STATE OF GUJARATversusSALIMBHAL ABDULGAFFAR SHAIKH AND ORS.

A                            STATE OF GUJARAT
                                        v.
             SALIMBHAl ABDULGAFFAR SHAIKH AND ORS.

                             SEPTEMBER 8, 2003

B             [S. RAJENDRA BABU AND G.P. MATHUR, JJ.]

       Prevention of Terrorism Act, 2002-Sections 3(2); 3(3); 4; 34 and
  49--0.ffences under the Act-Bail-Jurisdiction ofHigh Court-Applications
  under Section 439 Cr. PC before High Court-Single Judge of High Court
C allowing bail-Legality of-Held, order of High Court is without
  jurisdiction-Under the Act, there is complete exclusion ofjurisdiction of
  High Court to entertain a bail application under Section 439 Cr.P.C.-The
  Act provides for an appeal before a Division Bench of High Court against
  an order ofrefasal or grant ofbail passed by the Special Court-Existence
D of an order of the Special Court is sine qua non for approaching the High
  Court-Code of Criminal Procedure, 1973-Section 439.

         Appeal-Scope of-Discussed

         Interpretation of Statutes-Held, not to be done in abstract but
E construed keeping in mind the whole enactment and the dominant purpose
    that it may express.

         Constitution ofIndia, 1950-Articles l 34A; l 34(I)(c); 136---0rant of
    Certificate by High Court-Discretion not properly exercised-Held, the
F   matter may either be remitted or Supreme Court may exercise that
    discretion itselfor treat the appeal as one under Article 136-Practice and
    Procedure.

          A train was stopped near a railway station and a coach was set
    on fire resulting in death of59 persons and serious injuries to 48 others.
G   A case was registered under the specific provisions of Indian Penal
    Code, Indian Railways Act, Prevention of Damage to Public Property
    Act and Bombay Police Act and a charge-sheet was filed. The accused-
    respondents moved bail applications before the Additional Sessions
    Judge which were rejected. Thereafter, bail applications were filed
H   before High Court under Section 439 Cr.P.C. In the meanwhile, on the
                                       414
          STATE v. SALIMBHAI ABDULGAFFAR SHAIKH                         415
basis of the facts revealed as a result offurther investigation, prosecution   A
came to the conclusion that offences under the Prevention of Terrorism
Act, 2002 (POT A) has also been committed. Accordingly appropriate
steps were taken for including the aforesaid offences in the charge-
sheet. Thus, it was averred that Single Judge of the High Court who
was seized of the matter had no jurisdiction to hear the bail applications     B
in view of the specific provisions of POTA. The High Court, however,
allowed the bail applications; and also granted certificate under Article
134A read with Article 134(1)(c) of the Constitution. Hence, the
present appeals.

     On behalf of the appellant, it was contended that the accused             C
having not applied for bail under POTA before the Special Judge, it
was not open to the High Court to directly entertain their bail
applications; that only a Bench of two judges of the High Court could
grant bail in an offence under POTA, therefore, bail granted by a
Single Judge of High Court was not only illegal but also without               D
jurisdiction.

      On behalf of the respondents, a preliminary objection was raised
that an appeal would lie to the Supreme Court from any judgment,
final order or sentence in a criminal proceeding of a High Court; that         E
in a criminal proceeding an order on an application for bail is not a
final order; that therefore the appeal should be treated as incompetent.
On merits it was contended that the power of the High Court to grant
bail under Section 439 Cr.P.C. has not been taken away by POT A and
consequently the Single Judge had the jurisdiction to grant bail to the
respondents in exercise of the power conferred by the aforesaid                F
provision.

     Allowing the appeals, the Court

     HELD : I.I The respondents did not choose to apply for bail
before the Special Court for offences under POTA and consequently              G
there was no order of refusal of bail for offences under the said Act.
The order of Single Judge of the High Court, exercising powers under
Section 439 read with Section 482 Cr.P.C. and granting the bail is
clearly without jurisdiction as under the sche.ne of the Act the accused
can only file an appeal against an order of refusal of bail passed by          H
    416                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A the Special Court before a Division Bench of the High Court and,
    therefore, the order under challenge cannot be sustained and has to
    be set aside. (424-E, F)

          1.2 The argument that the power of the High Court to grant bail
B under Section 439 Cr.P.C. has not been taken away by POT A is
    fallacious. 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. [424-C, DJ

        1.3 Sub-section (4) of Section 34 of POTA provides for an appeal
C to the High Court against an order of the Special Court granting or
  refusing bail. In view of the express language used in sub-section (1)
  of Section 34 of POT A the appeal would lie both on facts and on law.
  The considerations which are generally relevant in the matter of
  cancellation of bail under sub-section (2) of Section 439 of the Code
D 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 Special Court refusing bail,
E the accused will have no right to file an appeal before 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.
                                                               (422-E-H)

         Usmanbhai Dawoodbhai Menon v. State ofGujarat, (1988) 2 SCC 271
F   and State ofPunjab v. Kewal Singh, [1990) Supp. SCC 147, referred to.

         1.4 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. Only in exceptional
G   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. (421-F-H)

          State v. Capt. Jagjit Singh, AIR (1962) SC 253 and Gurcharan Singh
H v. State (Delhi Admn.), AIR (1978) SC 179, referred to.
          STATE v. SALIMBHAI ABDULGAFFAR SHAIKH                         417

     1.5 The procedure in Cr.P.C. gets modified by reason of a special         A
provision in a special enactment. Under the scheme of POTA, there is
a clear departure in the matter of grant of bail from that of Code of
Criminal Procedure. There is no provision for appeal under the Code
of Criminal Procedure against an order refusing or granting bail.
     [423-G, 421-B, CJ                                                         B
     A.R. Antulay v. Ramdas Srinivas Nayak & Anr., [1984) 2 SCC 500,
referred to.

     2. The High Court has also invoked powers under Section 482
Cr.P.C. while granting bail to the respondents. Section 482 Cr.P.C.            C
saves the inherent powers of the High Court. 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. (424-G, H, 425-A]

      Madhu Limaye v. State ofMaharashtra, AIR (1978) SC 47, referred          D
to.

     3. 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(l)(C), the matter may either be remitted
or this Court may exercise that discretion itself or treat the appeal as       E
one under Article 136. (418-E]

    Nar Singh v. State of UP., (1955] l SCR 238 and Saladin v. State
of UP., AIR (1956) SC 181, relied upon.                            " •
                                                                       _.,/

     CRJMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.                    F
888-891 of 2003.

    From the Judgment and Order dated 4.7.2003 of the Gujarat High
Court in Crl. Misc. Appln. Nos. 606, 857, 864 and 1031/2003.

    H.N. Salve and Sushi! Kumar, Kamal Trivedi A.A.G., Gujarat and             G
Ms. Hemantika Wahi for the Appellant.

    A. Sharan, Mushtaq Ahmad, Amit Kumar, Mrs. P. Sinha, S.A. Khan,
Amit Anand Tiwari, Iqbal Hussain and Ms. Madhu Saran for the
Respondents.                                                                   H
    418                    SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A         The Judgment of the Court was delivered by

         G.P. MATHUR, J. : I. 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.

B       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(I)(c) and 134A of
  the Constitution; that, an order made in a proceeding arising out of an
C 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;
D 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
E   Court has not properly exercised the discretion under Article 134(I)(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] l SCR238,andBaladinv.StateofU.P., AIR(l956)SC 181.
    Therefore, we do not propose to examine this aspect of the matter any
F   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
G the Sabannati 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. 1-09 of2002 under Sections 143, 147, 148, 149, 337,
    338, 435, 120-B, 34, 153(A), 302, 307 !PC, Sections 141, 151, 152 Indian
H   Railways Act, Sections 3 and 4 of Prevention of Damage to Public Property
      STATE v. SALIMBHAI ABDULGAFFAR SHAIKH [MATHUR, J.] 419

Act and Section 135(1) of the Bombay Police Act. After investigation,            A
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,
Panchmahajs atGodhra on different dates between 18th and 30th January,           B
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       C
was filed on behalf of the State on 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)               D
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           E
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 POT A, the learned Single Judge, who was seisin of the
matter had no jurisdiction to hear the bail application. The High Court, by      F
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.l-09 of2002 registered with Godhra Railway Police Station. Certificate
under Article 134A read with Article 134(1 )(c) of the Constitution oflndia
was granted by the High Court on the prayer made by the State.
                                                                                 G
      5. Shri Harish Salve and Shri Sushi! 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        H
    420                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 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
B   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 :
c
                  "34. (I) 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.
D
                 (2) Every appeal under sub-section (I) 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
E            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.
F
                  (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
G            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
H lie from any judgment, sentence or order not being in interlocutory order
      STATE v. SALJMBHAI ABDULGAFFAR SHAIKH [MATHUR, J.) 421

of a Special Court to the High Court both on facts and law and in view             A
of Sub-section (2), the appeal has to be heard by a bench of two judges.
Nonnally 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          B
from that of Code of Criminal Procedure. The provisions 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          C
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 nonnally weigh with the court in                 D
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 - the
nature and seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused; a reasonable possibility          E
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.             F
What is nonnally 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          G
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.     H
    422                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A         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
B   connotation and meaning which is as under :-

           "A proceeding undertaken to have a decision r1considered by
    bringing it to a higher authority, specially the submission of a lower Court's
    decision to higher Court for review and possible reversal.

C          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
D 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
E 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 (I) 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
F   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
G   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 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,
H   therefore, sine qua non for approaching the High Court.
      STATE v. SALIMBHAI ABDULGAFFAR SHAIKH [MATHUR, J.] 423

       I 0. Shri Amarendera Sharan, learned senior counsel for the respondents   A
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-         B
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
th~ Code inapplicable in relation to offences under POTA, it would have
made a provision similar to Sub-section (5) of Section 49 which expressly        C
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     D
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                  E
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    F
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         G
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           H
    424                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 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
B view was reiterated in State of Punjab V. Kewal Singh. [1990] Supp. sec
  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
C 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
D 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
E 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
F appeal against an order ofrefusal of bail passed by the Special Court before
  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.
G
         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

H
    inherent powers to be exercised ex debito justitiae to do the real and
    substantial justice for the administration of which alone Courts exist. The    -
       STATE v. SALIMBHAI ABDULGAFFAR SHAIKH [MATHUR, J.) 425

power has to be exercised to prevent abuse of the process of the Court or          A
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
(I978) 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                B
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          C
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.
                                                                                   D
M.P.                                                         Appeals allowed.