of 1987 the prosecution  has   been  started  at  the  instance  of  the management  of  a  textile  mill  in  Ahmedabad.  The  other category  of  cases  have  arisen  out  of  communal  riots. Normally such cases have to be dealt with under the ordinary procedure prescribed  by the Code, unless offences under ss. 3 and  4 of the Act are made out. The Designated Courts were under a  duty to examine the circumstances closely from this angle. That  has not  been done. It is, therefore, desirable to set  aside the  orders passed  by the  various Designated Courts and remit the cases for fresh consideration.      Accordingly, the appeal and the special leave petitions partly succeed and are allowed. While upholding the judgment and order  of the High Court dismissing the applications for bail under s. 439 of the Code of Criminal Procedure, 1973 we grant leave  and set aside the impugned orders passed by the various  Designated  Courts  in  the  State  dismissing  the applications for  bail and  direct  them  to  consider  each particular case  on merits as to whether it falls within the purview of  ss. 3  and/or 4  of the  Terrorist &  Disruptive Activities (Prevention)  Act, 1987;  and if  so, whether the accused in  the facts  and circumstances  of the  case  were entitled to  bail while  keeping in  view the limitations on their powers under s. 20(8) of the Act. Where the Designated Courts 247 find that the acts alleged in the police report or complaint of facts  A under s. 14(1) do not fall within the purview of ss. 3  and/ or  4 of  the Act, they shall in exercise of the powers under  s. 10  of the Act transfer the cases for trial to the  ordinary criminal  courts. The  accused persons  who

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have been  enlarged on  bail by this Court shall continue to remain on  bail until  their applications for bail are dealt with  by  the  Designated  Courts  with  advertence  to  the observations made above. S.L.                Appeal & Petitions partly allowed. 248