N Criminal Appeal No 3 13 of 1987 etc
From the Judgment and order dated 1261987 of the Gujarat High Court in Misc
Appln
No 680 of 1987 PS Poti GA Shah Shankar Ghosh MN Shroff Vimal Dave MR Barot EC Agarwala Vijay Pandit Ms P Bhatt Shakil Ahmad Syed NM Ghatate SV Deshpande BR Dutta Mrs H Wahi SS Khanduja SR Srivastava Mrs R Gupta KK Gupta 229 AS Bhasma and AM Khanwilkarfor the appearing parties
The Judgment of the Court was delivered by SENJ
This appeal by special leave petition are directed against the judgment and order of the Gujarat High Court dated May 12 1987 and the orders passed by various Designated Court in the State constituted under section 91 of the Terrorist  Disruptive activities prevention Act 1987 mainly raise two questions of substantial importance
First of these is as to the jurisdiction and power of the High Court to grant bail under section 439 of the Code of Criminal Procedure 1973 or by resource to its inherent powers under section 482 to a person held in custody accused of an offence under sections 3 and 4 of the Act and secondly as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such person in view of the limitations placed on such power under section 208 of the Act
By the judgment under appeal the High Court has held that under the Act there is total exclusion of the jurisdiction of the High Courts and therefore it cannot entertain an application for grant of bail under section 439 of the Code
In other cases the persons under detention have applied for grant of special leave under article 136 of the Constitution against the orders passed by various Designated Courts in the State refusing to grant bail on the ground that the power of a Designated Court to grant bail is circumscribed by the limitations prescribed by section 208 of the Act ie due to the non fulfilment of the conditions laid down therein
As to the facts
It is enough for our purposes to set out the facts giving rise to Civil Appeal No 313 of 1987
The prosecution case in brief is as follows
On the morning of March 10 1987 there was an armed clash between the appellants who are members of a cooperative housing society and the two sons of the original vendor Babubhai Kansara  Mohamed Ramzan Alabux and their companions over possession of the disputed plot admeasuring 16000 square yards resulting in multiple injuries to members of both the groups
The appellants as such members were in possession of the said plot and as law abiding citizens had instituted Civil Suit No 108 of 1987 in the Court of the Civil Judge Junior Division Narol applied for and obtained temporary injunction and had gone with the bailiff to have the injunction order served on the opposite party
Their case is that they had entered into an agreement dated August 11 1979 with the original vendor 230 Babubhai Kansara for the purchase of the disputed plot
The price fixed was Rs 35 per square yard and Rs 60000 were paid as earnest money
They as such members of the society had also paid from time to time by instalments a total amount of Rs350000 which was equivalent to 30 of the total sale consideration and had been placed in possession of the land by the vendor by a deed acknowledging the receipt of money and mentioning the delivery of possession
After the death of the vendor his two sons Karam Ali and Iqbal Ali disowned the transaction and started creating obstructions in the enjoyment of the land by the society as a result of which on March 9 1987 the society was constrained to institute the aforesaid suit and obtained a temporary injunction and also a direction from the learned Civil Judge ordering the Chief Bailiff to execute the injunction order on the two sons of the original vendor
They had also intimated the police about the grant of injunction and sought help to prevent breach of peace but the police took no action despite the endorsement made by the Inspector of Police on their application directing PSI Satellite Station to take appropriate action and prevent any untoward incident
As apprehended the two sons of the original vendor Karam Ali and Iqbal Ali put up armed resistance and in the scuffle both sides sustained injuries
At the time of the incident the police arrived at the spot and apprehended the appellants The appellants were straightaway produced before the Designated Court within a period of 24 hours after their arrest without receiving the complaint of facts which constitute offences alleged to have been committed or a police report as required under section 141
The appellants moved an application for bail but the Designated Court by its order dated March 24 1987 rejected the same holding that there were no reasonable grounds for it to believe that the appellants were not guilty of an offence under section 3 of the Act apart from various other offences under the Indian Penal Code 1860
We are informed that the police have now filed a charge sheet against the appellants before the Designated Court for having committed offences punishable under sections 143 147 148 149 307 504 324 323 and 120B of the Indian Penal Code section 27 of the Arms Act and sections 3 and 4 of the Act
It would thus be seen that the police invoked the Act as against the appellants although they had taken recourse to their legal remedy by filing a suit and obtained a temporary injunction and accompanied the bailiff to execute the order
They were apprehended and as many as eight of them sustained injuries
Assuming there was a scuffle wherein there was a free fight the appellants being the owners in possession were entitled to act in self defence
As against the two 231 sons of the original vendor both of whom are cited as prosecution witnesses the police have filed a charge sheet for the self same offences except for the offences under sections 3 and 4 of the Act in the Court of the Chief Judicial Magistrate Narol as a result of which they are liable to be enlarged on bail while the appellants cannot be due to the constraints on the powers of the Designated Courts to grant bail under section 208 of the Act
The Designated Court having refused to grant bail to the appellants they moved the High Court by way of an application under section 439 read with section 482 of the Code
The High Court by its order dated June 12 1987 rejected the bail application on the ground that the High Court had no jurisdiction to entertain any such application under section 439 of the Code ar by recourse to its inherent powers under section 482
The decision of the High Court proceeds on the ground that the Act being a special Act and the Designated Court constituted by the State Government under section 91 to try the offences under the Act was not a Court subordinate to the High Court and further that in view of the provision contained in sub section
1 of section 19 of the Act which provided that an appeal as a matter of right shall lie against any judgment or order of the Designated Court not being an interlocutory order to the Supreme Court and in view of the explicit bar contained in sub section
2 thereof which provided that no appeal or revision shall lie before any Court ie including the High Court there was exclusion of jurisdiction of the High Court in regard to the proceedings before a Designated Court
Hence this appeal by special leave
Facts in the connected special leave petitions which are all directed against the orders passed by different Designated Courts rejecting the applications for bail are apt to differ from case to case
On the view that we take as to the nature of the function of the Designated Courts in dealing with applications for bail within the constraints of section 208 it is not necessary to deal with the facts of these cases in any detail
Broadly speaking the cases fall into three distinct categories namely 1 Cases of communal riots resulting in offences of murder arson looting etc
where there are overt acts on the part of persons of one community against the other
2 Incidents giving rise to acts of physical violence resulting in communal riots due to instigation
3 Cases connected with trade union activities started at the instance of the management or at the instance of owners of property to settle private disputes on the allegations that there were acts of physical violence
The statutory provisions bearing on the questions involved may be set out
Sub section
1 of section 3 of the Act which gives a meaning to the 232 expression terrorist act  is in the following terms 3
1 Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances whether biological or otherwise of a hazardous nature in such a manner as to cause or as is likely to cause death of or injuries to any person or persons or loss of or damage to or destruction of property or disruption of any supplies or services essential to the life of the community or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act commits a terrorist act
 Sub section
2 thereof reads 2 Whoever commits a terrorist act shall i if such act has resulted in the death of any person be punishable with death or imprisonment for life and shall also be liable to fine ii in any other case be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine
 Sub section
1 of section 4 provides for punishment for disruptive activities and reads 41 Whoever commits or conspires or attempts to commit or abets advocates advises or knowingly facilitates the commission of any disruptive activity or any act preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine
 233 Sub section
2 thereof gives a meaning to the expression disruptive A activity  and it is as follows 2 For the purposes of sub section 1 disruptive activity means any action taken whether by act or by speech or through any other media or in any other manner whatsoever i which questions disrupts or is intended to disrupt whether directly or indirectly the sovereignty and territorial integrity of India or ii which is intended to bring about or supports any claim whether directly or indirectly for the cession of any part of India or the secession of any part of India from the Union
Explanation For the purposes of this sub section a cession includes the admission of any claim of any foreign country to any part of India and b secession includes the assertion of any claim to determine whether a part of India will remain within the Union
 Sec
19 ousts the jurisdiction of the High Court altogether and reads 191 Notwithstanding anything contained in the Code an appeal shall lie as a matter of right from any judgment sentence or order not being an interlocutory order of a Designated Court to the Supreme Court both on facts and on law
2 Except as aforesaid no appeal or revision shall lie to any court from any judgment sentence or order including an interlocutory order of a Designated Court
 Sub section
8 of section 20 of the Act which has an important bearing on these cases is in these terms 8 Notwithstanding anything contained in the Code no 234 person accused of an offence punishable under this Act or any rule made thereunder shall if in custody be released on bail or on his own bond unless a the Public Prosecutor has been given an opportunity to oppose the application for such release and b where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail Sub section
9 thereof provides that the limitations on granting of bail specified in sub section
8 are in addition to the limitations under the Code or any other law for the time being in force on granting of bail
In support of the appeal and the connected special leave petitions learned counsel for the appellants and the petitioners put forth the following submissions namely 1 Part III of the Act is supplemental  to the Code and the Code still applies except to the extent that it stands modified by the provisions of the Act and particularly those contained in Part IV
2 While section 111 creates a special tribunal for trial of offences under section 3 or section 4 of the Act viz the Designated Courts constituted by the Central or the State Government under section 91 the various sub sections of section 14 provide that the procedure and powers of such Designated Courts shall be as specified therein
Particular emphasis is laid upon the provision contained in sub section
3 thereof which reads  143 
Subject to the other provisions of this Act a Designated Court shall for the purpose of trial of any offence have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session   3The source of power  of a Designated Court to grant bail is not section 208 of the Act but section 439 of the Code and that section 209 only places limitations on such power
This is made explicit by section 209 which provides that the limitations on the granting of bail specified in sub section
8 are in addition to the limitations under the Code or any other law for the time being in force 
4 Though the legislature has made an 235 express provision in section 207 of the Act which provides that nothing in s438 of the Code which deals with the power of the High Court or the Court of Session to grant anticipatory bail shall apply in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder there is no like provision making section 439 of the Code dealing with the power of the High Court or the Court of Sessions to grant bail
A fortiori Chapter XXXIII of the Code is still preserved as otherwise the Designated Courts would have no power to grant bail
As regards the jurisdiction and power of the High Court to grant bail under section 439 of the Code or by recourse to its inherent powers under section 482 the contention on behalf of the appellants and the petitioners is that Chapter XXXIII of the Code being applicable the source of power of a Designated Court to grant bail being section 439 the necessary concomitant is that the jurisdiction and power of the High Court to entertain an application for bail on its own under section 439 or by recourse to its inherent powers under section 482 is applicable
The argument is that it is impermissible for the legislature to set up a new hierarchy of Courts different from the one envisaged by the Constitution and byepass the High Court
Under the Constitution the High Court is the repository of all judicial authority within the State
To take away the power of the High Court would be tantamount to strike at the very foundation of an independent judiciary free from executive control
It is pointed out that section 204 of the Act makes section 167 of the Code applicable in relation to a case involving an offence punishable under the Act subject to the modifications specified therein
a thereof provides that reference in sub section
1 of section 167 to Judicial Magistrate  shall be construed as reference to Judicial Magistrate or Executive Magistrate or Special Executive Magistrate  while cl
b provides that references in sub section
2 of that section to fifteen days  ninety days  and sixty days  wherever they occur shall be construed as references to sixty days  one year  and one year  respectively
The effect of the amendment to section 167 by section 204 is to invest the Executive Magistrates who are not subject to the control of the High Court with an unlimited power to grant police remand or remand to judicial custody without the filing of a challan for indefinite duration from time to time upto a period of one year
It is said that the affect of this virtually means detention without trial
The learned counsel accordingly characterised the Act as a piece of draconian legislation  which makes serious in roads into the rights of the citizens to life and liberty guaranteed under article 21 of the Constitution without the constitutional safeguards enshrined in article 22
However it was expressly stated 236 before us that the constitutionality of the Act is not under challenge in these cases and that this question is under the consideration of a larger bench of this Court in another case Our attention was particularly drawn to the view expressed by Chandrachud CJ in delivering the majority opinion in the Presidential reference in Re the Special Courts Bill 1978 where the Court upheld the Special Courts Bill mainly because of the provision for appointment of a sitting High Court Judge as a Judge of the Special Court as a sufficient safeguard against Executive interference
The learned Chief Justice in the course of his judgment observed It is of the greatest importance that in the name of fair and unpolluted justice the procedure for appointing a Judge of the Special Court should inspire the confidence not only of the accused but of the entire community
Administration of justice has a social dimension and the society at large has a stake in impartial and even handed justice
 It is pointed out that the Act though patterned on the lines of the instead leaves it to the discretion of the Central Government or a State Government as the case may be to appoint a person of their choice to be a Judge of the Designated Court
It is further pointed out that the State Government has under section 94 of the Act appointed retired District Judges to be Judges of some of the Designated Courts in the State constituted under section 91
It is apprehended that a retired District Judge would be completely at the mercy of the Executive
Essentially the submission is that the creation of a Designated Court which is not subject to the control and superintendence of the High Court is detrimental to the constitutional concept of judicial independence
It is apprehended that the entrustment of the power to the Executive Magistrates to grant police remand extending over one year by amendment of sub section
1 of section 167 of the Code was capable of misuse
Our attention was also drawn to the various provisions of the Act which take away the various safeguards provided to an accused as provided in the Code as well as section 25 of the Evidence Act which according to the learned counsel offend against article 21 of the Constitution
See sections 112 142 145 151 161 2 and 3 and 212
It is said that the procedure contemplated by article 21 must be right and just and fair and not arbitrary fanciful or oppressive
Otherwise it would not be procedure at all and the requirements of article 21 would not be satisfied
We do not think it necessary to go into these aspects for the constitutionality of the Terrorist  Disruptive Activities Prevention Acts 1985 and 1987 and their provisions is not a question before us
We feel that these questions should best be left open to be dealt with by the Constitution Bench 237 At the very outset Shri Poti learned counsel appearing for the State Government with his usual fairness unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under article 226 or article 227 or move this Court by a petition under article 32 for the grant of an appropriate writ direction or order
It must necessarily follow that a citizen can always move the High Court under article 226 or article 227 or this Court under article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against articles 14 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under section 91 of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid
As to the merits the submissions advanced by learned counsel for the State Government proceeded more or less on these lines
Where an enactment provides for a complete procedure for the trial of certain offences it is that procedure that must be followed and not the one prescribed by the Code
Under section 141 the Designated Court has exclusive jurisdiction for the trial of such offences and by virtue of section 121 the Designated Court may also try any other offence with which the accused may under the Code be charged at the same trial if the offence is connected with such other offence
Where there is a special enactment on a specific subject as the Act in question which is a special law the Act as a special Act must be taken to govern the subject and not the Code in the absence of a provision to the contrary
The legislature by the use of the words as if it were  in section 143 endowed a Designated Court with the status of a Court of Session but the legal fiction must be restricted to procedure alone that is to say the procedure for the trial of an offence must be in accordance with the procedure prescribed under the Code for trial before a Court of Session insofar as applicable
But some meaning must be given to the opening words of section 143 Subject to the other provisions of the Act 
Where an enactment provides for a complete procedure for the trial of an offence it is that procedure that must be followed and not the one prescribed by the Code
Our attention was drawn to section 41 of the Code which provides that all offences under the Indian Penal Code 1860 shall be investigated inquired into tried and otherwise dealt with according to the provisions contained therein ie in accordance with the procedure prescribed under the Code
Sub section
2 thereof however engrafts an 238 exception to the general rule as to the procedure to be followed for the A trial of offences under any other laws and it reads 42
All offences under any other laws shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or other vise dealing with such offences
In support of the contention that the procedure to be followed is the special procedure laid down by the Act reliance is placed on section S of the Code which is in these terms 5
Nothing contained in this Code shall in the absence of a specific provision to the contrary affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force
 It is submitted that 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 any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder but that result must by necessary implication follow
According to the learned counsel the source of power of a Designated Court to grant bail is not section 439 of the Code but section 437 which speaks of a Court other than a High Court or a Court of Session  and it insofar as material reads as follows 4371
When bail may be taken in case of non bailable offence 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 Session he may be released on bail   Emphasis supplied Before dealing with the contentions advanced it is well to remember that the legislation is limited in its scope and effect
The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law
The intendment is to pro 239 vide special machinery to combat the growing menace of terrorism in different parts of the country
Since however the Act is a drastic measure it should not ordinarily be resorted to unless the Government s law enforcing machinery fails
As a matter of construction we must accept the contention advanced by learned counsel appearing for the State Government that 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 on an accusation of having committed an offence punishable under the Act or any rule made thereunder
There is contrariety between the provisions of the Act and those contained in the Code
Under the Code the High Court is invested with various functions and duties in relation to any judgment or order passed by criminal court subordinate to it
Those powers may be briefly enumerated namely the jurisdiction and power to hear an appeal under section 374 against any judgment or sentence passed by the Court of Session the power to hear an appeal against an order of acquittal by a criminal court including the Court of Session under section 378 the power to hear a reference as to the validity of
any Act ordinance or regulation or any provision contained therein made by a criminal court under section 395 the confirmation of a death sentence on a reference by a Court of Session under sections 366 371 and section 392 the power to grant bail under section 439 subject to certain limitations the inherent power under section 482 to make such orders as may be necessary or to prevent abuse of the process of the Court or otherwise to secure the ends of justice
Undoubtedly the High Court has the jurisdiction and power to pass such orders as the ends of justice require in relation to proceedings before all criminal courts subordinate to it
The legislature by enacting the law has treated terrorism as special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences
A grievance was made before us that the State Government by notification issued under section 91 of the Act has appointed District  Sessions Judges as well as Additional District  Sessions Judges to be Judges of such Designated Courts in the State
The use of ordinary courts does not necessarily imply the use of standard procedures
Just as the legislature can create a special court to deal with a special problem it can also create new 240 procedures within the existing system
Parliament in its wisdom has adopted the frame work of the Code but the Code is not applicable
The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in sections 31 and 42 and provides for a special procedure for the trial of such offences
Under section 91 the Central Government or a State Government may by notification published in the official Gazette constitute one or more Designated Courts for the trial of offences under the Act for such area or areas or for such case or class or group of cases as may be specified in the notification
The jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us
Under section 141 a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of section 121 it may also try any other offence with which the accused may under the Code be charged at the same trial if the offence is connected with such other offence
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
No doubt the legislature 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 as contended for by learned counsel for the State Government 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 insofar as applicable
We must give some meaning to the opening words of section 143 Subject to the other provisions of the Act  and adopt a construction in furtherance of the object and purpose of the Act
The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act
No other construction is possible
The expression High Court  is defined in section 21e but there are no functions and duties vested in the High Court
The only mention of the High Court is in section 206 which provides that sections 366 371 and section 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court subject to the modifications that the references to Court of Session  and High Court  shall be construed as references to Designated Court  and Supreme Court  respectively
191 of the Act provides for a direct appeal as of right to the Supreme Court from any judgment or order of the Designated Court not being an interlocutory order
There is thus a total departure from different classes of Criminal 241 Courts enumerated in section 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court not being an interlocutory order and substituting the Supreme Court for the High Court by section 206 in the matter of confirmation of a death sentence passed by a Designated Court
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 on an accusation of having committed an offence punishable under the Act or any rule made thereunder but that result must by necessary implication follow
It is true that 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
This is made explicit by section 209 which enacts that the limitations on granting 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 
But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to section 439 of the Code
It cannot be
doubted that a 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 contained therein but is also subject to the limitations placed by 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
It commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act if in custody unless two conditions are satisfied
The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail
If either of these two conditions is not satisfied the ban operates and the person under detention cannot be released on bail
It is quite obvious that the source of power of a Designated Court to grant bail is not section 208 of the Act but it only places limitations on such powers
This is implicit by section 209 which in terms provides that the limitations on granting of bail specified in sub section
8 are in addition to the limitations under the Code or any other law for the time being in force on granting of bail
It there 242 fore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act if in custody is derived from the Code and not from section 208 of the Act
In Balchand Jain vs State of Madhya Pradesh  while interpreting a similar provision contained in r 184 of the Defence and Internal Security of India Rules 1971 Bhagwati J speaking for a three Judge Bench observed The Rule on its plain terms does not confer any power on the Court to release a person accused or convicted of contravention of any Rule or order made under the Rules on bail
It postulates the existence of power in the Court under the Code of Criminal Procedure and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any Rule or order made under the Rules if in custody shall not be released on bail unless the aforesaid two conditions are satisfied
It imposed fetters on the exercise of the power of granting bail in certain kinds of cases and removes such fetters on fulfilment of the aforesaid two conditions
When these two conditions are satisfied the fetters are removed and the power of granting bail possessed by the Court under the Code of Criminal Procedure revives and becomes exercisable
The non obstante clause at the commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions
It is not possible to read Rule 184 as laying down a self contained code for grant of bail in case of a person accused or convicted of contravention of any Rule or order made under the Rule so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure
Rule 184 cannot be construed as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules
These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they are by reason of the non obstante clause overridden by rule 184
 243 The learned Judge placing emphasis on the words if in custody  in r 184 further observed It is an application for release of a person in custody that is contemplated by Rule 184 and not an application for grant of anticipatory bail  by a person apprehending arrest
Section 438 and Rule 184 thus operate at different stages one prior to arrest and the other after arrest and there is no overlapping between two provisions so as to give rise to a conflict between them
And consequently it must follow as a necessary corollary that Rule 184 does not stand in the way of a Court of Session or a High Court granting anticipatory bail  under section 438 to a person apprehending arrest on an accusation of having committed contravention of any Rule or order made under the Defence and Internal Security of India Rules 1971
 Upon that view the Court in Balchand Jain s case held that r 184 of the Defence and Internal Security of India Rules 1971 does not take away the power conferred on a Court of Session or a High Court under section 438 of the Code to grant anticipatory bail
We have been referred to the decision of RS Pathak CJ speaking for a Division Bench of the Himachal Pradesh High Court in Ishwar Chand vs State of Himachal Pradesh ILR 1975 HP 569 holding that r 184 did not affect the jurisdiction and power of the High Court under sections 438 and 439 of the Code which were independent of the power of the special tribunal to try an offence for contravention of an order made under section 3 of the Defence  Internal Security of India Act 1971
Both these decisions are clearly distinguishable
The view expressed in Balchand Jain s case is not applicable at all for more than one reason
There was nothing in the Defence  Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether
On the contrary section 122 of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases
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 interlocutory order of a Designated Court
The Act by section 161 confers the right of appeal both on facts as well as on law to the Supreme Court
Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Courts 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 244 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 on such terms as they deem fit
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 which enjoins that notwithstanding anything in the Code no person accused of an offence punishable under the Act or any rule made thereunder shall if in custody be released on bail unless the conditions set forth in clauses a and b are satisfied
Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence  Internal Security of India Act 1971
They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary Courts is not to be readily inferred except by express provision or by necessary implication
It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under sections 438 and 439 exists
We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code
That takes us to 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 granting of bail and the limitations specified therein are in addition to the limitations under the Code
Under section 208 no person accused of an offence punishable under the Act or any rule made thereunder shall if in custody be released on bail or on his own bond unless the two conditions specified in cls
a and b are satisfied
In view of these more stringent conditions a Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not
Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail the allegations of fact the police report along with the statements in the case diary and other available materials should be closely examined
A prayer for bail ought not to be rejected in a mechanical manner
At the conclusion of the hearing on the legal aspect Shri Poti learned counsel appearing for the State Governrment contended on 245 instructions that an order passed by a Designated Court for grant or refusal of bail is not an interlocutory order  within the meaning of section 191 of the Act and therefore an appeal lies
We have considerable doubt and difficulty about the correctness of the proposition
The expression interlocutory order  has been used in section 191 in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature
The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council Federal Court and this Court
One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way it may terminate the proceedings but if decided in another way then the proceedings would continue
In V C Shukla vs State through CBI  Fazal Ali J in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles namely i that a final order has to be interpreted in contra distinction to an interlocutory order and ii that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties
It was observed that these principles apply to civil as well as to criminal cases
In criminal proceedings the word judgment  is intended to indicate the final order in trial terminating in the conviction or acquittal of the accused
Applying these tests it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of section 111 of the and therefore not appealable
It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order
There is no finality to such an order for an application for bail can always be renewed from time to time
It is however contended that the refusal of bail by a Designated Court due to the non fulfilment of the conditions laid down in section 208 cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under article 21
While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in section 208 which places limitations on the power of a Designated Court to grant bail but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order
The Court must interpret the words not being an interlocutory order  used in section 191 in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage
There is no finality attached to an order of a Designated Court grant 246 ing or refusing bail
Such an application for bail can always be renewed from time to time
That being so the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under section 191 of the Act cannot be accepted
Surprisingly enough a few days after the hearing had concluded and the judgment reserved the State Government adopted a different stand in another case and contended that an order refusing to grant bail due to non fulfilment of the conditions laid down in section 208 of the Act was an interlocutory order
We really fail to appreciate such inconsistent stands being taken by the same government on a question of principle
In view of the stand adopted by the State Government in these cases we with the assistance of the learned counsel for the parties went through the facts of each case
We regret to find that the Designated Courts have not carefully considered the facts and circumstances and have rejected the applications for bail mechanically
As already mentioned the cases fall into three broad categories
The facts in Criminal Appeal No 313 of 1987 have been set out earlier
In Special Leave Petitions Nos 2369 and 2469 of 1987 the prosecution has been started at the instance of the management of a textile mill in Ahmedabad
The other category of cases have 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 were under a duty to examine the circumstances closely from this angle
That has not been done
It is therefore desirable to set aside the orders passed by the various Designated Courts and remit the cases for fresh consideration
Accordingly the appeal and the special leave petitions partly succeed and are allowed
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 we grant leave and set aside the impugned orders passed by the various Designated Courts in the State dismissing the applications for bail and direct them to consider each particular case on merits as to whether it falls within the purview of sections 3 andor 4 of the Terrorist  Disruptive Activities Prevention Act 1987 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 247 find that the acts alleged in the police report or complaint of facts A under section 141 do not fall within the purview of sections 3 and or 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 who have been enlarged on bail by this Court shall continue to remain on bail until their applications for bail are dealt with by the Designated Courts with advertence to the observations made above
SL Appeal  Petitions partly allowed


Summary:
 It was alleged in the petition for initiating proceedings for contempt that despite the fact that this Court passed an order on 191286 directing maintenance of status quo as in the High Court  in the presence of the counsel for respondent No 4 on December 22 1986 respondent No 4 and his son filed a miscellaneous petition before the High Court deliberately and wilfully suppressing from it the fact that this Court had directed maintenance of status quo and obtained an order dated January 3 1987 in their favour and had thus wilfully and flagrantly disobeyed and violated the status quo order of this Court
This Court on September 23 1987 vacated the aforesaid order of the High Court and restrained respondent No 4 and his son and their agents and servants from lifting sludgeslurry from the lands in question
This Court was of the view that there was no contempt
Giving reasons for its decision  HELD The expression status quo  is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty
According to the ordinary legal connotation the term implies existing state of things at any given point of time
The qualifying words as in the High Court  clearly limit the scope and effect of the status quo order
872F G In the present case the High Court determined only one question namely that slurry was not coal or mineral
The impugned judgment does not adjudicate upon the rights of the parties
It is therefore 870 obvious that status quo as in the High Court cannot mean anything else except status quo as existing when the matter was pending in the High Court before the judgment was delivered
Both the parties understood the scope and effect of the status quo order as meaning the state of things existing while the writ petition was still pending ie till the delivery of the judgment by the High Court
872G H 873A B No case for contempt is made out on the plain terms of the status quo order
The parties were relegated back to the position that obtained while the writ petition was pending
They were therefore subject to the order passed by the High Court dated January 15 1985
873C D The conduct of respondent No 4 for having approached the High Court and obtained the impugned order by suppressing the fact that this Court had passed the status quo order is highly deprecated
The proper course for him was to have approached this Court for clarification if he had any doubt as to the meaning and effect of the status quo order
873C