ition Civil No 619 of 1987 Under Article 32 of the Constitution of India
Dr YS Chitale Brij Bhushan SK Dhingra Anil Kumar Gupta and BN Singhvi for the Petitioners
B Datta Additional Solicitor General PP Rao CM Nayyar and Girish Chandra for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The above petition was originally filed by two members of the Delhi Higher Judicial Service by name SShri RL Gupta and SM Aggarwal
Since the Court was of the view that the petition of Shri SM Aggarwal should be considered independently he was asked to file a separate petition
The present petition was therefore confined to Shri RL Gupta who is hereafter referred to as the petitioner 
Shri RL Gupta the petitioner joined the Judicial Service of Punjab on January 23 1962 and became a member of the Delhi Judicial Service on its initial constitution on August 2 197l
He was confirmed in the said service as a Sub Judge on August 6 1971
He was sent on deputation as the first District  Sessions Judge Sikkim at Gangtok on August 19 1976
While he was on such deputation he was promoted as Additional District  Sessions Judge in the Delhi Higher Judicial Service under rule 16 of the Delhi Higher Judicial Service Rules 1970
At the end of his period of deputation the petitioner came back to Delhi and joined as an Additional District  Sessions Judge
In June 1979 the petitioner was sent on deputation as Registrar Special Courts New Delhi and he remained on deputation until March
Between March 1980 and June 1981 the petitioner again worked as an Additional District  Sessions Judge Delhi
On 1461981 on the establishment of the Delhi Legal Aid and Advice Board the petitioner was sent on deputation as the first Member Secretary of that Board
When he was still working as the Member Secretary of the Delhi Legal Aid and Advice Board on April 26 1985 the Government of India appointed a Commission of Inquiry presided over by Shri Justice Ranganath Misra Judge Supreme Court of India under the provisions of section 3 of the for the purpose of making enquiries into a matter of public 262 importance namely the allegations in regard to the incidents of organised violence in Delhi following the assassination of Smt
Indira Gandhi the late Prime Minister of India
On May 27 1985 the Central Government addressed a letter to the Registrar of the Delhi High Court requesting the High Court to spare the services of the petitioner for being appointed as the Secretary of the Commission referred to above
The said letter reads thus CONFIDENTIALMOST IMMEDIATE DONOII
140132884 ISUSDV GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS North Block New Delhi 110001 27th May 1985
SK PACHAURI DIRECTOR IC II Dear Miss Mehra The Central Government vide Notification dated 2641985 has appointed a Commission of Inquiry under the Chairmanship of Shri Ranganath Misra a sitting Judge of the Supreme Court of India for the purposes of making an enquiry into the allegations in regard to the incidents of organised violence which took place in Delhi following the assassination of the former Prime Minister copy enclosed
One of the posts sanctioned for the functioning of this Commission is Secretary to the Commission in the scale of Rs 2500 2750
With the approval of Shri Justice Ranga Nath Misra it has been proposed to appoint Shri Ramesh war Lal Gupta Additional District and Sessions Judge and Member Secretary of the Delhi Legal Aid and Advice Board as Secretary of the Commission
The post of Secretary has been created from the date it is filled in and upto 26
101985 for the present but likely to continue
We shall be grateful if you could kindly spare the service of Shri Rameshwar Lal Gupta to act as Secretary of the Commission for the aforesaid period
This may be treated as Urgent
263 Regards Yours sincerely Sd Dr SK Pachauri Miss Usha Mehra Registrar Delhi High Court New Delhi
Encl As above On receipt of the said letter the petitioner was asked by the High Court whether he was willing to work as the Secretary of the Commission
The petitioner expressed his willingness to do so by his letter dated May 30 1985
On 31585 1685 the Registrar addressed a letter to the petitioner which reads thus Usha Mehra DO No 279Gaz
Dated31st May 1985 1685 Dear Shri RL Gupta In pursuance to the requisition of the Central Govt
contained in the Ministry of Home Affairs demi official letter No II 140132884 IS USDV dated 27th May 1985 and as desired by you and agreed to by the High Court you are hereby permitted to go on deputation as Secretary to the Commission of Inquiry headed by Hon ble Mr Justice Ranganath Misra a Judge of the Supreme Court of India with effect from 1st June 1985 at your own risk
Deputation will be upto 26th October 1985 or till the date of your recall whichever is earlier
Yours sincerely Sd USHA MEHRA 264 Shri RL Gupta Member Secretary Delhi Legal Aid  Advice Board New Delhi
 Accordingly the petitioner got himself relieved from the Delhi Legal Aid and Advice Board and joined as Secretary of the Commission of Inquiry
Within three months from the date on which the petitioner joined the Commission the Chief Justice of the Delhi High Court wrote a letter to Shri Justice Ranganath Misra stating that it had been decided by the High Court to place the petitioner on probation on the Delhi Higher Judicial Service as his turn had come for the same and therefore he might be relieved from his post of the Secretary of the Commission to enable him to report to the High Court as soon as possible but in any case not later than ten days from the receipt of the said communication
On receipt of the said letter Shri Justice Ranganath Misra wrote to the Chief Justice of the Delhi High Court stating that the petitioner had got himself acquainted with the working of the Commission and at that juncture it was difficult to relieve him in the public interest
Accordingly he was not relieved by the Commission to revert to the Judicial Service
The letter of Shri Justice Ranganath Misra was considered by the Full Court of the High Court at its meeting held on 221185 and the following resolution was passed Shri RL Gupta had been on deputation with Delhi Legal Aid  Advice Board
Vide this Court s demi official letter No 293GazVIEl0 dated 23884 and DO No 269GazVIEl0 dated 1851985 he was asked to revert back to his parent cadre for being considered to be placed on probation
Mr RL Gupta instead of reverting back went on second deputation as Secretary to RN Misra Commission of Enquiry at his own request and risk
Shri RL Gupta was asked vide this Court s endt
No 457 dated 26885 to come back to parent cadre within l0 days otherwise the next person shall be placed on probation
Mr RL Gupta refused to come back and got it intimated through Justice RN Misra vide demi official letter dated 19 885 that he had come on deputation at his own risk
Hence the case of Shri RL Gupta for being placed on probation was considered and as he has declined to be available to be placed on probation at his own risk the same has been rejected
Then the officers next to him were considered and the following officers were selected for 265 being placed on probation against regular vacancies 1
Shri Jaspal Singh 2
Shri SC Jain 3
Shri RK Sain 4
Shri Mohd Shamim 5
Shri PK Jain
 By the above resolution SShri Jaspal Singh SC Jain RK Sain Mohd Shamim and PK Jain were allowed to supersede the petitioner
During the period of his deputation as Secretary to the Commission of Inquiry twelve more officers were placed on probation by 2281986
Thus in all seventeen Judicial officers were allowed to supersede the petitioner
On the completion of the work of the Commission of Inquiry on October 31 1986 the petitioner was posted again as Additional District  Sessions Judge and was placed on probation for a period of two years with effect from April 4 1987
Aggrieved by the aforesaid supersession the petitioner filed the above petition before this Court questioning the validity of the supersession on several grounds some of them being common to the petitioner and Shri SM Aggarwal who had been impleaded as Petitioner No 2
Since the case of the petitioner can be disposed of on a short ground we do not propose to express our opinion on the grounds which are common to the petitioner SM Aggarwal and other Judicial officers working in the Delhi Higher Judicial Service
The contentions of the parties on those grounds are left open
The short question which arises for consideration in this case is whether the supersession of the petitioner made by the High Court by placing seventeen officers who were junior to him on probation before he was placed on probation is valid or not
While the petitioner s contention is that no officer who is sent on deputation can be made to suffer from any evil consequences and that on his return to his parent department he should be placed in the same position in seniority which he would have occupied had he not gone on deputation the submission made on behalf of the High Court is that the petitioner having gone on deputation at his own risk he could not be placed on probation as an Additional District  Sessions Judge till 441987 and he was bound to lose his seniority
It was further urged on behalf of the High Court that those Judicial officers who were junior to him in the seniority list but who had been placed on probation as Additional District and Sessions Judge before 44 1987 were entitled to be treated as his seniors
266 At the hearing of this case we asked the learned counsel appearing for both the parties to show whether there were any rules governing the deputation of an officer working in the judicial department
No such rules were produced before us
This case has therefore to be determined on the principles of justice equity and relevant judicial precedents
In the State of Mysore vs MH Bellary  the facts of the case were these
The respondent in that case MH Bellary was a Government servant in one of the departments of the Bombay Government
He was sent on deputation to another department and after serving there for a long period and getting a number of promotions he was reverted back to his parent department and ordered to be posted at a considerably lower grade while another Government servant who was below his rank had been promoted as Assistant Secretary
Thereupon the respondent therein filed a petition before the High Court of Mysore Karnataka under Article 226 of the Constitution of India challenging the order of his posting
There was a rule rule 50b in the Bombay Civil Services Rules which read as follows 50b
Services in another post other than a post carrying less pay referred to in clause a of rule 22 whether in a substantive or officiating capacity service on deputation and leave other than extra ordinary leave count for increments in the time scale applicable to the post on which the Government servant holds a lien as well as in time scale applicable to the post or posts if any on which he would hold a lien had his lien not been suspended Provided that Government may in any case in which they are satisfied that the leave was taken on account of illness or for any other cause beyond the Government servant s control direct that extra ordinary leave shall be counted for increment under this clause
 That rule referred to the right of the Government servant who goes on deputation to earn increments in the pay scale applicable to the post on which he held a lien on his return to the parent department from the department to which he had been deputed
One of the questions which arose for consideration in that case also was whether the respondent who had gone on deputation was entitled to claim the promotion which he would have got in his parent department had he 267 not been sent on deputation
The High Court accepted the case of the respondent therein who had filed the writ petition and granted him the relief sought by him
Aggrieved by the decision of the High Court the appellant State of Mysore filed an appeal before this Court
In that appeal this Court observed thus The other submission of learned counsel was that a Government servant though he had a right to increments in a time scale applicable to the post that he held on the date of his transfer on deputation and on which he had a lien had no legal right to be promoted to a higher post and that the construction adopted by the High Court virtually conceded or guaranteed to officers on deputation a right to an automatic promotion which they would not have had if they had not been posted on deputation
We see no force in this contention either
Learned Counsel is right only in so far as the promotion involved relates to a selection post
But where it is based on seniority cum merit those considerations are not relevant
The service of an officer on deputation in another department is treated by the rule as equivalent to service in the parent department and it is this equation between the services in the two departments that forms the basis of Rule 50b
So long therefore as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department it stands to reason that that satisfactory service and the manner of its discharge in the post he actually fills should be deemed to be rendered in the parent department also so as to entitle him to promotions which are often on seniority cum merit basis
What is indicated here is precisely what is termed in official language the next below rule  under which F an officer on deputation is given a paper promotion and shown as holding a higher post in the parent department if the officer next below him there is being promoted
If there are adverse remarks against him in the new department o punishments inflicted on him there different considerations would arise and these adverse remarks etc
would and could certainly be taken into account in the parent department also but that is not the position here
In view of the facts of the case it is not necessary to discuss this aspect in any detail or any further underlining by us 268 The above decision was followed by this Court in the State of Mysore and Another vs PN Nanjundiah and Another 3 SCC 633
In that case this Court observed thus So long as the service of the employee in the new department is satisfactory and he is obtaining the increments and promotions in that department it stands to reason that the satisfactory service and the manner of its discharge in the post he actually fills should be deemed to be rendered in the parent department also so as to entitle him to promotion which are open on seniority cum merit basis
 It is not disputed in this case that the petitioner would have been placed on probation as a matter of course on 22111985 if he had been serving as an Additional District and Sessions Judge and would have continued to be senior to Shri Jaspal Singh who was placed on probation on that date
In regard to the quality of the work rendered by the petitioner in the capacity of the Secretary to the Commission of Inquiry headed by Shri Justice Ranganath Misra we may quote the certificate issued by Shri Justice Ranganath Misra on 29111986
It reads thus Shri RL Gupta a Member of the Delhi Superior Judicial Service worked as the Secretary of the Commission of Inquiry set up under my Chairmanship to inquire into the atrocities in Delhi Kanpur and Bokaro following the assassination of the late Prime Minister Mrs Indira Gandhi
He worked in the Commission in that capacity from the beginning of June 1985 till October 1986
Shri Gupta handled his job with ability and efficiency
He impressed me as a brilliant judicial officer
I found him to be well versed in law
He exhibited character courage and sagacity
I was impressed by his sense of social vision legal acumen and capacity to comprehend human problems
 On his return to the Delhi Judicial Service from the Commission of Inquiry the High Court placed him on probation with effect from 441987
The question for consideration therefore is whether it is just and reasonable to deprive the petitioner of his seniority only because he was not working in the Delhi Higher Judicial Service dur 269 ing the period when his juniors were allowed to supersede him
We are not impressed by the submission made on behalf of the High Court that the petitioner having been informed by the High Court that he was going on deputation at his own risk he could not retain his seniority over his juniors who were placed on probation during the period of deputation
It is well known that many officers have to be sent on deputation in the public interest to other departments in order to meat the exigencies of public service and that before sending them on deputation their consent is invariably taken
Merely because they have given their consent to go on deputation they should not be allowed to suffer unless there is a specific rule to the contrary or other good reason for it
That is the ratio of the decision in State of Mysore vs MH Bellary supra and of the decision in State of Mysore and Anr
vs PN Nanjundiah supra
These decisions declare that an officer on deputation is entitled to get increments in the pay scale attached to the post in their parent department and also to get promotion when it is based on seniority cum merit as and when his junior in the parent department is promoted by the application of the next below rule 
When increments and promotion can be earned there is no reason why he should not be treated as being on probation also in the post held by him in the parent department even while he is on deputation
In this case the petitioner was not even sent on deputation to a department where his services could be absorbed permanently
He was sent on deputation as Secretary to a Commission which was asked to enquire into a certain matter of public importance which was to be over in a short time
The Commission itself was to become functus officio on the submission of its report
The Commission was presided over by a Judge of the Supreme Court of India and it was not possible for him to give up his post as Secretary of the Commission without the permission of the Chairman of the Commission and to return to the Delhi Judicial Service
He continued in the post of the Secretary to the Commission of Inquiry as the Chairman of the Commission found it difficult to relieve him in the midst of the inquiry
The object of placing an officer on probation is only to assess whether he is suitable for the post to which he is appointed
It is not necessary that such assessment should always be made by the appointing authority unless there is any legal impediment
Such assessment can also be made by the authority under whom the officer is required to work on deputation
In the instant case the authority under whom the petitioner was asked to work while on deputation was a Judge of the Supreme Court of India who had approved the service of the petitioner as can be seen from the certificate issued on 29111986 which is extracted above
It may also 270 be seen from the decision of this Court in OP Singla  Anr
vs Union of India  Ors
  that the High Court had placed some of the officers of the Delhi Higher Judicial Service on probation for the purpose of confirming them in the Delhi Higher Judicial Service while they were on deputation in other departments
Shri DC Aggarwal was placed on probation while he was working as a Member of the Sales Tax Tribunal Shri Mahesh Chandra was placed on probation while he was a Member of the Central Government Industrial Tribunal and Ms Santosh Duggal had been placed on probation during her tenure as Member Customs Excise and Gold Control Appellate Tribunal
It is stated that the High Court declined to place the petitioner on probation when he was working as the Secretary of the Commission on account of the observation made by Justice Mukharjee in OP Singla s case supra at page 396 of the Reports that such probations while the officers were on deputation were meaningless formalities
But the High Court overlooked that the same learned Judge had observed little lower down in the said judgment that an appointment on probation is not a jurisprudential sine qua non for absorption into the services though normally and generally various rules of different services make such provisions as rule 122 here
But as has been noted in the working out the practice of Delhi Judicial Service placement of promotees on probation has not been very strictly followed
The promotees cannot suffer for this Even though it had been stated that the petitioner was sent on deputation at his own risk to the Commission of Inquiry it would be unjust to hold that the High Court could have on the facts and circumstances of this case passed orders which would have the effect of superseding the petitioner
We also fail to appreciate the implication of the observation made in the course of the resolution of the High Court that the petitioner had refused to come back and got it intimated through Justice RN Misra vide demi official letter dated 19885 that he had come on deputation at his own risk  It was not truly a case of refusal on the part of the petitioner to go back to the Delhi Higher Judicial Service nor can it be said that he was responsible for what Shri Justice RN Misra had written
Shri Justice RN Misra found it difficult to relieve the petitioner in the midst of the inquiry for obvious reasons and that could not be used against the petitioner for depriving him of his seniority
The stand taken by the High Court in this case cannot therefore be upheld
We may however state at this stage that Shri P Dutta Additional Solicitor General of India appearing on behalf of the Union of India has very fairly supported the case of the petitioner
At this stage we have to observe that no innocent officer should 271 be exposed to the grave risk to which the petitioner has been exposed in this case
In the instant case the petitioner was promoted as an Additional District and Sessions Judge under rule 16 of the Delhi Higher Judicial Service Rules in 1976
The post to which he was promoted was called a temporary post although truly it was not a temporary post
Neither the High Court nor the Delhi Administration ever believed that the post to which the petitioner was promoted would ever cease to exist
There was no chance of its abolition at all
Yet it was called a temporary because it was in excess of the strength of the posts in the Delhi Higher Judicial Service which had been fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970
If the Schedule had been amended from time to time by increasing the number of posts keeping pace with the reality of the situation perhaps the strength should have been increased to 50 by now
Rule 122 of the said Rules states that all candidates other than those appointed at the initial constitution of the Service on appointment to the Service shall be on probation for a period of two years
In the circumstances by appointing the Judicial officers of the Higher Judicial Service to temporary posts instead of appointing them to permanent posts the Delhi Administration has virtually made a mockery of the rules of recruitment
To place a Judicial officer promoted to the Higher Judicial Service on probation nearly 9 years after his promotion as in this case is a mere farce
Ordinarily an officer should be on probation from the date of his appointment and if he is found unsuitable within the period of probation he should be weeded out of service
We are told that the reason for not placing a judicial officer on probation on his appointment is that the strength of the cadre is fixed at 16
Is it just and reasonable to place an officer on probation nearly 9 years after his appointment and then turn him out of service if his services are found to be not satisfactory during the period of probation which would fall in the 10th and 11th year of his service in that cadre The Administrators should know that the work in courts has increased by two or three times in almost every court during the last decade
The population has increased by 20 crores during this period
Laws have multiplied transactions have increased and people are becoming more and more conscious of their rights
But the number of Judges has remained constant
This has led to frustration amongst litigants lawyers and Judges
This frustration gives rise to different kinds of tensions including the tension which is now prevailing in the city of Delhi
We are told that the Delhi High Court has been pressing for the appointment of more number of Judges
The High Court 272 addressed a letter to the Delhi Administration requesting it to sanction 169 additional posts in the Delhi Judicial Service on 1611983
The Delhi Administration sought some clarifications
In reply the High Court has again by its letter dated 7th 11th January 1988 urged for the sanctioning of 169 posts
This letter shows that as on 191987 in the courts manned by the officers of the Delhi Judicial Service who on promotion will be members of the Delhi Higher Judicial Service there were 51173 Regular Suits 1210 Small Cause Suits 974 Civil Appeals 10592 Rent cases pending before courts dealing with such cases
There were 97943 cases pending before the courts of Chief and Additional Chief Metropolitan Magistrates and 235033 cases pending before other Magistrates as on 191987
The Delhi Administration appears to have not taken any serious notice of the appalling situation prevailing in the Delhi courts
The Administrators should not look at the recommendation as one which is intended to provide some jobs to lawyers
They should look at the recommendation of the High Court as one intended to give relief to the suffering litigants who waste their valuable time near courts for years waiting for justice
This is a problem which should be solved on a war footing
The Delhi Administration should straightaway increase the strength of the Delhi Judicial Service at least by 150 increase the number of posts in the Delhi Higher Judicial Service at least by 40 establish court premises in different parts of the Union Territory of Delhi and see that the pending cases which are in the order of lakhs many of which are lingering for the last ten years and more are disposed of within two years
If the total strength is increased at all levels this farce of placing the Judicial officers on probation after nearly ten years will also end
We must also observe that the Government should not consider finance as a constraint because by not appointing sufficient number of Judges the Government is suffering more financially
The Government itself being a big litigant is subjected to several orders of stay prohibitory orders injunctions etc
leading to delay in completion of several projects and works
The indirect effects of frustration amongst the people lead to a greater financial drain
We may add here that if by any chance the arrears of cases come down then the vacancies in judicial posts may not be filled up
The expenditure on judicial department will thus automatically come down
We hope that the Union of India and Delhi Administration will sanction at least 150 more posts in the Delhi Judicial Service and about 40 posts in the Delhi Higher Judicial Service and also take immediate steps to establish additional courts
We also suggest that the expenditure on judicial administration should not be subjected to the constraints of non plan expenditure
The judicial department is not an unproductive department
Peace and tran 273 quility that will result from quick disposal of cases is much more valuable than the economic goods produced by factories
Delay in disposal of cases affects the gross national product adversely
In fact peace and tranquility will help in greater production of economic goods
Quick disposal of cases will also save millions of man hours which are now being wasted near the courts in India
There must be a change of attitude on the part of the Governments and the administrators at the secretariats
It is imperative that every State should increase the strength of Judicial officers at least by thirty per cent immediately
Otherwise there would be a catastrophe in about a year or two
It is hoped that this warning will not go unheeded
We are of the view that the petitioner in this case should have been placed on probation on 22111985 even though he was on deputation on that date and on his confirmation he is entitled to maintain his seniority above Shri Jaspal Singh
We therefore direct that the petitioner shall be deemed to have been on probation from 2211985 and his services shall be regulated accordingly
The petitioner shall also be deemed to be above Shri Jaspal Singh in the seniority list of officers in the Delhi Higher Judicial Service
In making this order as already stated we have not considered the other contentions raised in the petition including the contention that the petitioner should be deemed to have been on probation from the date of his promotion to the cadre of Additional District Judge or any other date prior to 22111985
All those contentions are left open
The Writ Petition is allowed accordingly
There is no order as to costs
SL Petition allowed


Summary:
 This Criminal Appeal against the judgment and order of the Gujarat High Court and the connected Special Leave Petitions against the orders of the various Designated Courts in the State constituted under the Terrorist  Disruptive Activities Prevention Act 1987 raised common questions for consideration
It was enough to set out the facts in the appeal
There was an armed clash involving the appellants as a result whereof the police apprehended the appellants and produced them before the Designated Court
The appellants moved an application for bail which was rejected by the Designated Court
The appellants moved the High Court under section 439 read with section 482 of the Code
The High Court rejected the bail application on the ground that it had no jurisdiction to entertain such an application under section 439 of the Code or by recourse to its inherent powers under section 482
Aggrieved by the decision of the High Court the appellants appealed to this Court for relief by special leave
On the view the Court took as to the nature of the function of the Designated Courts in dealing with the bail applications within the constraints of section 208 it was not necessary to deal with the facts of the connected special leave petitions directed against the orders of the different Designated Courts rejecting the bail applications
Allowing the appeal and the special leave petitions partly the Court  HELD These cases mainly raised two questions of substantial 226 importance
The first was as to the jurisdiction and powers of the High Court to grant bail under section 439 of the Code of Criminal Procedure 1973 or by recourse to its inherent powers under section 482 to a person held in custody for an offence under sections 3 and 4 of the Terrorist  Disruptive Activities Prevention Act 1987 and secondly as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such a person in view of the limitations placed on such power under section 208 of the Act
246G H The Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482
Under the scheme of the Act there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person for an offence punishable under the Act or any rule made thereunder
There is contrariety between the provisions of the Act and the Code
Under the Code the High Court is invested with the various functions and duties in relation to any judgment or order passed by a criminal court subordinate to it
The Act creates a new class of offences called terrorist acts and disruptive activities and provides for a special procedure for the trial of such offences
The jurisdiction and power of a Designated Court are derived from the Act and it is the Act that must primarily be looked to in deciding the question before the Court
Where an enactment provides for a special procedure for the trial of certain offences it is that procedure that must be followed and not the one prescribed by the Code
239B C 240AD No doubt the legislature has by the use of the words as if it were  in section 143 of the Act vested a Designated Court with the status of a Court of Session but the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act ie such trial must be in accordance with the procedure prescribed under the Code for the trial before a Court of Session in so far as applicable
240D F Though there is no express provision excluding the applicability of section 439 of the Code similar to the one contained in section 207 of the Act in relation to a case involving the arrest of any person for an offence punishable under the Act or any rule thereunder yet that result must by necessary implication follow
The source of power of a Designated Court to grant bail is not section 208 of the Act as it only places limitations on such power but it does not necessarily follow that the power of a Designated Court to grant bail is relatable to section 439 of the Code
The 227 Designated Court is a court other than the High Court or the Court of Session  within the meaning of section 437 of the Code
The exercise of the power to grant bail by a Designated Court is not only subject to the limitations placed by section 209 which in terms provides that the limitations on grant of bail specified in section 208 are in addition to the limitations under the Code or any other law for the time being in force on the grant of bail
It therefore follows that the power derived by a Designated Court to grant bail to a person for an offence under the Act is derived from the Code and not section 208 of the Act
The controversy as to the power of the High Court to grant bail under section 439 of the Code must also turn on the construction of section 208 of the Act
241B E In view of the explicit bar in section 192 there is exclusion of the jurisdiction of the High Court
It interdicts that no appeal or revision shall lie to any court including the High Court against any judgment sentence or order not being an inter locutory order of a Designated Court
While it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail still the source of power is not section 439 of the Code but section 437 being a court other than the High Court or the Court of Session
Any other view would lead to an anomalous situation
If it were to be held that the power of a Designated Court to grant bail was relatable to section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail
The power to grant bail under section 439 is unfettered by any conditions and limitations like section 437
It would run counter to the express prohibition contained in section 208 of the Act
The Court upheld the view of the High Court that it had no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code
243G H 244A BD As regards the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under section 208 the sub section in terms places fetters on the power of a Designated Court on the grant of bail and limitations specified therein are in addition to the limitations under the Code
In view of these more stringent conditions a Designated Court should carefully examine every case before it for finding out whether the provisions of the Act apply or not
A prayer for bail ought not to be rejected in a mechanical manner
244E G The Designated Courts had not in these cases carefully considered the facts and circumstances and had rejected the bail applications mechanically
In the criminal appeal the facts were already set out
In 228 the special leave petitions Nos
2369 and 2469 of 1967 the prosecution had been started at the instance of the management of a textile mill
The other cases had arisen out of communal riots
Normally such cases have to be dealt with under the ordinary procedure prescribed by the Code unless offences under sections 3 and 4 of the Act are made out
The Designated Courts are under a duty to examine the circumstances closely from this angle
That had not been done
It was therefore desirable to set aside the orders passed by the various Designated Courts and remit the cases for fresh consideration
246D F The appeal and the special leave petitions partly succeeded
While upholding the judgment and order of the High Court dismissing the applications for bail under section 439 of the Code of Criminal Procedure 1973 the Court granted leave and set aside the impugned orders passed by the various Designated Courts in the State dismissing the applications for bail and directed them to consider each particular case on merits as to whether it fell within the purview of section 3 andor section 4 of the Act and if so whether the accused in the facts and circumstances of the case were entitled to bail while keeping in view the limitations on their powers under section 208 of the Act
Where the Designated Courts find that the acts alleged in the police report or complaint of facts under section 141 do not fall within the purview of section 3 andor section 4 of the Act they shall in exercise of the powers under section 10 of the Act transfer the cases for trial to the ordinary criminal courts
The accused persons enlarged on bail by this Court should continue to remain on bail until their applications for bail were dealt with by the Designated Courts with advertence to the observations made above
246F H 247A B In Re the Special Courts Bill 1978 1979 2 SCR 476 Balchand Jain vs State of Madhya Pradesh   Ishwar Chand vs State of Himachal Pradesh ILR 1975 HP 569 and VC Shukla vs State through CBI  referred to