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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.