Supreme Court of India
STATE OF ANDHRA PRADESH THROUGH I.G. NATIONAL INVESTIGATION AGENCYversusMD. HUSSAIN @ SALEEM
- Citation
- 2013 INSC 616
- Decided
- 13 September 2013
- Disposal
- Dismissed
- Bench
- H L GOKHALE
Holding
An appeal against an order granting or refusing bail under the NIA Act lies only to the High Court and must be heard by a bench of two judges, and the original bail application must be filed before the Special Court, not the High Court.
Summary
The accused, MD Hussain, was charged with offences under the Maharashtra Control of Organised Crime Act, the Unlawful Activities (Prevention) Act and other statutes, and the investigation was taken over by the National Investigation Agency (NIA). He filed a bail application before a single judge of the Bombay High Court, invoking Section 439 of the CrPC and the MCOC Act. The questions before the Supreme Court were whether an appeal against a bail order of a Special Court under the NIA Act falls within Section 21(1) or the specific provision of Section 21(4), and whether such an appeal must be heard by a bench of two High Court judges, and also whether the original bail application should be filed before the Special Court rather than the High Court. The Court held that, under the NIA Act, bail applications must be made to the Special Court, and any appeal against a bail order lies only to the High Court and must be heard by a bench of two judges as mandated by Section 21(2). Consequently, the bail application filed before the High Court was not maintainable. The criminal miscellaneous petitions seeking clarification were dismissed.
Issues considered
- The scope of Section 21 of the National Investigation Agency Act, 2008 with respect to appeals against orders granting or refusing bail and the requirement of a two‑judge bench.
- Whether a bail application in matters triable by a Special Court under the NIA Act is maintainable before the High Court under Sections 439/482 of the CrPC.
- Interpretation of the term 'interlocutory order' within the NIA Act and its impact on appealability.
Legislation cited
- Code of Criminal Procedure, 1973s. 378, s. 439, s. 482
- Maharashtra Control of Organised Crime Act, 1999s. 21(4)
- National Investigation Agency Act, 2008s. 13, s. 14, s. 16, s. 19, s. 21, s. 2(g)
- Unlawful Activities (Prevention) Act, 1967
Subjects
NIA ActbailSpecial CourtappealSection 21interlocutory ordertwo‑judge benchjurisdictionMCOC ActUAPA
Judgment
[2013] 11 S.C.R. 140
A STATE OF ANDHRA PRADESH THROUGH 1.G. NATIONAL
INVESTIGATION AGENCY
v.
MD. HUSSAIN @ SALEEM
CRL. M.P. NQs. 17570 & 17571/2013
B IN
SPECIAL LEAVE PETITION (CRL.) Nos. 7375/2012
SEPTEMBER 13, 2013
[H.L. GOKHALE AND J. CHELAMESWAR, JJ.]
c
National Investigation Agency Act, 2008 - s.21 -Appeal
from order of the Special Court under the Act, refusing or
granting bail - Held: Shall lie only to a bench of two Judges
of the High Court.
D
National Investigation Agency Act, 2008- ss.2(g), 13, 14
and 16 - Bail application - Maintainability - Held: Where the
NIA Act applies, the original application for bail shall lie only
before the Special Court under the Act, and not before the
E High Court either u/s.439 or u/s.482 CrPC.
Interpretation of Statute - Construction of a section -
Held: A Section is required to be read purposively and
meaningfully - It is to be read in its entirety, and its sub-
sections are to be read in relation to each other, and not
F disjunctively - A few sub-sections of a section cannot be
separated from other sub-sections, and read to convey
something a/together different from tf)e theme underlying the
'entire section.
G Issue pertaining to interpretation of Section 21 of the
National Investigation Agency Act, 2008 arose for
consideration in the present appeal.
The applicant-accused, besides other offences, was
H 140
STATE OF A. P. THR. 1.G. NATIONAL INV. AGENCY v. 141
MD. HUSSAIN @ SALEEM
also being prosecuted for "Scheduled Offences" under A
the said Act. Based on the premise that the order granting
or refusing a bail is an interlocutory order, two-fold
submissions were made on behalf of the applicant-
accused:-
B
(i) That the order on a bail application is excluded
from ~he coverage of Section 21 (1) of the Act, which
provides for the appeals to the High Court from any
judgment, sentence or order of a special court both
on facts and on law. It is only such appeals which
are covered under Section 21(1) that are to be heard C
by a bench of two judges of the High Court as laid
down under Section 21 (2) of the Act. The appeal
against refusal of bail lies to the High Court under
Section 21 (4) and not under Section 21 (1 ), and
therefore, it need not be heard by a bench of two 0
Judges.
(ii) In any case, the bail application which the
applicant had filed before the High Court was one
under Section 21 (4) of the Maharashtra Control of E
Organised Crimes Act, 1999 read with Section 439
CrPC, and was fully maintainable before a single
Judge.
Dismissing the petitions, the Court
F
HELD: 1. In the instant case, the applicant is also
being prosecuted for the offences under the provisions
of The Unlawful Activities (Prevention) Act, 1967. This Act
is included at SI. No.2 in the Schedule to the NIA Act,
2008. The term "Scheduled Offence" is defined under G
Section 2(g) of the Act to mean an offence specified in
the Schedule. Section 13 of the Act lays down the
jurisdiction of Special Courts. When it comes to the
Scheduled Offences, the Special Courts are given
H
142 SUPREME COURT REPORTS [2013] 11 S.C.R.
A exclusive jurisdiction to try them under Section 13(1) of
the National Investigation Agency Act, 2008. When it is a
composite offence cove.red under any Act specified in
the Schedule and some other act, the trial of S.!JCh
offence is also to be conducted before the Special Court
B in view of Section 14(1) of the Act. Section 16(2) of the
Act gives the power to the Special Court to conduct a
summary trial, where the offence is punishable wittl
imprisonment for a term not exceeding three years or,
with fine or both. In view of Section 16(3) of the Act, the
c application for bail by the accused lies before a Special
Court. [Paras 8, 12] [148-G-H; 152-C-E, F-G]
2.1. Section 21 (4) of the National Investigation
Agency Act, 2008 provides that an appeal lies to the High
Court against an order of the Special Court granting or
D refusing bail. However sub-Section (3) which is a prior
sub-section, specifically states that '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. Thus, as per the mandate of
E Section 21 (3), when anybody is aggrieved by any
judgment, sentence or order including an interlocutory
order of the Special Court, no such appeal or revision
shall lie to any Court except as provided under sub-
section (1) and (2), meaning thereby only to the High
F Court. No doubt, an order granting or refusing bail is an
interlocutory order, but as provided under Section 21 (4),
the appeal against such an order lies to the High Court
only, and to no other court as laid down in Section 21(3).
Thus it is only the interlocutory orders granting or
G refusing bail which are made appealable, and no 11>ther
interlocutory orders, which is made clear in Section 21 (1 ),
which lays down that an appeal shall lie to the High Court
·from any judgment, sentence or order, not being an
interlocutory order of a Special Court. Thus other
H
STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 143
MD. HUSSAIN @ SALEEM
interlocutory orders are not appealable at all. This is A
because as provided under Section 19 of the Act, the trial
is to proceed on day to day basis. It is to be conducted
expeditiously. Therefore, no appeal is provided against
any of the interlocutory orders passed by the Special
Court. The only exception to this provision is that orders B
either granting or refusing bail are made appealable
under Section 21 (4). This is because those orders are
concerning the liberty of the accused, and therefore
although other interlocutory orders are not appealable,
an appeal is provided against the order granting or c
refusing the bail. Section 21 (4), thus carves out an
exception to the exclusion of interlocutory orders, which
are not appealable under Section 21 (1 ). The order
granting or refusing the bail is therefore very much an
order against which an appeal is permitted under Section 0
21(1) of the Act. [Para 13] (152-G-H; 153-A-G]
2.2. Section 21 (2) provides that every such appeal
under sub-Section (1) shall be heard by a bench of two
Judges of the High Court. This is because of the
importance that is given by the Parliament to the E
prosecution concerning the Scheduled Offences. They
are serious offences affecting the sovereignty and
security of the State amongst other offences, for the
investigation of which this Special Act has been passed.
If the Parliament in its wisdom has desired that such F
appeals shall be heard only by a bench of two Judges
of the High Court, this Court cannot detract from the
intention of the Parliament. There is no merit in the
submission canvassed on behalf of the appellant that
appeals against the orders granting or refusing bail need G
not be heard by a bench of two Judges. [Para 14] (153-
G-H; 154-A-B, D]
2.3. It is a well settled canon of interpretation that
when it comes to construction of a section, it is to be read
H
144 SUPREME COURT REPORTS [2013] 11 S.C.R.
A in its entirety, and its sub-sections are to be read in
relation to each other, and not disjunctively. Besides, the
text of a section has to be read in the context of the
statute. A few sub-sections of a section cannot be
separated from other sub-sections, and read to convey
B something altogether different from the theme underlying
the entire section. That is how a section is required to be
read purposively and meaningfully. [Para 15) [154-E-F]
Usmanbhai Dawoodbhai Memon and Ors. v. State of
C Gujarat AIR 1988 SC 922: 1988 (3) SCR 225; State of Punjab
v. Kewal Singh and Anr. 1990 (Supp) SCC 147; State of
Gujarat v. Salimbhai 2003 (8) SCC 50: 2003 (3 ) Suppl. SCR
414 - relied on.
Conclusion
D
3.1. An appeal from an order of the Special Court
under NIA Act, refusing or granting bail shall lie only to a
bench of two Judges of the High Court. [Para 20] [158-B]
3.2. The application for bail filed by the applicant in
E the present case is not maintainable before the High
Court. Inasmuch as the applicant is being prosecuted for
the offences under the MCOC Act, 1999, as well as The
Unlawful Activities (Prevention) Act, 1967, such offences
are triable only by Special Court, and therefore application
F for bail in such matters will have to be made before the
Special Court under the NIA Act, 2008, and shall not lie
before the High Court either under Section 439 or under
Section 482 of the Code. [Para 20] [158-C-E]
G 3.3; Where the NIA Act applies, the original application
for bail shall lie only before the Special Court, and appeal
against the orders therein shall lie only to a bench of two
Judges of the High Court. [Para 20] [158-E-F]
H
STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 145
MD. HUSSAIN @ SALEEM
Case Law Reference: A
1988 (3) SCR 225 relied on Para 6
1990 (Supp) sec 147 relied on Para 17
2003 (3) Suppl. SCR 414 relied on Para 18
B
CRIMINAL APPELLATE JURISDICTION : CRLMP No.
17570 of 2013 IN SLP (Crl) No. 7375 of 2012.
From the Judgment and Order dated 07.09.2012 of the
High Court of A.P. at Hyderabad in CRLP No. 6562 of 2012.
WITH
c
CRLMP No. 17571 of 2013 IN S.L.P. (Cir) No. 9788 of
2012.
Siddharth Luthra, ASG, Supriya Juneja, Meenakshi Grover,
Padma Laxmi Nigam, B. Krishna Prasad for the Appellant. D
Ram Jethmalani, Mahesh Jethmalani, Parresh Khanna,
Deep Shikha Bharati, Anand, Pranav Dinesh, Karan Kalia, P.R.
Mala, Nachiketa Joshi, Anil Soni, Rajeshwari Reddy (for Mohan
Pandey), Anis Kumar Gupta for the Respondent.
E
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. These Criminal Misc. Petitions have
been filed by the applicant for impleadment, and clarification
of the common order passed by this Court on 2.8.2013 in (i)
SLP (Crl.) No.7375/2012 State of A.P. through l.G. National F
Investigating Agency Vs. Md. Hussain @Saleem, and (ii) SLP
(Crl.) Nb.9788/2012 National Investigation Agency Vs. Ravi
Dhiren Ghosh. SLP (Crl.) No. 7375/2012 arose from the
judgment and order dated 7.9.2012 in CRLP No.6562/2012
passed by the Andhra Pradesh High Court. SLP (Crl.) No.9788/
2012 arose out of the order passed by the Bombay High Court G
on Criminal Bail Application No.1063/2012. The relevant part
of this order dated 2.8.2013 passed by this Court reads as
follows:-
"The only issue raised in these petitions is that in H
146 SUPREME COURT REPORTS [2013] 11 S.C.R.
A view of the provisions of Section 21 of the National
Investigation Agency Act, 2008, the matters in the High
Court ought to have been heard by a Division Bench, and
not by a Single Judge. The submission made by the
learned Additional Solicitor General is based on the
B provision of sub-section (2) of Section 21, which is a
statutory requirement. That being so, the order passed
by the High Courts deserve to be set aside, and the
proceedings, namely, Cr/. P.No.656212012 in the High
Court of Andhra Pradesh and Criminal Bail Application
No.106312012 in the Bombay High Court, will have to be
c restored to the Division Bench of the respective High
Courts. Ordered accordingly."
2. The applicant herein is accused No.1 in Special
(MCOC) CC No.1/09 pending before the learned NIA and
MCOC Court Mumbai. The said case arises out of a bomb
D blast in Malegaon that occurred on 29.9.2008. A charge-sheet
has been filed on 20.1.2009 against the applicant and others,
including 3 absconding accused, under Sections 302/307/326/
324/427/153-N120-B of l.P.C., read with Sections 3,4,5 and
6 of Explosive Substance Act, 1908, Sections 3,5 and 25 of
E Indian Arms Act, 15, 16, 17, 18, 20 and 23 of Unlawful Activities
(Prevention) Act, 1967, and Sections 3(1) (i), 3(1) (ii), 3(2), 3(4),
and 3(5) of Maharashtra Control of Organised Crimes Act, 1999
(MCOC Act for short), before the Court of Special Judge
(MCOCA) Greater Mumbai, Maharashtra. The National
F Investigation Agency has taken over the investigation of this
case, by virtue of an order of the Central Government dated
1.4.2011 passed in exercise of the powers conferred upon it
by Section 6(5) of The National Investigation Agency Act, 2008
(NIA Act for short).
G 3. The applicant is in custody and has preferred an
application for bail on 23.10.2012, before a Single Judge of
the Bombay High Court, bearing Criminal Bail Application
No.1679 of 2012, under the provisions of Section 21(4) of the
MCOC Act r/w Section 439 of the Code of Criminal Procedure,
H 1973 (Code for short).
STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 147
MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.]
4. It so transpired that during the pendency of this bail A
application, this Court passed the above referred common
order dated 2.8.2013 in SLP (Crl.) No.7375/2012 and SLP
(Crl.) No.9788/2012. The learned Special Public Prosecutor
appearing in the matter brought this order to the notice of the
learned Single Judge hearing the said Criminal Bail B
Application, and submitted that in view of the said order dated
2.8.2013 passed by this Court, the said Criminal Bail
Application is required to be placed before a Division Bench
of the High Court. The learned counsel appearing for the
applicant submitted to the High Court that the aforesaid order c
of this Court has no application to the facts of the case of the
applicant. The counsel for the applicant however further
submitted that he shall seek necessary clarification with respect
to the order passed by this Court. The learned Judge has,
therefore, adjourned the hearing of the Criminal Bail
0
Application. It is in these circumstances that the present
Criminal Misc. Petitions have been filed seeking impleadment
and also the following two prayers:-
(a) allow this application by clarifying/declaring that
provisions of Section 21(2) of National Investigation Agency E
Act, 2008, applies only to those petitions/applications filed
under Section 21(1) of the National Investigation Agency Act,
2008, and order of this Hon'ble Court dated 2.8.2013 passed
in SLP (Crl.) No.7375 of 2012 & SLP (Crl.) No.9788 of 2012
does not apply to an appeal from an order of the Special Court F
refusing bail.
(b) Further declare/clarify that where the Maharashtra
Control of Organised Crimes Act, 1999 applies, all bail matters
shall be governed by Section 21 of the Maharashtra Control G
Organised Crimes Act, 1999, and not by Section 21 of the
National Investigation Agency Act, 2008.
5. The principal submission on behalf of the petitioner is
canvassed in ground (B) of this Criminal Misc. Petition which
reads as follows:- H
148 SUPREME COURT REPORTS [2013] 11 S.C.R.
A "B. For that Section 21 (2) of the NIA Act, 2008,
prescribes that every appeal under sub-section (1) of 21
shall be heard by a Bench of 2 Judges of the Hon'ble
High Court. Applications for Bail governed by the NIA Act,
2008 are not preferred under 21 (1) of the NIA but under
B Section 21(4) of the NIA Act, 2008 under which, appeals
to the High Court lie only against an order of the special
court granting or refusing bail. Appeals under 21(4) are
not required to be heard by a Bench of 2 Judges of the
High Court. In as much as this Court's order dated
c 2.8.2013 purports to hold, that appeals from orders of the
special court, granting or refusing bail are to be heard by
2 Judges of the Mumbai High Court, the said order is
manifestly contrary to the provisions of Section 21 of the
NIA Act, 2008."
D 6. In support of this application it is further contended that
the law is very well settled, and an order of refusal of bail is an
interlocutory order as decided in more than one judgments of
this Hon'ble Court. Reliance is placed on the judgment of this
Court in Usmanbhai Dawoodbhai Memon and Ors. v. State
E of Gujarat (per A.P. Sen, J) reported in AIR 1988 SC 922. It is
submitted that this Hon'ble Court in its order dated 2.8.2013
has not noticed that an order granting or rejecting bail is always
considered to be an interlocutory one.
F 7. Mr. Ram Jethmalani, learned senior counsel has
appeared in support of these Criminal Misc. Petitions, seeking
impleadment and clarification as aforesaid. Mr. Sidhharth
Luthra, learned Additional Solicitor General has appeared for
the respondent National Investigation Agency.
G 8. Before we turn to the interpretation of Section 21, we
must record that it is not disputed that amongst other provisions
the applicant is also being prosecuted for the offences under
the provisions of The Unlawful Activities (Prevention) Act, 1967.
This Act is included at SI. No.2 in the Schedule to the NIA Act,
H
STATE OF A P. THR. 1.G. NATIONAL INV. AGENCY v. 149
MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.]
2008. The term "Scheduled Offence" is defined under Section A
2(g) of the Act to mean an offence specified in the Schedule.
Section 13 of the Act lays down the jurisdiction of Special
Courts. Section 13(1) provides that notwithstanding anything
contained in the Code, every Scheduled Offence investigated
by the Agency shall be tried only by the Special Court, within B
whose local jurisdiction the said offence was committed.
Section 14 gives the powers to the Special Courts with respect
to other offences. Section 13(1) and 14 read as follows:-
"13. Jurisdiction of Special Courts -
c
(1) Notwithstanding anything contained in the Code,
every Scheduled Offence investigated by the Agency
shall be tried only by the Special Court within whose local
jurisdiction it was committed.
D
14. Powers of Special Courts with respect to other
offences-
(1) When trying any offence, a Special Court may a/so
try any other offence with which the accused may, under
the Code be charged, at the same trial if the offence is E
connected with such other offence.
(2) If, in the course of any trial under this Act of any
offence, it is found that the accused person has
committed any other offence under this Act or under any F
other law, the Special Court may convict such person of
such other offence and pass any sentence or award
punishment authorised by this Act or, as the case may
be, under such other law. "
Section 19 of the Act provides for a speedy trial of such G
matters on day to day basis, and also that these trials shall
have the precedence over the trial of other cases against the
accused.
H
1~50 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 9. In the present matter we are concerned with the
interpretation of Section 21 of the NIA Act, 2008. It will therefore
be necessary to reproduce the said section in its entirety. The
said section reads as follows:-
"21. Appeals. - (1) Notwithstanding anything contained
B
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
c a bench of two Judges of the High Court and shall, as
far as possible, be disposed of within a period of three
months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie
D 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
E or refusing bail.
(5) Every appeal under this section shall be preferred
within a period of thirty days from the date of the
judgment, sentence or order appealed from:
F
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 h.ad sufficient cause for not
preferring the appeal within the period of thirty days:
G Provided further that no appeal shall be entertained after
the expiry of period of ninety days. n
10. The principal submission of Mr. Ram Jethmalani,
learned senior counsel appearing for the applicant has been
H based on the premise that the order granting or refusing a bail
STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 151
MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.]
is an interlocutory order, and for that purpose he relied upon A
the judgment of this Court in Usmanbhai (supra), wherein this
Court has observed in paragraph 24 as follows:-
"24. . ..... It cannot be doubted that the grant or
refusal of a bail application is essentially an interlocutory 8
order. There is no finality to such an order for an
application for bail can always be renewed from time to
time ..... n
11. Based on this premise Mr. Jethmalani has advanced
two-fold submissions:- C
(i) Firstly that the order on a bail application is excluded
from the coverage of Section 21(1) of the Act, which provides
for the appeals to the High Court from any judgment, sentence
or order of a special court both on facts and on law. It is only 0
such appeals which are covered under Section 21 (1) that are
to be heard by a bench of two judges of the High Court as laid
down under Section 21 (2) of the Act. The appeal against
refusal of bail lies to the High Court under
Section 21(4) and not under Section 21(1), and therefore, it E
need not be heard by a bench of two Judges.
(ii) In any case, it was submitted that the bail application
which the applicant had filed before the Bombay High Court
was one under Section 21 (4) of the MCOC Act read with
Section 439 of the Code of Criminal Procedure, and was fully F
maintainable before a single Judge. He has drawn our attention
to the provision of Section 21 of the MCOC Act, 1999 for that
purpose.
(iii) For the sake of record, we may refer to Section 21(4) G
of the MCOC Act which reads as follow:-
"4. Notwithstanding anything contained in the Code,
no person accused of an offence punishable under this
Act shall, if in custody, be released on bail or on his own
bond, unless- H
152 SUPREME COURT REPORTS (2013) 11 S.C.R.
A (a) the Public Prosecutor has been given an
opportunity to oppose the application of such release;
and
(b) where the Public Prosecutor opposes the
B 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."
12. Now, when we deal with these submissions we must
C note that when it comes to the Scheduled Offences, the Special
Courts are given exclusive jurisdiction to try them under Section
13(1) of the Act. When it is a composite offence covered under
any Act specified in the Schedule and some other act, the trial
of such offence is also to be conducted before the Special
D Court in view of Section 14(1) of the Act. Section 16(2) of the
Act gives the power to the Special Court to conduct a summary
trial, where the offence is punishable with imprisonment for a
term not exceeding three years or with fine or both. Section
16(3) of the Act declares as follows:-
E
"(3) Subject to the other provisions of this Act, a
Special Court shall, for the purpose of trial of any offence,
have all the powers of a Court of Session and shall try
such offences as if it were a Court of Session so far as
may be in accordance with the procedure prescribed in
F the Code for the trial before a Court of Session."
In view of this provision, the application for bail by the
a~cused lies before a Special Court.
G 13. The above referred Section 21 (4) provides that an
appeal lies to the High Court against an order of the Special
Court granting or refusing bail. However sub-Section (3) which
is a prior sub-section, specifically states that 'except as
aforesaid', no appeal or revision shall lie to any court from any
H judgment, sentence or order including an interlocutory order of
STATE OF A. P. THR. 1.G. NATIONAL INV. AGENCY v. 153
MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.]
a Special Court. Therefore, the phrase 'except as aforesaid' A
takes us to sub-Sections (1) and (2). Thus when anybody is
aggrieved by any judgment, sentence or order including an
interlocutory order of the Special Court, no such appeal or
revision shall lie to any Court except as provided under sub-
section (1) and (2), meaning thereby only to the High Court. B
This is the mandate of Section 21(3). There is no difficulty in
accepting the submission' on behalf of the appellant that an
order granting or refusing bail is .an interlocutory order. The
point however to be noted is that as provided under Section
21(4), the appeal against such an order lies to the High Court c
only, and to no other court as laid down in Section 21 (3). Thus
it is only the interlocutory orders granting or refusing bail which
are made appealable, and no other interlocutory orders, which
is made clear in Section 21(1), which lays down that an appeal
shall lie to the High Court from any judgment, sentence or order,
0
not being an interlocutory order of a Special Court. Thus other
interlocutory orders are not appealable at all. This is because
as provided under Section 19 of the Act, the trial is to proceed
on day to day basis. It is to be conducted expeditiously.
Therefore, no appeal is provided against any of the interlocutory E
orders passed by the Special Court. The only exception to this
· provision is that orders either granting or refusing bail are
made appealable under Section 21(4). This is because those
orders are concerning the liberty of the accused, and therefore
". ~lthough other interlocutory orders are not appealable, an
appeal is provided against the order granting or refusing the F
bail. Section 21(4), thus carves out an exception to the
exclusion of interlocutory orders, which are not appealable
under Section 21(1). The order granting or refusing the bail is
. therefore very much an order against which an appeal is
permitted under Section 21(1) of the Act. G
14. Section 21 (2) provides that every such appeal under
sub-Section (1) shall be heard by a bench· of two Judges of the
High Court. This is because of the importance that is given by
the Parliament to the prosecution concerning the Scheduled H
154 SUPREME COURT REPORTS [2013] 11' S.C.R.
A Offences. They are serious offences affecting the sovereignty
and security of the State amongst other offences, for the
investigation of which this Special Act has been passed. If the
Parliament in its wisdom has desired that such appeals shall
· be heard only by a bench of two Judges of the High Court, this
B Court cannot detract from the intention of the Parliament.
Therefore, the interpretation placed by Mr. Ram Jethmalani on
Section 21 (1) that all interlocutory orders are excluded from
Section 21(1) cannot be accepted. If such an interpretation is
accepted it will mean that there will be no appeal against an
c order granting or refusing bail. On the other hand, sub-Section
(4) has made that specific provision, though sub-Section (1)
otherwise excludes appeals from interlocutory orders. These
appeals under sub-Section (1) are to be heard by a bench of
two Judges as provided under sub-Section (2). This being the
position, there is no merit in the submission canvassed on
0
behalf of the appellant that appeals against the orders granting
or refusing bail need not be heard by a bench of two Judges.
15. We cannot ignore that it is a well settled canon of
interpretation that when it comes to construction of a section,
E it is to be read in its entirety, and its sub-sections are to be
read in relation to each other, and not disjunctively. Besides,
the text of a section has to be read in the context of the statute.
A few sub-sections of a section cannot be separated from other
sub-sections, and read to convey something altogether different
F from the theme underlying the entire section. That is how a
section is required to be read purposively and meaningfully.
16. (i) As noted earlier, the submission of the applicant is
two-fold. Firstly, as stated above the appeal against an order
G granting or refusing bail under Section 21(4) of the Act need
not be before a bench of two Judges, which is untenable as
noted above.
(ii) The other submission is that the application for bail
which is made by the applicant before the High Court is an
H original application under Section 21 (4) of the MCOC Act read
STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 155
MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.]
with Section 439 of the Code, and is therefore, maintainable A
before a Single Judge of the High Court. As far as this
submission is concerned, it has been repelled in the judgment
of Usmanbhai (supra) relied upon by the counsel of the
applicant himself. That was a matter under Terrorist and
Disruptive Activities (Prevention) Act (28of1987) shortly known 8
as TADA. This Act also had a similar provision in Section 19(1)
thereof which read as follows:-
"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 C
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 D
including an interlocutory order of a Designated Court."
It is also material to note that Section 20(8) of TADA .had
provisions identical to Section 21(4) of MCOC Act. The Gujarat
High Court while interpreting the provisions of TADA had held
that it did not have the jurisdiction to entertain the application E
for bail either under Section 439 or under Section 482 of the
Code. That view was confirmed by this Court by specifically
stating at the end of para 22 of its judgment in Usmanbhai's
case (supra) in following words:-
F
"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."
17. The view taken by this Court in Usmanbhai was G
reiterated in State of Punjab v. Kewal Singh and Anr. reported
in 1990 (Supp) sec 147. That was also a matter under TADA,
and the application for bail by the respondents was rejected
by the designated court. Thereupon they had moved the High
H
156 SUPREME COURT REPORTS (2013] 11 S.C.R.
A Court under Section 439 of Cr.P.C. for grant of bail, and a
learned single Judge of Punjab & Haryana High Court had
enlarged them on bail on the ground that the co-accused had
been granted bail. The order in this matter is also passed by a
bench presided over by A.P. Sen, J. This Court set aside the
8 order passed by the High Court and clearly observed in
paragraph 2 as follows :-
·• are of the view that the High Court had no
"2 .... We
jurisdiction to entertain an application for bail under
Section 439 of the Code. See Usmanbhai Dawoodbhai
C Memon V. State of Gujarat .... "
Thereafter, the Court observed in paragraph 3:-
"3. We however wish to make it clear that the
respondents may move the Designated Court for grant
D
of bail afresh. The Designated Court shall deal with such
application for bail, if filed, in the light of the principles
laid down by this Court in Usmanbhai Dawoodbhai case."
18. It is material to note that the view taken in Usmanbhai
E (supra) was further confirmed by this Court in State of Gujarat
v. Salimbhai reported in 2003 (8) sec 50, to which our
attention was drawn by Mr. Luthra, the learned Additional ·
Solicitor General appearing for the NIA. This time the Court was
concerned with similar provisions of Prevention of Terrorism
F Act, 2002 (POTA for short). Section 34 of POTA is entirely
identical to Section 21 of the NIA Act except that it did not
contain the second proviso to sub-Section 5 of Section 21 of
NIA Act (which has been quoted above), and which proviso has
no relevance in the present case. It was specifically contended
G in that matter by the learned counsel for the respondent that the
power of the High Court to grant bail under Section 439 of
Cr.P.C. had not been taken away by POTA. In para 39 of the
judgment this Court confirmed the view taken in Usmanbhai
in the following words:-
H
STATE OF A. P. THR. 1.G. NATIONAL INV. AGENCY v. 157
MD. HUSSAIN @ SALEEM (H.L. GOKHALE, J.]
"13. Section 20 of TADA contained an identical A
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
conseq~ently remained intact was repelled in B
Usmanb/;lai Dawoodbhai Menon v. State of Gujarat.
Having regard to the scheme of TADA, it was held that
there was complete exclusion of the jurisdiction bf the
High Court to entertain a bail application under Section
439 of'Jhe Code. This view was reiterated in State of c
Punjab 'v. Kewal Singh (1990 Supp SCC 147)".
19. In this
I
judgment in State of Gujarat v. Salimbhai
(supra), the Court specifically rejected the plea based on
Sectio.n 439 of the Code by holding that the High Court under
the special statute could not be said to have both appellate and D
original jurisdiction in respect of the same matter. The Court
observed in par~ 14 thereof as follows:
' '
"14. That apart, if the argument of the learned
counsel for the respondents is accepted, it would mean E
that a person whose bail under POTA has been rejected
by the Special Court will have two remedies and he can
avail any one bf 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 F
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 G
of the same matter will lead to an incongruous situation.
The contention is therefore fallacious."
Thus, the law on the issue_ in hand is very well settled, and there
are three previous judgments of this Court already holding the
field, and yet the same challenge is being raised once again, H
158 SUPREME COURT REPORTS [2013] 11 S.C.R.
A though now in respect to the NIA Act.
20. The order passed by this Court on 2.8.2013 in SLP
(Crl.) No.7375/2012 and SLP (Crl.) No.9788/2012 is therefore
clarified as follows:-
B (a) Firstly, an appeal from an order of the Special Court
under NIA Act, refusing or granting bail shall lie only to a bench
of two Judges of the High Court.
(b) And, secondly as far as prayer (b) of the petition for
c <?larification is concerned, it is made clear that inasmuch as the.
applicant is being prosecuted for the offences under the MCOC
Act, 1999, as well as The Unlawful Activities (Prevention) Act,
1967, such offences are triable only by Special Court, and
therefore application for bail in such matters will have to be
0 made before the Special Court under the NIA Act, 2008, and
shall not lie before the High Court either under Section 439 or
under Section 482 of the Code. The application for bail filed
by the applicant in the present case is not maintainable before
the High Court.
E (c) Thus, where the NIA Act applies, the original application
for bail shall lie only before the Special Court, and appeal
against the orders therein shall lie only to a bench of two
Judges of the High Court.
F 22. The Criminal Misc. Petitions are therefore dismissed.
Registry to send a copy of this order.to the Andhra Pradesh
and Bombay High Courts forthwith.
B.B.B. Petitions dismissed.
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