Jayanta Kumar Ghosh V NIA

MANU/GH/0540/2010

Equivalent Citation: (2010)6GLR727, 2010(4)GLT1

IN THE HIGH COURT OF GAUHATI

Crl. Appeal Nos. 12, 13, 14, 24 and 35 of 2010

Decided On: 28.05.2010

Appellants: Jayanta Kumar Ghosh and Anr. Vs.

Respondent: State of Assam and Ors.

Hon'ble Judges/Coram: Iqbal Ahmed Ansari and Arun Chandra Upadhyay, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: P.K. Goswami, A. Choudhury, A. Ganguly, J.M. Choudhury,A.K. Sharma, J.A. Abedin, M. More, M. Mukherjee, N.N. B. Choudhury, N. Sarkar, A. Talukdar,K. Kalita, S. Ali Ahmed, J.P. Das, G.N. Sahewalla, P. Bora, Aslam, T. Hussain and J. Bora, Advs.

For Respondents/Defendant: D.K. Das, Adv.

Subject: Criminal

Acts/Rules/Orders: Unlawful Activities (Prevention) Act, 1967 - Section 2, Unlawful Activities (Prevention) Act, 1967 - Section 3, Unlawful Activities (Prevention) Act, 1967 - Section 14(3), Unlawful Activities (Prevention) Act, 1967 - Section 15, Unlawful Activities (Prevention) Act, 1967 - Section 16, Unlawful Activities (Prevention) Act, 1967 - Section 17, Unlawful Activities (Prevention) Act, 1967 - Section 18, Unlawful Activities (Prevention) Act, 1967 - Section 19, Unlawful Activities (Prevention) Act, 1967 - Section 20, Unlawful Activities (Prevention) Act, 1967 - Section 43D(1), Unlawful Activities (Prevention) Act, 1967 - Section 43D(2), Unlawful Activities (Prevention) Act, 1967 - Section 43D(5), Unlawful Activities (Prevention) Act, 1967 - Section 43D(6); Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43A, Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43B, Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43C, Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43D, Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43E, Unlawful Activities (Prevention) (Amendment) Act, 2008 - Section 43F; National Investigation Agency Act, 2008 - Section 6(5), National Investigation Agency Act, 2008 - Section 8, National Investigation Agency Act, 2008 - Section 11, National Investigation Agency Act, 2008 - Section 11(1), National Investigation Agency Act, 2008 - Section 16, National Investigation Agency Act, 2008 - Section 16(3), National Investigation Agency Act, 2008 - Section 21, National Investigation Agency Act, 2008 - Section 21(4), National Investigation Agency Act, 2008 -Section 22, National Investigation Agency Act, 2008 - Section 24(1); Arms Act - Section 25(1A), Arms Act - Section 25(1B); Terrorists and Disruptive Activities (Prevention) Act, 1987 -Section 3, Terrorists and Disruptive Activities (Prevention) Act, 1987 - Section 14(3), Terrorists and Disruptive Activities (Prevention) Act, 1987 - Section 20(8), Terrorists and Disruptive Activities (Prevention) Act, 1987 - Section 20(9); Prevention of Terrorist Activities Act, 2002 -Section 34(4); Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37(1), Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37(2); Assam Finance Rules ;Indian Penal Code (IPC) - Section 21, Indian Penal Code (IPC) - Section 120B, Indian Penal Code (IPC) - Section 121, Indian Penal Code (IPC) - Section 121A, Indian Penal Code (IPC) - Section 302, Indian Penal Code (IPC) - Section 304A, Indian Penal Code (IPC) - Section 409; Code of Criminal Procedure (CrPC) - Section 164, Code of Criminal Procedure (CrPC) - Section 167, Code of Criminal Procedure (CrPC) - Section 167(2), Code of Criminal Procedure (CrPC) - Section 167(2A), Code of Criminal

2015-06-04 (Page 1 of 59 ) www.manupatra.com The High Court Of Kerala

Procedure (CrPC) - Section 173, Code of Criminal Procedure (CrPC) - Section 193, Code of Criminal Procedure (CrPC) - Section 199(2), Code of Criminal Procedure (CrPC) - Section 209, Code of Criminal Procedure (CrPC) - Section 437, Code of Criminal Procedure (CrPC) - Section 437(1), Code of Criminal Procedure (CrPC) - Section 439, Code of Criminal Procedure (CrPC) -Section 439(1), Code of Criminal Procedure (CrPC) - Section 439(2); Code of Civil Procedure (CPC)

Cases Referred: Redaul Hussain Khan and Ors. v. State of Assam and Ors. MANU/SC/1877/2009 : (2009) 3 GLT 855 : (2010) 1 SCC 521; Sh. Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : (1980) 2 SCC 565; S.N. Thapa v. State of Maharashtra MANU/SC/0693/1994 : (1994) 4 SCC 38; Usmanbhai Dawoodbhai Memon v. State of Gujarat (1998) 2 SCC 271; State of Maharashtra v. Anand Chintaman Dighe MANU/SC/0113/1990 : (1990) 1 SCC 397; State v. Capt. Jagjit Singh MANU/SC/0139/1961 : (1962) 3 SCR 622 : AIR 1962 SC 252; State of UP (through CBI) v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21; Prahlad Singh Bhati v. NCT. Delhi MANU/SC/0193/2001 : (2001) 4 SCC 280 : 2001 SCC (Cri) 674; Gurcharan Singh v. State (Delhi Admn.) MANU/SC/0420/1978 : (1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179; Kalyan Chandra Sarkar v. Rajesh @ Pappu Yadav and Anr. MANU/SC/0214/2004 : (2004) 7 SCC 528 : 2004 SCC (Cri) 1977; Ram Govind Upadhvav v. Sudarshan Singh MANU/SC/0203/2002 : (2002) 3 SCC 598 : 2002 SCC (Cri) 688; Puran v. Rambilas MANU/SC/0326/2001 : (2001) 6 SCC 338 : 2001 SCC (Cri) 1124; Vaman Narain Ghiya v. State of Rajasthan MANU/SC/8394/2008 : (2009) 2 SCC 281; Niranjan Singh v. Prabhakar Rajaram Kharote; State of Gujarat v. Salimbhai Abdulgaffar Shaikh MANU/SC/0676/2003 : (2003) 8 SCC 50; State of Punjab v. Kewal Singh 1990 Supp SCC 147; Union of India v. Thamisharasi and Ors. MANU/SC/0714/1995 : (1995) 4 SCC 190; Martin Burn Ltd v. R.N. Banerjee MANU/SC/0081/1957 : 1958 SCR 514 : AIR 1958 SC 79; Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M. T. represented by the Binny Mills Labour Association MANU/SC/0331/1960 : AIR 1960 SC 1352; State of Gujarat v. Gadhvi Rambhai Nathabai MANU/SC/0775/1994 : (1994) 5 SCC 111; Union of India v. Shiv Shankar Kesari MANU/SC/7905/2007 : (2007) 7 SCC 798; Babu Singh and Ors. v. State of Uttar Pradesh AIR 1978 SC 179

Authorities Referred: Black's Law Dictionary; Concise Dictionary of Collins; Wharton s Law Lexicon; Webster s Third New International Dictionary; World Book Dictionary; Cambridge dictionary; Oxford English Dictionary

Citing Reference:

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Disposition: Appeal Dismissed

Case Note: Criminal - Grant of Bail - Sections 120B/121/121A Indian Penal Code, 1860 and Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 - Special Judge refused to grant bail to three Accused for offence of Punishment of criminal conspiracy, Waging and Conspiracy to commit offences punishable by Section 121 -Hence, this Appeal - Whether, Accused-Appellants deserved to be granted bail - Held, three Appellants were described as members of DHD(J) - DHD(J) in light of materials available on record was regarded as terrorist gang which was involved in terrorist acts - There were few transactions wherein three Appellants collected funds for Accused knowing well that he was DHD(J) activist and he has come to power as CEM -

Discussed

Mentioned


Those Appellants could not albeit tentively and unless could be shown otherwise to have prima facie committed offence under Section 17 of 1967 Act - Materials collected by investigating agency revealed that Accused-Respondent was involved as close associate of activists of DHD(J) and in collision with them misappropriated government funds and such misappropriated funds or part of that were being utilized for 'terrorist acts' - Further, materials on record showed that accusations made against Accused and Appellants were prima facie true - Thus, with help of manipulation and fabrication of records Government funds were dishonestly misappropriated by Appellants who had domain over funds - Three Appellants were part of whole conspiracy to dishonestly misappropriate Government funds and shall be treated to have abetted thereby offence of criminal breach of trust punishable by Section 409 I.P.C. - Three Appellants could not be heard to say that they were not part of offence of criminal breach of trust committed by public servants - Therefore, Appellants could not be allowed to go on bail - Appeal dismissed. Ratio Decidendi "Persons dishonestly misappropriating Government funds being utilized for 'terrorist acts' shall not be entitled for grant of bail."

JUDGMENT

I.A.Ansari, J.

1. Aggrieved by the order, dated 31.12.2009, passed by the learned Special Judge, NIA, Assam, in Misc. (NIA) Bail Application No. 05/2009, arising out of Special (NIA) Case No. 01/2009 under Sections 120B/121Section 14(3) of TADA. Both the provisions 121A IPC read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, refusing to grant bail to three accused persons, namely, Jayanta Kumar Ghosh, Debasish Bhattacharjee and Sandip Kumar Ghosh, each of the said accused persons has preferred appeal under Section 21(4) of the National Investigation Agency Act, 2008, the three appeals having given rise to Criminal Appeal Nos. 12/2010, 13/2010 and 14/2010 respectively.

2. Aggrieved by the orders, dated25.01.2010 and 08.01.2010, passed by thelearned Special Judge, NIA, Assam, inMisc.(NIA) Bail Application No. 08/2009and 09/2009 respectively, both having arisenout of Special (NIA) Case No. 01/2009 un-der Sections 120B/121/121A IPC read withSections 16, 17, 18 and 20 of the UnlawfulActivities (Prevention) Act, 1967, refusing togrant bail, the two accused persons, namely,Samir Ahmed and Arshingdao Waris, havepreferred appeals under Section 21(4)) ofthe National Investigation Agency Act, 2008,their appeals having given rise to CriminalAppeal No. 24/2010 and 35/2010.

3. As the prosecution's case against all the accused aforementioned are inter-woven and closely linked with each other, all these five appeals have been heard together and are being disposed of by this common judgment and order.

4. We have heard Mr. PK Goswami, learned Senior counsel, appearing on behalf of the accused Jayanta Kumar Ghosh (i.e., Appellant in Criminal Appeal No. 12/2010), Mr. JM Choudhury, learned Senior counsel, appearing on behalf of the accused Debasish Bhattacharjee (i.e., Appellant in Criminal Appeal No. 13/2010) and Mr. M. Mukherjee, learned Counsel, appearing for the accused Sandip Kumar Ghosh (i.e., Appellant in Criminal Appeal No. 14/2010). We have also heard Mr. A. Talukdar, learned Counsel, appearing on behalf of the accused Samir Ahmed (i.e., Appellant in Criminal Appeal No. 24/2010), Mr. G.N. Sahewalla, learned Senior counsel, appearing on behalf of the accused Ashringdaw Warisa (i.e., Appellant in Criminal Appeal No. 35/2010) and Mr. D.K. Das, learned Senior counsel, appearing on behalf of the Respondents.

BACKGROUND:

5. The materials facts, giving rise to these appeals, may, in brief, be set out as


under:

(i) Some significant amendments have been made in the Unlawful Activities (Prevention) Act, 1967, by the Unlawful Activities (Prevention) Amendment Act, 2008, the amendment having come into force on 31.12.2008. The amendments, amongst Ors. , introduced certain conditions, whereby the powers of the court, under Section 437 of the Code of Criminal Procedure, have come to be restricted by placing some fetters on the court's discretion to allow an accused person to go on bail.

(ii)BasisthaP.S. Case No. 170/2009, under Section 120B/121/121A IPC read with Section 25(1B)(a), Arms Act, was, initially, registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01.04.2009, at about 4-00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 were intercepted at 14th Mile G.S. Road, Guwahati, and searched, both the accused, suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, and two pistols were recovered, the money being meant for purchase of arms and ammunitions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produced before the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused aforementioned were remanded to police custody.

(iii) On 18.05.2009, both the accused,namely, Phojendra Hojai and BabulalKemprai, were granted bail by the High Court,in exercise of its powers under Section 439 Code of Criminal Procedure, in Bail Application No. 1637/2009.

(iv) On 31.05.2009, Mohit Hojai, thethen Chief Executive Member, N.C. HillsAutonomous Council, and R.H. Khan, whowas not only the Deputy Director, SocialWelfare Department, but also the LiaisonOfficer, N.C. Hills Autonomous Council,were arrested by Assam Police and, on theirproduction before the Chief Judicial Magis-trate, Kamrup, they were remanded to po-lice custody for two days. The Court, on theprayer for extension of police custody madeby the Investigating Officer of the Assam Po-lice, allowed further extension of the policecustody for a period of two more days by itsorder, dated 02.06.2009. However, furtherprayer for custodial interrogation was rejectedby the Chief Judicial Magistrate, Kamrup,who, however, granted permission to the In-vestigating Officer to interrogate accusedRedaul Hussain Khan, in Central Jail,Kamrup, Guwahati. On the same day, thelearned Court also rejected accused RedaulKhan's prayer for granting him bail.

(v) While investigation of Basistha PoliceStation Case No. 170/2009 aforementionedwas pending with the State police, the Cen-tral Government, in exercise of its power un-der Section 6(5), read with Section 8 of theNational Investigation Agency Act, 2008 (inshort, 'the NIA Act'), directed, on 01.06.2009, investigation of the said case by the National Investigation Agency (in short, 'the Agency'). In terms of the directions, so issued by the Central Government, the Agency registered a case under the NIA Act, the Case being NIA Case No. 1/2009.

(vi) Before, however, registration of the case aforementioned by the Agency, threemore persons, namely, 1. Mihir Barman @Jewel Garlossa @ Debojit Sinha, 2.Ahsringdaw Warrisha @ Partha Warisha, and3. Sameer Ahmed, were arrested by theAssam Police, at Bangalore, in


connectionwith Basistha Police Station case aforemen-tioned, on 30.05.2009 and 03.06.2009, re-spectively. The Agency moved, 05.06.2009,the Chief Judicial Magistrate, Kamrup, andfiled FIR in the NIA Case No. 1 /2009 afore-mentioned. On 06.06.2009, the accused per-sons were, on being produced before theChief Judicial Magistrate, Kamrup, remandedto police custody. In terms of the order,passed by the Chief Judicial Magistrate, on06.06.2009, Basistha P.S. Case No. 170/2009 aforementioned was tagged with theNIA Case No. 1/2009 and, on the basis ofthe application made by the Agency, the Courtallowed accused Mohit Hojai and R.H.Khan to be taken into custody by the Agencyfor a period of 10 days and the three accused,namely, 1. Mihir Barman @ Jewel Garlossa@ Debojit Sinha, 2. Ahsringdaw Warrisha @Partha Warisha, and 3. Sameer Ahmed, wereremanded, for a period of 14 days, to thecustody of the Agency.

(vii) On 11.06.2009, on the prayer of theAgency, the Court of the Chief Judicial Mag-istrate, Kamrup, added Sections 17/18/19 ofthe Unlawful Activities (Prevention) Act,1967, to the NIA Case No. 1/2009 afore-mentioned and, on the prayer of the Agency,the Court of the Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in purported exercise of its power under Section 167 of the Code of Criminal Procedure, on the ground that no court has so far been constituted under the NIA Act.

(viii) By a Gazette notification, dated09.07.2009, issued by the Government ofIndia, Ministry of Home Affairs, in exerciseof its powers under Section 3 of the UnlawfulActivities (Prevention) Act, 1967, DHD(J)along with its factions, wings and front orga-nizations came to be declared as 'unlawfulorganization'.

(ix) Three of the accused persons,namely, R.H. Khan, Ahsringdaw Warrisha@ Partha Warisha and Sameer Ahmed, then,approached this Court seeking to invoke itsjurisdiction under Section 439 Code of Criminal Procedure. Noneof the accused aforementioned applied forbail to the Chief Judicial Magistrate, Kamrup,or to the Sessions Judge, Kamrup; rather, theyapplied for bail, directly, to this Court underSection 439 Code of Criminal Procedure.

(x) One of the important questions, whicharose before the High Court, in the matter ofapplication for bail, which the five accusedaforementioned had so made under Section 439 Code of Criminal Procedure to this Court, was as to whetherthe bail applications were maintainable in law.

(xi) Upon a threadbare discussion, the saidthree bail applications, made under Section 439 Code of Criminal Procedure, seeking to invoke High Court'sjurisdiction to grant bail in favour of the ac-cused aforementioned, were rejected, on29.07.2009, by one of us (Ansari, J.) on theground of lack of jurisdiction, laying down,inter alia, that under the scheme of the provi-sions contained in the NIA Act read with theprovisions of remand and bail as stand incor-porated in the Code of Criminal Procedure,a person, arrested in connection with an of-fence, under the NIA Act, can be remandedto custody, police or judicial, by the Special Court, where the Special Court has been constituted, or by the Court of Session, where the Special Court has not been constituted. The Court also held that the source of power of the Special Court or the Court of Session, as the case may be, to consider an application for bail is traceable to, and governed by, the provisions of Section 437 Code of Criminal Procedure and while considering such an application for bail,


the Special Court or the Court of Session, as the case may be, will not exercise the power of bail as if it is considering an application for bail under Section 439 and, consequently, the Special Court or the Court of Session, as the case may be, would have all the limitations, which a Magistrate has, while deciding an application for bail, under Section 437 Code of Criminal Procedure and the provisions, contained in Section 439 Code of Criminal Procedure, cannot be resorted to for the purpose of granting bail and it was also held by the High Court, in its order, dated 29.07.2009, aforementioned, that against an order, passed by a competent court, rejecting bail, or granting bail, the remedy of an aggrieved party lies in preferring an appeal to the High Court, in terms of Section 21(4) of the NIA Act, and in not making any application under Section 439 Code of Criminal Procedure. This Court, therefore, held in its order, dated 29.07.2009, that such an appeal would require hearing by a Division Bench of the High Court and that in such an appeal, even the merit of the order, granting or refusing bail, can be questioned. The decision came to be reported in MANU/GH/0759/2009 : (2009) 3 GLT 855: Redaul Hussain Khan and Ors. v. State of Assam and Ors. While laying down the law, as indicated hereinbefore, the Court observed and held as under:

77. What emerges from the above discussion is that it is the Special Court under the NIA Act, or the Court of Session, when the Special Court has not been constituted, where an accused is required to be produced if he is arrested in connection with an offence punishable under the NIA Act and, upon his production, it is the Special Court or the Court of Session, as the case may be, which shall have the power to grant bail. The source of power of the Special Court or the Court of Session, as the case may be, to consider an application for bail is traceable to, and governed by, the provisions of Section 437 of the Code and while considering such an application for bail, the Special Court or the Court of Session, as the case may be, will not exercise the power of bail as if it is considering an application for bail under Section 439 and, consequently, the Special Court or the Court of Session, as the case may be, would have all the limitations, which a Magistrate has, while deciding an application for bail, under Section 437 of the Code.

X X X

106. What surfaces from the above discussion, held, as a whole, is that except as provided in Section 167(2A) of the Code, a person, arrested in connection with an offence, under the NIA Act, can be remanded to custody, police or judicial, by the Special Court, where the Special Court has been constituted, or by the Court of Session, where the Special Court has not been constituted. In view of the fact that the NIA Act envisages a situation, wherein an investigation, as in the present case, may be entrusted to the National Investigation Agency after the State police had made some investigation, it further follows that once the investigation, under the scheme of the NIA Act, is taken over by the Agency, it is the Special Court or the Court of Session, as the case may be, which can authorize further detention of an arrested accused. When such an arrested accused applies for bail to the Special Court or the Court of Session, as the case may be, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code. Even a High Court cannot invoke its powers under Section 439, to grant bail if it has been refused by the Special Court or the Court of Session, as the case may be, nor can the High Court, in exercise of its power, under Section 439, cancel bail if bail has been granted to such an accused by the Special Court or the Court of Session, as the case may be. If the bail has been refused or granted by the Special Court or the Court of Session, as the case may be, the aggrieved party may, however, prefer an appeal, in terms of Section 21, to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned.


107. In the backdrop of the position of law, as indicated above, it becomes clear that the present three applications for bail, which have been made under Section 439 of the Code, are not entertainable in law and must, therefore, fail.

108. In the result and for the reasons discussed above, all these three bail applications are hereby dismissed as not maintainable.

(xii) Complying with the position of law, as had been laid down, in Redaul Hussain Khan and Ors. (supra), one of the accused, namely, Redaul Hussain Khan, filed an application before the Sessions Judge (Special Court), Kamrup, Guwahati, seeking bail, but his bail application came to be rejected on 14.08.2009. Thereafter, on an application, made by the NIA, on 27.08.2009, the learned Sessions Judge (Special Court), Kamrup, Guwahati, by its order, dated 28.08.2009, extended the period for completion of investigation into the case by a further period of 60 days in terms of Section 43D(5) of the 1967 Act read with Section 167 Code of Criminal Procedure. The order, dated 14.08.2009, of the learned Sessions Judge (Special Court), Kamrup, Guwahati, rejecting the bail applications came to be unsuccessfully challenged by Redaul Hussain Khan and some Ors. , before a Division Bench of this Court, by way of appeal under Section 21(4) of the NIA Act. The said appeal came to be dismissed by a Division Bench of this Court on 19.09.2009. In the meanwhile, however, the Special Court, Central Bureau of Investigation, Assam, Guwahati, was notified by the Central Government, in exercise of its power under Section 11(1) of the NIA Act, vide Gazette notification, dated 01.09.2009, issued by the Government of India, Ministry of Home Affairs, as the 'Special Court' for the purpose of the NIA Act.

(xiii) As against the dismissal of his appeal and rejection of bail by the order, dated 19.09.2009, passed by a Division Bench as mentioned above, one of the accused, namely, Redaul Hussain Khan, carried the matter, by way of a Special Leave Petition, to the Supreme Court. By its decision, pronounced on 09.11.2009 reported in MANU/SC/1877/2009 : (2010) 1 SCC 521: Redaul Hussian Khan v. State of Assam and Ors., the Supreme Court observed, inter alia, that there was little doubt that even on the date, when accused Redaul Hussain Khan was apprehended, DHD(J) had been indulging in terrorist act, although it came to be declared as a 'unlawful association' some time latter, i.e., on 09.07.2009. The Supreme Court made it clear, in its order, dated 09.11.2009, that having considered the submissions, made before it, it was unable to agree with the submissions, made on behalf of the accused-Petitioner, Redaul Hussain Khan, that to the facts of the case, the provisions of the Unlawful Activities (Prevention) Act, 1967, were not attracted. The Supreme Court further held that it was unable to accept the submissions, made on behalf of the Petitioner, Redaul Hussain Khan that merely because of the fact that DHD(J) had not been declared as an 'unlawful organization', when Redaul Hussain Khan was arrested, the said organization could not have been taken to have been indulging in terrorist act, or that the Petitioner could not have been alleged to have the knowledge of such activities of the DHD (J). With the conclusions, so reached, the Supreme Court rejected Redaul Hussain Khan's application for bail by laying down that the learned Sessions Judge (Special Court), Kamrup, Guwahati, had the jurisdiction to extend the time for completion of investigation in terms of the amended provisions, introduced by way of Section 43D(5) of the 1967 Act, read with Section 167 Code of Criminal Procedure. The relevant observations, made by the Apex Court, in Redaul Hussain Khan (supra), read as under:

15. Mr. Rawal submitted that although Mr. Ghosh had referred to some newspaper reports indicating that there was a possibility of amnesty being granted to the members of DHD(J), the same was yet to materialize, and, on the other hand, it also indicated that the said organization was indulging in terrorist activities. Accordingly, in view of the definition of "terrorist act" in Section 15 of the 1967 Act and the provisions of Sections 13 and 17 thereof, there was little doubt that even


on the date when the Petitioner was apprehended, DHD(J) was indulging in terrorist acts, although, it came to be declared as an "unlawful association" sometime later. Mr. Rawal urged that having regard to the above, the Special Leave Petitions filed against the order of the High court refusing to grant bail were liable to be dismissed.

16. We have carefully considered the submissions made on behalf of the respective parties and we are unable to agree with Mr. Ghosh that the provisions of the Unlawful Activities (Prevention) Act, 1967, would not be attracted to the facts of the case. We are also unable to accept Mr. Ghosh's submissions that merely because DHD(J) had not been declared as an "unlawful association" when the Petitioner was arrested, the said organization could not have indulged in terrorist acts or that the Petitioner could not have had knowledge of such activities.

17. Accordingly, Mr. Ghosh's submissions regarding the grant of statutory bail have to be rejected since, in our view, the learned Sessions Judge (Special Court) had the jurisdiction to extend the time for completion of the investigation.

(xiv) Thereafter, three more persons, namely, Jayanta Kumar Ghosh, Debasish Bhattacharjee @ Bappi and Sandeep Kumar Ghosh @ Sambhu, came to be arrested on 30.10.2009. On their production before theSpecial Court, they were remanded to custody.

(xv) A charge-sheet has come to be laid,on 17.11.2009, before the learned SpecialCourt, by the NIA against as many as 14 ac-cused persons including those persons, whosenames have been mentioned above. The threeaccused persons, namely, Jayanta KumarGhosh, Debasish Bhattacharjee @ Bappi, andSandeep Kumar Ghosh @ Sambhu, hadjointly applied for bail, but their applicationsfor bail were rejected by4he learned SpecialCourt on 31.12.2009. As against the order,rejecting their prayer for bail, as indicatedabove, they have preferred appeals, underSection 21 of the NIA Act, to this Court.Similarly, accused Ashringdaw Waris andaccused Samir Ahmed, too, on failing to ob-tain bail from the learned Special Court, have,after filing of the charge-sheet against them,preferred appeals and all these appeals, asmentioned above, have been heard togetherand are being disposed of by this commonjudgment and order.

(xvi) As far as accused Redaul HussainKhan is concerned, he filed, after the charge-sheet already stood laid by the NIA, an ap-plication for bail in the Special Court, atGuwahati, on the ground of his sickness. Byorder, dated 25.01.2010, the learned Spe-cial Judge granted interim bail to accusedRedaul Hussain Khan and this direction forinterim bail was, eventually, made absolute on 29.01.2010. Aggrieved by the order, dated29.01.2010, whereby accused RedaulHussain Khan was granted bail, the NIA pre-ferred an appeal, which gave rise to Criminal Appeal No. 25/2010. The appeal has been allowed and the order, granting bail in favour of accused Redaul Hussain Khan, has been set aside by a separate judgment and order delivered by us.

SUBMISSIONS

6. Appearing on behalf of the accused-Appellant, Jayanta Kumar Ghosh, Mr. PK Goswami, learned Senior counsel, has pointed out that the Appellant, on being informed by the NIA, that his presence was needed by the NIA, had appeared before the investigating agency, both in Delhi and also in Guwahati, he was arrested on 31.10.2009 and remanded to judicial custody and the charge-sheet of the case has been submitted on 17.11.2009.

7. It is contended by Mr. Goswami that the Appellant, Jayanta Kumar Ghosh, is a businessman, he is a catering contractor under the Railways, there are about 400 employees working under him, he has vast business, he has his roots in the society and there is no chance of his


absconding. The Appellant, submits Mr. Goswami, has been cooperating with the investigating agency, his father died after his arrest and he was allowed to go on conditional bail on 16.12.2009 and remained on bail till 21.12.2009. According to Mr. Goswami, the conduct of Appellant, Jayanta Kumar Ghosh, during investigation and even during the period, when he had enjoyed conditional bail, was not such, which could raise reasonable apprehension of his either absconding or tampering with witnesses.

8. Taking this Court traverse through various materials, which the NIA claims to have collected during investigation, Mr. Goswami submits that there is no truth in any of the allegations made against the Appellant, Jayanta Kumar Ghosh. Mr. Goswami also submits that the Appellant, Jayanta Kumar Ghosh, was simply a businessman and knew persons like Mohit Hojai merely as a politician and an elected functionary of North Cachar Hills Autonomous Council (in short, 'NCHAC'). The Appellant, Jayanta Kumar Ghosh, according to Mr. Goswami, had no idea as to what the actual game plan of accused Mohit Hojai was, the Appellant never carried any money for, or on behalf of, Mohit Hojai or Niranjan Hojai and/or handed over the same for being taken out of the country, as alleged by the NIA, by hawala operation, for purchase of arms and ammunitions. The Appellant, Jayanta Kumar Ghosh, was, submits Mr. Goswami, never involved in any acts of forcing any Government servant or anyone else to place supply orders or to make payment for materials, which were never supplied. The Appellant, in fact, contends Mr. Goswami, never owned any of the business concerns, namely, Maa Traders, Jeet Enterprise, Loknath Trading, etc., which had allegedly collected orders by intimidating officers concerned and siphoned money out of the country to purchase arms and ammunitions for carrying on activities of DHD(J). There is not even a particle of evidence on record, contends Mr. Goswami, to show that the Appellant, Jayanta Kumar Ghosh, has had been a member of DHD(J). Mr. Goswami submits that this Appellant was not also involved in any manner, in the act of collection and/or raising of funds for any 'terrorist gang' or 'terrorist organization' within the meaning of these terms used in the UA(P) Act, 1967. In such circumstances, further contends Mr. Goswami, the Appellant, Jayanta Kumar Ghosh, cannot be said to have committed any offence of waging war against the State or of being involved in terrorist acts. Mr. Goswami submits that the penal provisions of Section 43D(5) of the UA(P) Act, 1967, and/or the proviso to Section 43D(5) and/or the penal provisions of Sections 120B, 121 and/or 121A IPC are not attracted to the facts of the present case so far as, at least, the Appellant, Jayanta Kumar Ghosh, is concerned. Even as regards supply of materials, submits Mr. Goswami, though supplies might not have been made at the time, when the payments were allegedly made, yet the supplies have been substantially made in terms of the supply orders. Even if it is assumed, contends Mr. Goswami, that the Appellant, Jayanta Kumar Ghosh, had carried money, on behalf of accused Mohit Hojai, the same will not become an offence inasmuch as he, at best, carried the money, belonging to Mohit Hojai, without knowing the real object with which the money was being sent or utilized. In fact, according to Mr. Goswami, nothing has been uncovered from the investigation to show that the money, which the Appellant, Jayanta Kumar Ghosh, had allegedly carried, or got handed over, to different people, at the instructions of Mohit Hojai, were used for carrying out any terrorist act. There could be many reasons, contends Mr. Goswami, for carrying somebody's money and it cannot be said, in the absence of anything positive on record, that the Appellant, Jayanta Kumar Ghosh, had carried money knowing that the money was to be utilized for terrorist acts. There is nothing on record, submits Mr. Goswami, to show that the money, which was allegedly carried by the Appellant, Jayanta Kumar Ghosh, had been used for purchase of arms and ammunitions.

9. At best, the materials, as collected by the investigating agency, show, according to Mr. Goswami, nothing more than the fact that the Appellant, Jayanta Kumar Ghosh, was involved in obtaining cheques and realizing the money therefrom without supplies having been made and/or that subsequent to obtaining of cheques and realization of money therefrom, the Appellant, Jayanta Kumar Ghosh, had supplied materials, in part, to the concerned Government departments. There are, submits Mr. Goswami, several such contractual agreements, where payments are made in advance. Merely because of the fact, therefore, contends Mr. Goswami, that the Appellant, Jayanta Kumar Ghosh, had obtained cheques without making supplies of materials cannot be stretched to mean that the Appellant had raised funds for terrorist acts and/or for carrying out the alleged subversive activities of DHD(J) and, hence, the alleged acts of this Appellant does not make out any case, which could attract the proviso to Section 43D


(5), nor is there any material, reiterates Mr. Goswami, to show that this Appellant was, in any way, involved in waging war against the State. In such circumstances, the Appellant, Jayanta Kumar Ghosh, has not committed any offence, submits Mr. Goswami, which enables the learned Special Court reject the Appellant's application for bail.

10. There is, points out Mr. Goswami, a large number of witnesses to be examined and a lot of documents to be proved. Consequently, the trial would take a long time to be concluded and a free man is better placed to conduct his defence and, hence, in such circumstances, particularly, when there is no possibility, in the facts and attending circumstances of the present case, of the Appellant, Jayanta Kumar Ghosh, running away and/or tampering with witnesses and/or influencing trial in any manner, it would be punitive to detain the Appellant, in custody, any longer and, hence, he may be released on bail.

11. To strengthen his argument and to support his plea for bail of the accused-Appellant, Jayanta Kumar Ghosh, Mr. Goswami has pointed out that two of the co-accused, who were caught with the money, namely, Babul Kemprai and Phojendra Hojai, have been released on bail. It was, therefore, according to Mr. Goswami, highly unjust and illegal not to have released the present Appellant on bail, particularly, when there could be no genuine apprehension that the Appellant would not be available to face trial and/or he would interfere with the conduct of trial. In support of his submissions, Mr. Goswami has placed reliance on the case of Sh. Gurbaksh Singh Sibbia and Ors. v. State of Punjab reported in MANU/SC/0215/1980 : (1980) 2 SCC 565, S.N. Thapa v. State of Maharashtra, reported in MANU/SC/0693/1994 : (1994) 4 SCC 38, Union of India v. Thamisharasi and Ors. reported in MANU/SC/0714/1995 : (1995) 4 SCC 190, and Usmanbhai Dawoodbhai Memon v. State of Gujarat reported in (1998) 2 SCC 271.

12. As far as Mr. J.M. Choudhury, learned Senior counsel, appearing for the Appellant, Sandip Ghosh, and Mr. Milon Mukherjee, learned Counsel, appearing on behalf of accused Debasish Bhattacharjee, is concerned, they have substantially adopted the arguments of Mr. Goswami, particularly, with regard to Mr. Goswami's submission that in the facts and attending circumstances of the present case, neither the proviso to Section 43D(5) of the UA(P) Act nor the penal provisions of Sections 120B, 121 and/or 121A IPC are attracted to the facts of the present case. Mr. Choudhury's argument is that there is no credible evidence of the accused-Appellant, Sandip Ghosh, being a member of DHD(J) as alleged by the NIA or of funds being raised by him for DHD(J) or of his having knowledge of the fact that the funds were being used or would be used, in any manner, in any terrorist act. In these circumstances, when the Appellant, Sandip Ghosh, according to Mr. Choudhury, has his family business, would be available for trial, charge-sheet has already been submitted in the case and there is no possibility of his tampering with the witnesses, he ought to have been directed to be released on bail and the learned Special Court has fallen into error in rejecting his application for bail.

13. As far as Mr. M. Mukherjee, learned Counsel for the Appellant, Debasish Bhattacharjee, is concerned, he, apart from adopting the submissions made by Mr. P.K. Goswami and Mr. J.M. Choudhury, points out that two persons, namely, Babul Kemprai and Phojendra Hojai, have already been released on bail and merely because of the fact that the case was, later on, taken over by the NIA, it was highly unjust to treat the accused-Appellants and the persons, similarly situated, as different from the ones, who had been arrested with money and yet, later on, allowed to be enlarged on bail by the High Court in exercise of its powers under Section 439 Code of Criminal Procedure.

14. In tune with the submissions of Mr. P.K. Goswami and Mr. J.M. Choudhury, Mr. Mukherjee too submits that the evidence on record are grossly inadequate to hold that the Appellant, Debasish Bhattacharjee, was a member of DHD(J) and/or that he was involved, in any manner, in any terrorist acts or raised funds for any terrorist gang or terrorist organization nor is there any material on record, according to Mr. Mukherjee, to show that the Appellant, Debasish Bhattacharjee, was, at any stage, interrogated, while injudicial custody, or his presence, in custody, is required for fair trial. There is also nothing on record, submits Mr. Mukherjee, to show that if the Appellant, Debasish Bhattacharjee, is given the liberty of bail, it will adversely affect trial. In fact, submits Mr. Mukherjee, the Appellant, Debasish Bhattacharjee, is a person firmly rooted to the society, he has his family and there is no question of his absconding nor is


he in such a position as to influence conduct of the trial by intimidating witnesses or tampering with the witnesses.

15. Resisting the appeals, Mr. D.K. Das,learned Senior counsel, who appears on be-half of the NIA, has submitted that enoughmaterials have been collected by the NIAshowing that Jayanta Kumar Ghosh, in conspiracy with Mohit Hojai, intimidated Govt.officers and forced them not only to placeorders for supply of materials, but forcedthem also to hand over cheques without making supply of materials and he, with the help,assistance and support of accused SandipGhosh and Debasish Bhattacharjee, encashedcheques without even making supply of materials. Supply orders were obtained, submitsMr. Das, in the name of the three firms aforementioned, which are projected to be ownedby accused Sandip Ghosh, but were actuallyowned by Jayanta Kumar Ghosh.

16. The present one, according to Mr. Das, is not a case of some businessman merelyobtaining money by not making supply ofmaterials. In fact, points out Mr. Das, somematerials have been supplied, but that wasdone after the arrests were made in order topaint the transactions as genuine and bonafide. The materials, collected during investi-gation, loudly and clearly speak, submits Mr. Das, that there was deep-seated conspiracyamong Niranjan Hojai, Mohit Hojai, RedaulHussain Khan, Jayanta Kumar Ghosh, Sandip Ghosh and Debasish Bhattacharjee and the other co-accused. These accused persons were not merely indulging in obtaining money from the Government departments by illegal means, such as, fraud and misappropriation; rather, the materials collected, against them, clearly show that by threatening and putting in fear the Government officials, the Appellants, such as. Jayanta Kumar Ghosh, Sandip Ghosh and Debasish Bhattacharjee, and their co-accused, Mohit Hojai and Redaul Hussain Khan, forced the Government servants to place supply orders and also make payments without even receiving the supplies therefor.

17. Mr. Das further submits that in order to siphon away money, accounts were opened, at Guwahati, showing fictitious business addresses and, then, money were carried by various means to different places of India. In fact, points out Mr. Das, on quite a few occasions, money was carried over by Jayanta Kumar Ghosh or through his associates to Phojendra Hojai, who has been constantly in touch with Mohit Hojai and Niranjan Hojai. Mr. Das further points out that the money was taken out of the country for purchase of arms and ammunitions in order to enable them to carry out the terrorist acts and activities of DHD (J).

18. Close association of the present Appellants with Mohit Hojai and Niranjan Hojai clearly show, contends Mr. Das, that there was deep-seated conspiracy and in this conspiracy, they all acted as members of the said terrorist organization. The investigation establishes, points out Mr. Das. a clear case against them of having indulged in waging war against the State and in carrying out the terrorist acts by helping the concerned activists in the act of collection and raising of funds. In such circumstances, the bar, imposed by the proviso to Section 43D(5) of the UA(P) Act, 1967, is, according to Mr. Das, squarely attracted and the Appellants' applications for bail has been rightly rejected by the learned Special Court.

19. In the face of the serious nature of accusations, which exist on record against the Appellants, such persons, according to Mr. Das, can prove extremely dangerous and they would cause serious impediments to the trial if they were allowed to go on bail inasmuch as they would not only abscond, but would also intimidate the witnesses dissuading them from disclosing the truth before the Court. In this regard, Mr. Das also points out to the fact that Niranjan Hojai, Commander-in-Chief of DHD(J), who had surrendered and had been kept, in a designated camp, by the State Government, has already absconded.

20. To strengthen his argument, Mr. Das has also pointed out that investigation reveals the role, which accused Redaul Hussain Khan has played in collection of money, inasmuch as he was, according to what the investigation reveals, virtually running, in collusion with Mohit Hojai, a parallel Government by not only allocating funds, placing supply orders, but also by forcing other Government officers and also his subordinates to clear falsely raised bills and issue cheques without obtaining supplies.


21. Appearing on behalf of the Appellant, Ashringdaw Warisa, Mr. Sahewalla, learned Senior counsel, submits that the case of the prosecution against the Appellant is not only false, but vague and incoherent and that the Appellant's application for bail has been rejected without application of mind. Mr. Sahewalla submits that as far as the case of the Appellant, Ashringdaw Warisa, is concerned, the materials, collected by the investigating agency, cannot be relied upon and in consequence thereof, the proviso to Section 43D(5) of the UA(P) Act, 1967, does not apply and this Appellant ought to have been allowed to go on bail by the learned Special Court. There is nothing credible in the materials, collected during investigation, to show, according to Mr. Sahewalla, that the Appellant, Ashringdaw Warisa, was a part of any criminal conspiracy or was involved in any activities of waging war against the State or was a member of a terrorist association or was involved in terrorist acts. Mr. Sahewalla too submits that it is highly unjust to allow the two accused, Babul Kemprai and Phojendra Hojai, who were allegedly caught red handed with huge sums of money, to go on bail and refuse bail to the Appellant, Ashringdaw Warisa.

22. As far as Appellant, Samir Ahmed, is concerned, the submission, made on his behalf, by Mr. Talukdar, learned Counsel, is that this Appellant is completely innocent, he knew Ashringdaw Warisa from his childhood and it is for this reason that he had helped him in the latter's stay in Bangalore and that this Appellant is, in no way, involved in any of the activities of the DHD (J). Mr. Talukdar, learned Counsel, too submits that two accused, Babul Kemprai and Phojendra Hojai, who allegedly had direct nexus with DHD(J) and were arrested with money and weapons, have been allowed to go on bail, but the present Appellant's prayer for bail has been rejected by a misconceived application of the proviso to Section 43D(5) on the ground that this Appellant is involved in criminal conspiracy and waging war against the State. The Appellant, Samir Ahmed, therefore, needs to be allowed, according to Mr. Talukdar, to go on bail inasmuch as he has his own family and there is no scope of his absconding or tampering with witnesses.

23. Resisting the bail applications of Appellants, Ashringdaw Warisa and Samir Ahmed, Mr. D.K. Das, learned Senior counsel, has submitted that in the early part of June, 2009, a team of Assam Police personnel went to Bangalore on receiving information as regards presence of Jewel Garlosa, Chairman of DHD(J), and it is there that they arrested three persons, namely. Jewel Garlosa, Ashringdaw Warisa (A-6) and Samir Ahmed (A-7). Investigation has revealed, submits Mr. Das, that Samir Ahmed, an employee of HSBC Bank, Bangalore, is a childhood friend of Ashringdaw Warisa (A-6) and had settled down in Bangalore. Knowing fully that accused Warisa is a member of dreaded DHD(J) and had been earlier caught with a consignment of weapons, Samir Ahmed invited Ashringdaw Warisa to Banglore for conducting his unlawful activities and it is on this basis that accused Warisa came to Bangalore and established his safe hideout there. Investigation also reveals, submits Mr. Das, that after setting up his hideout at Bangalore, accused Warisa went to accompany accused Jewel Garlosa (A-5) from Nepal and that accused Warisa, having received Jewel Garlosa at Gorakhpur, brought him to Bangalore by air via Delhi. Mr. Das further submits that both accused Warisa and Jewel Garlosa procured SIM cards, driving licenses, etc, on providing fake identities in the name of Anandra Singh and Debojit Singha and, in making all these fake documents of identity, accused Samir Ahmed helped them inasmuch as it is accused Samir Ahmed, who forged the class-x marksheet of his wife, Jilly Basumatary, and also a lease deed to show them as regular residents of Bangalore.

24. As a matter of fact, points out Mr. Das, accused Warisa and accused Garlosa had actually asked Samir Ahmed to make a fake passport, but the passport could not be managed and, hence, the driving licence in a fake name was prepared and a number of SIM cards were obtained. Mr. Das also points out that accused Samir Ahmed helped accused Warisa and Garlosa in creating e-mail accounts and taught them how to use internet, whereupon accused Warisa and Garlosa sent e-mails to Niranjan Hojai. They also sent e-mails to Ranjan Daimari of dreaded NDFB regarding providing of shelter and logistics to the cadres of DHD(J). In return of the help, which Samir Ahmed rendered, he (accused Samir Ahmed) received, according to Mr. Das, money and free trip to Goa.

25. Investigation has further revealed, submits Mr. Das, that accused Jewel Garlosa and Ashringdaw Warisa used to visit Bodyline, a gymnasium, under the assumed names of Debojit


Singha and Anandra Singha and the house, where they used to stay, was taken, on rent, by accused Samir Ahmed on the plea that the said accused were members of his family.

26. According to Mr. Das, while accused Jewel, Chairman, DHD(J), chose to shift his base to Bangalore, Niranjan Hojai, Commandar-in-Chief, DHD(J), continued to live abroad controlling the activities of DHD(J) over phone and e-mail, accused Warisa met Niranjan Hojai and Jewel Garlosa in Kathmandu, where the two accused were staying in a hotel and after meeting Ahringdaw Warisa, both Niranjan Hojai and Jewel Garlosa, by using Nepali passports, went, on 25.12.2007, in the same flight to Bangkok, they stayed in Radisson hotel in Bangkok and returned to Kathmandu and that the main purpose of Niranjan Hojai visiting Nepal, Thailand and Malyasia was to procure arms and ammunitions for waging war against the State and for terrorist activities.

RELEVANT LEGISLATIONS

27. In the light of the facts, as have been set out above, leading to the present appeals, materials on record and the submissions made by the learned Counsel for the parties concerned, we, now, proceed to decide these appeals. Before, however, we proceed further, it is worth recalling that when the Terrorists and Disruptive Activities (Prevention) Act, 1987, was repealed, the Prevention of Terrorist Activities Act, 2002, came to be enacted to combat, amongst Ors. , the menace of terrorism. However, even Prevention of Terrorist Activities Act, 2002, came to be repealed in 2004 and when the terror attack took place in Mumbai on 26.11.2008, there was no specific legislation, in force, to help India's fight against terrorism against the national level inasmuch as investigations into the acts of terrorism were to be, ordinarily, carried by the various agencies at the State level. In the aftermath of Mumbai terror attacks. National Investigation Agency Act, 2008, (in short, the 'NIA Act'), therefore, came into force on 31.12.2008. The NIA created Special Courts for trial of scheduled offences. In order to make law more stringent than what it was, the Unlawful Activities (Prevention) Act, 1967 (in short, the 'UA(P) Act'), too, witnessed significant amendments introduced on31.12.2008.

28. In the light of the scheme of investigation as perceived by the NIA Act, the trial of scheduled offences, the relevant penal provisions and also the provisions with regard to bail, as have now been incorporated, in the UA(P) Act, 1967, the present appeal needs consideration.

29. As terrorism has become a threat to the very existence of human society and terrorist activities have not remained a localized crime, a national investigation agency, which can co-ordinate and oversee investigation into the offences having national and cross-border repercussion, was deemed necessary. It is to meet this requirement that the NIA has been given birth. Whether, under the scheme of our Constitution, the NIA is or is not a valid legislation has not been debated in the present set of cases.

30. Bearing in mind the threat of terrorism and its national and international ramifications, which India has to fight vis-a-vis the limitations on the powers of the Special Court to grant bail and the High Court's jurisdiction and powers in such matters, the present appeals, seeking to get set aside the order refusing to grant bail to the present Appellants needs to be examined.

31. We have already set out above the material facts, which have given rise to these appeals. We are in complete agreement with the propositions of law, laid down in Redaul Hussain Khan and Ors. v. State of Assam and Ors. reported in MANU/GH/0759/2009 : 2009 (3) GLT 855, and we see no reason to discuss, once again, the limitations, which the NIA Act has imposed on the powers of the Special Court in matters of granting of bail to a person, who is accused to have committed scheduled offence(s) as stand embodied in the NIA Act, except pointing out that from a careful reading of the provisions contained in Section 437, what becomes transparent is that Section 437(1) gives power to grant bail to a court 'other than the High Court or Court of Session'. Admittedly, a Special Court, under the NIA Act, is not a Court of Session and even the Court of Session, while acting as the Special Court under the NIA Act, does not, as already discussed above, act as a Court of Session. The Special Court is also not a High Court, for, a Special Court, as defined in Section 2(h), is a Court, which is constituted, under Section 11, by the Central Government or, under Section 22, by a State Government. The expression, 'a Court


other than the High Court, or the Court of Session', has very wide meaning and includes, within its ambit, not only the Magisterial Courts, but all such Courts, including a Special Court, which do not fall within the expressions, 'the High Court' or 'the Court of Session'. A Special Court, under the NIA Act, not being a High Court, or a Court of Session, would obviously fall within the expression 'a Court other than the High Court or the Court of Session'.

32. We, therefore, hold, in agreement with this Court's decision, in Redaul Hussain Khan and Ors. (supra), that the Special Court constituted, under the NIA Act, is a Court other than the High Court or the Court of Session as envisaged in Section 437 Code of Criminal Procedure. Consequently, the Special Court would have all the limitations, which a Magistrate has, while deciding an application for bail under Section 437 Code of Criminal Procedure.

33. We also agree, as laid down in Redaul Hussain Khan and Ors. v. State of Assam and Ors. reported in MANU/GH/0759/2009 : 2009 (3) GLT 855, that even the High Court, by invoking its powers under Section 439 Code of Criminal Procedure, cannot allow a person to go on bail if he is accused to have committed a scheduled offence under the NIA Act. The High Court's power to grant or refuse bail is traceable to Section 21(4) of the NIA Act inasmuch as Section 21(4) clearly lays down that an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. As already indicated in Redaul Hussain Khan and Ors.(supra) and we too take the same view that in an appeal under Section 21(4), the High Court will have the power to consider if, in the facts and attending circumstances of a given case and the law relevant thereto, bail could or could not have been granted by the Special Court.

PRINCIPLES GOVERNING, ORDINARILY, GRANTING OF BAIL

34. Generally, while considering an application for bail in anon-bailable case, the factors, to be considered, are:(i) whether there is any prima facie or reasonable ground, as the case may be, to believe that the accused had committed the offence, (ii) the nature and gravity of the offence, (iii) severity of the punishment if the accused happens to be convicted, (iv) chances of the accused absconding or fleeing away, if given the opportunity of bail, (v) the character, behaviour, antecedents, means, position and standing of the accused in the society, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with or the investigation being interfered with. While a vague allegation that the accused may tamper with the evidence or witnesses would not be a ground to refuse bail, the fact remains that when the accused is of such a character that his mere presence, at large, would intimidate the witnesses or if there is material to show that there is likelihood of the accused using his liberty to subvert justice or tamper with the evidence, then, bail would be refused.

35. Points out the Supreme Court, in State of Maharashtra v. Anand Chintaman Dighe reported in MANU/SC/0113/1990 : (1990) 1 SCC 397, that there are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court. Where the offence is of serious nature, the court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circumstances, which are peculiar to the accused, a reasonable possibility of presence of the accused not being secure at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such similar other considerations. (See also State v. Capt. Jagjit Singh reported in MANU/SC/0139/1961 : (1962) 3 SCR 622

36. In the State of UP (through CBI) v. Amarmani, Tripathi reported in MANU/SC/0677/2005 : (2005) 8 SCC 21, the Court has summed up the factors, which are, generally, required to be taken into account, while considering an application seeking bail. The relevant observations, made in this regard, read as under:

Fof18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused


absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT. Delhi: MANU/SC/0193/2001 : (2001) 4 SCC 280 : 2001 SCC (Cri) 674 and Gurcharan Singh v. State (Delhi Admn.): MANU/SC/0420/1978 : (1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan : MANU/SC/0214/2004 : (2004) 7 SCC 528 : 2004 SCC (Cri) 1977 (SCC pp. 535-36, para 11)

11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from no-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.(See Ram Govind Upadhvav v. Sudarshan Singh: MANU/SC/0203/2002 : (2002) 3 SCC 598 : 2002 SCC (Cri) 688 and Puran v. Rambilas: MANU/SC/0326/2001 : (2001) 6 SCC 338 : 2001 SCC (Cri) 1124.

(Emphasis is supplied)

REASONS FOR GRANTING BAIL-IMPERATIVES AND LIMITATIONS

37. It needs to be borne mmind that while granting bail, though a detailed examination of the evidence and elaborate documentation of the merits of a given case is not to be undertaken, the Court owes a duty to assign reasons for prima facie concluding as to why bail was being granted. So lays down the Supreme Court, in Puran v. Rambilas reported in MANU/SC/0326/2001 : (2001) 6 SCC 338, in the following words:

8. He submitted that in view of these observations the learned Additional Sessions Judge did not give reasons whilst granting bail. He submitted that in these circumstances the Additional Sessions Judge cannot be faulted. He submitted that the High Court could not cancel bail on this ground. We see no substance in this contention. Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. What the Additional Sessions Judge had done in the order, dated 11.9.2000, was to discuss the merits and demerits of the evidence. That was what was deprecated. That did


not mean that whilst granting bail, some reasons for prima facie concluding why bail was being granted did not have to be indicated.

38. The requirement of the law to assignprima facie reasons for granting bail has beeninsisted upon in Kalyan Chandra Sarkar v.Rajesh Ranjan @ Pappu Yadav and Anr. re-ported in MANU/SC/0214/2004 : (2004) 7 SCC 528, too, whereinthe Court observed, referring to Puran's case(supra), thus:

18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in the case Puran v. Rambilas: (SCC p. 344, para 8)

Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.

We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail.

39. Coupled with the above, the SupremeCourt, in Kalyan Chandra Sarkar (supra), hasheld that the Court shall exercise its discretion to grant bail in a judicious manner and not as a matter of course and though, on the subject of granting of bail, examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate, in such orders, the reasons for prima facie concluding as to why bail was being granted, particularly, when the accused is charged with having committed a serious offence, because the appellate Court has every right to know the reasons as to why bail has been granted. Any order, devoid of such reasons, would suffer from non-application of mind. This apart, reiterated the Supreme Court, in Kalyan Chandra Sarkar (supra), that the Court shall consider, among other circumstances, the following factors too before granting bail, namely, (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and (c) prima facie satisfaction of the court in support of the charge.

40. Cautioning the courts not to discuss, while considering the question of bail, too minutely, the merit of the materials available so as to avoid causing of prejudice to the parties concerned, the Supreme Court, in Vaman Narain Ghiya v. State of Rajasthan,MANU/SC/8394/2008 : (2009) 2 SCC 281. held as under:

11. While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-iudged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh v. Prabhakar Rajaram Kharote.) Where the offence is of serious nature, the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst Ors. the larger interest of the public.

(Emphasis is supplied)

41. From the discussions, held above, what surfaces is that a court, while granting or refusing bail, must assign the reasons for its decision. The reasons assigned, however, must not be an elaborate discussion of the materials collected so that the accused is not prejudiced and his


case must not appear to have been prejudged. There is, therefore, a need, on the part of the court, to maintain a balance between the need to assign reasons for refusing or granting bail, on the one hand, and the caution to be applied, on the other, to ensure that the assignment of reasons should not be so elaborate that the case of the accused appears to have been prejudged.

DIFFERENCE BETWEEN THE HIGH COURT'S APPELLATE JURISDICTION UNDER SECTION 24(1) OF THE NIA ACT VIS-A-VIS HIGH COURT'S POWER UNDER SECTION 439 Code of Criminal Procedure.

42. The question, which is, now, necessary to consider is as to how the provisions, embodied in Sub-section (1) of Section 24 of the NIA Act conferring appellate jurisdiction on the High Court, against orders granting or refusing bail by a Special Court, needs to be understood. In other words, the question is: How this appellate power, contained in Section 24(1), differs from the power, which the High Court, ordinarily, enjoys to grant or cancel bail under Section 439 Code of Criminal Procedure?

43. In order to clearly bring out the difference between Section 24(1) of the NIA Act vis-a-vis the provisions of Section 439 Code of Criminal Procedure, it is necessary to bear in mind the power of the High Court to grant or cancel bail under Section 439 Code of Criminal Procedure vis-a-vis a Magistrate's power to grant bail under Section 437 Code of Criminal Procedure. For better understanding of the matter, we may point out that Sub-section (1) of Section 437 Code of Criminal Procedure reads as under:

437. When bail may be taken in case of non-bailable offence. - (1). When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but -

(i) such person shall not be so releasedif there appear reasonable grounds for believing that he has been guilty of an offencepunishable with death or imprisonment forlife;

(ii) such person shall not be so releasedif such offence is a cognizable offence andhe had been previously convicted of an offence punishable with death, imprisonmentfor life or imprisonment for seven years ormore, of he had been previously convictedon two or more occasions of a cognizableoffence punishable with imprisonment forthree years or more but not less than sevenyears:

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this Sub-section without giving an opportunity of hearing to the Public Prosecutor.


44. A careful reading of Section 437(1) Code of Criminal Procedure shows that though a Magistrate may allow an accused, who is in custody, to go on bail even in a non-bailable case, such a person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Thus, Section 437(1) imposes limitation on the Magistrate's power to grant bail to a person accused of, or suspected of the commission of, an offence punishable with death or imprisonment for life if there appear reasonable grounds for believing that he has been so guilty.

45. What is, however, extremely important to note is that the legislature, while imposing limitation by Section 437(1) on the powers of the Magistrate, has expressly excluded from the purview of this limitatioa the Court of Session and the High Court. Having excluded from the embargo of the limitation, which Section 437(1) imposes on a Magistrate's power to grant bail. Section 439(1) Code of Criminal Procedure confers special powers on the High Court and the Court of Session to grant bail even when there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. In other words, unlike the limitations, which Section 437(1) imposes on the Magistrate's power to grant bail, there is no limitation imposed under Section 439 Code of Criminal Procedure against granting of bail by the High Court or the Court of Session to a person accused of having committed an offence punishable with death or imprisonment for life. Though, ordinarily, it would be legitimately expected that the accused would apply for bail to the Court of Session or the High Court if bail has been rejected by a Magistrate, there is no limitation imposed by Section 439(1) on the power of the Court of Session or the High Court to entertain an bail application by an accused, when he is arrested, without such application for bail having been moved before, and rejected by, the jurisdictional Magistrate. Unfettered though the power to grant bail under Section 439 Code of Criminal Procedure may be, the fact remains that even the High Court, while exercising power to grant bail under Section 439(1) Code of Criminal Procedure, cannot overlook the overriding considerations, which govern grant of bail, in a non-bailable case, such as, the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds, which cannot be exhaustively set out. This aspect of law clearly surfaces on a careful reading of the following observations made in Gurcharan Singh (supra):

18. ... With regard to the first category, Section 437(1) Code of Criminal Procedure imposes a bar to grant of bail by the Court orthe officer-in-charge of a police station to a person accused of or suspected of the commission of an offence punishable with death orimprisonment for life, if there appear reasonable grounds for believing that he has been soguilty .... On the other hand, if to either the officer-in-charge of the police stationor to the Court, there appear to be reasonablegrounds to believe that the accused has beenguilty of such an offence, there will be no question of the Court or the officer granting bail to him.

X X X

21. Section 437 Code of Criminal Procedure is concerned only with the Court of Magistrate. It expressly excludes the High Command the Court of Session.

22. ... Unless exceptional circumstances are brought to the noticeof the Court, which may defeat proper investigation and a fair trial, the Court will not declineto grant bail to a person, who is not accused ofan offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonmentfor life, he has, ordinarily, no option in the matter, but to refuse bail subject, however, to thefirst proviso to Section 437(1) Code of Criminal Procedure and in acase, where the Magistrate entertains a reasonable belief on the materials that the accusedhas not been guilty of such an offence. Thiswill, however, be an extraordinary occasionsince there will be some materials at the stageof initial arrest, for the accusation or for strongsuspicion of commission by the person of


suchan ffence.

X X X

24. Section 439(1) Code of Criminal Procedure of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1). there is no ban imposed under Section 439(1) Code of Criminal Procedure against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) Code of Criminal Procedure of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) Code of Criminal Procedure of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction inthe case; of tampering with witnesses; the history of the case as well as of its investigationand other relevant grounds which, in view ofso many valuable factors, cannot be exhaustively set out.

(Emphasis is added)

46. From the observations, made, particularly, at para 24 in Gurcharan Singh (supra), it becomes clear that unlike the ban,which Section 437(1) imposes on theMagistrate's power to grant bail in a case,where there appear reasonable grounds forbelieving that the accused has been guilty ofan offence punishable with death or imprisonment for life, there is no such limitation imposed on the powers of the High Court under Section 439(1) against granting of bail evenin a case, where a person is accused of anoffence punishable with death or imprisonment for life, though such an application forbail would be, ordinarily, made after the accused has failed to obtain bail from the Magistrate. This shows that, ordinarily, there is nobar for an accused to apply for bail directlyto the High Court by invoking the High Court'sjurisdiction under Section 439(1) Code of Criminal Procedure without moving for bail to the Magistrate. Similarly, an aggrieved person may apply for cancellation ofbail by invoking the High Court'sjurisdiction under Section 439(2) Code of Criminal Procedure.Once, however, the provisions for appeal ismade against an order granting or refusing bail,the recourse to Section 439 Code of Criminal Procedure cannotbe had for the purpose of either obtaining bailor to get the bail, already granted, cancelled.

47. As indicated by this Court, in RedaulHussain Khan and Ors. v. State of Assamand Ors. reported in MANU/GH/0759/2009 : 2009 (3) GLT 855, theSupreme Court, referring to its earlier decisions in State v. Capt. Jagjit Singh: AIR1962 SC 252 and Gurcharan Singh v.State (Delhi Admn.) reported in MANU/SC/0420/1978 : (1978) 1 SCC 118, in State of Gujarat v. Salimbhai Abdulgaffar Shaikh reported in MANU/SC/0676/2003 : (2003) 8 SCC 50, observed:

9. 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 and Gurcharan Singh v. State (Delhi Admn.) 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 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 ofbail 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.

48. The scheme of the NIA Act, if analysed carefully, shows that accused has to apply for bail, if he so chooses, to the Special Court and if bail is refused by the Special Court, then and then only, the accused may prefer an appeal to the High Court in terms of Section 24(1) against an order refusing to grant bail. In other words, without having applied for bail and the prayer for bail having been disallowed by the Special Court, a person, who is accused of having committed a scheduled offence covered by the scheme of the NIA Act, cannot directly apply for bail to the High Court under Section 439(1) or Section 24(1) of the NIA Act. Similarly, if the Special Court grants bail, the State may prefer an appeal to the High Court, in terms of Section 24(1), seeking cancellation of such bail. Hence, without applying for bail to the Special Court, an accused, who is arrested, cannot apply for bail to the High Court by taking recourse to Section 439 Code of Criminal Procedure.

49. An order refusing or granting bail, in a case under the Prevention of Terrorist Activities Act, 1987 too, was an appealable order under Section 34 thereof. Explaining the power of the High Court, while considering an appeal from an order granting bail and how it differs from an application for bail under Section 439 Code of Criminal Procedure, the Apex Court, in State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors. reported in MANU/SC/0676/2003 : (2003) 8 SCC 50, observed as under:

10. 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 the Code of Criminal Procedure and the 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, especially the submission of a lower court's decision to a 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.

11. 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 the 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 ofbail under Sub-section (2) of Section 439 of the Code wi II 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 the 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 ofbail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court.

50. Referring to the above observations, made in Salimbhai Abdulgaffar Shaikh (supra), this Court, in Redaul Hussain Khan (supra), held as under:

98. In the light of the observations made above, it becomes clear that an appeal is a proceeding to rectify an erroneous decision of a Court both on facts as well as on law. An order, granting or refusing bail, could have been, in the light of the provisions of Section 34(4), examined on merit by the High Court without any other fetters and while considering a question of cancellation of bail the general principles, governing Section 439(2) of the Code, would not come in the way. The Apex Court, in Salimbhai Abdulgaffar Shaikh (supra), while laying down that the scheme for appeal, under the POTA, is in contradistinction to that of the Code, pointed out that an appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing or granting bail, the accused cannot prefer appeal to the High Court seeking bail. What, further, follows from the above discussion is that even a High court could not have invoked its power, under the Section 439, to grant bail to a person, accused of an offence under the POTA. Consequently, in order to obtain release on bail, an accused person, arrested under the POTA, was required to, first, apply for bail to the Special court, where the Special Court was constituted, or to die Court of Session, where the Special Court was not constituted, and, if his application for bail was rejected, then and then only he could have preferred an appeal against the order refusing bail. Similarly, even the State could have preferred an appeal if the Special Court or the Court of Session, as the case may be, happened to grant bail to such an accused person in exercise of powers under Section 437 of the Code.

99. Though it was contended, in Salimbhai Abdulgaffar Shaikh (supra), that TADA had not taken away the High Court's power under Section 439, the Supreme Court, referring to Usmanbhai Dawoodbhai Memon (supra), held that there was complete exclusion of the jurisdiction of the High Court, under the TADA, to entertain a bail application made under Section 439 and that this view was reiterated in State of Punjab v. Kewal Singh, reported in MANU/SC/0493/1988 : 1990 Supp SCC 147. The Apex Court concluded, at para 14, in Salimbhai Abdulgaffar Shaikh (supra), thus:

14. That apart, if the argument of the 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 Code of Criminal Procedure 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.


51. We, therefore, in the light of the discussions held by this Court, in Redaul Hussain Khan and Ors. v. State of Assam and Ors. reported in MANU/GH/0759/2009 : 2009 (3) GLT 855, agree with the views expressed therein that once the investigation, under the scheme of the NIA Act, is taken over by the Agency, it is the Special Court, which can authorize further detention of an arrested accused. When such an arrested accused applies for bail to the Special Court, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code. Even a High Court cannot invoke its powers, under Section 439, to grant bail if it has been refused by the Special Court nor can the High Court, by resorting to its power under Section 439, cancel bail if bail has been granted to such an accused by the Special Court. If the bail has been refused or granted by the Special Court, the aggrieved party may, however, prefer an appeal, in terms of Section 21(4), to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned.

52. In the case of Redaul Hussain (supra), this Court has pointed out, on analyzing the scheme of the NIA Act, at Para 42, concluded as follows:

42. On a

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