TMI Blog1988 (3) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 sons of the original vendor, both of whom are cited as prosecution witnesses, the police have filed a charge-sheet for the self-same off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has an important bearing on these cases is in these terms: (8) Notwithstanding anything contained in the Code, no 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 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 containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 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 At the very outset, Shri Poti, learned counsel appearing for the State Government with his usual fairness, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y s. 20(9) which in terms 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. It there-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclude 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 granting 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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