Holding

The High Court lacks jurisdiction to entertain bail applications under s.439 or s.482 for TADA offences; bail power rests exclusively with Designated Courts subject to s.20(8) and s.20(9) limitations, and their bail refusals are interlocutory orders not appealable under s.19(1).

Summary

The appellants, Usmanbhai Menon and others, were arrested after an armed clash and produced before a Designated Court under the Terrorist & Disruptive Activities (Prevention) Act, 1987 (TADA). Their bail applications were rejected by the Designated Court, and they sought bail from the Gujarat High Court under s.439 of the CrPC and the Court's inherent powers under s.482, which the High Court dismissed, holding it had no jurisdiction. The Supreme Court examined whether the High Court could entertain bail applications for TADA offences and the extent of the Designated Courts' power to grant bail under s.20(8) of TADA. It held that the special Act excludes the High Court’s jurisdiction, that bail power lies with the Designated Courts subject to the stringent conditions of s.20(8) and s.20(9), and that refusal of bail is an interlocutory order not appealable under s.19(1). The Court set aside the Designated Courts' bail refusals, directed fresh consideration of each case, and allowed the appellants to remain on bail pending such review.

Issues considered

Whether the High Court has jurisdiction to grant bail under s.439 CrPC or its inherent powers under s.482 for offences punishable under TADA ss.3 and 4.
Whether the power of Designated Courts to grant bail is limited by s.20(8) of TADA and how that limitation interacts with the provisions of the CrPC.
Whether an order of a Designated Court refusing bail is an interlocutory order or a final order for the purpose of s.19(1) of TADA.

Legislation cited

Arms Acts. 27
Code of Criminal Procedure, 1973s. 167, s. 366, s. 367, s. 368, s. 369, s. 370, s. 371, s. 374, s. 378, s. 392, s. 395, s. 4(1), s. 4(2), s. 437, s. 438, s. 439, s. 482, s. 5
Indian Penal Code, 1860s. 120B, s. 143, s. 147, s. 148, s. 149, s. 307, s. 323, s. 324, s. 504
Terrorist & Disruptive Activities (Prevention) Act, 1987s. 12(1), s. 12(2), s. 14(1), s. 14(3), s. 19(1), s. 19(2), s. 20(6), s. 20(7), s. 20(8), s. 20(9), s. 3, s. 4, s. 9(1), s. 9(4)

Subjects

TADADesignated CourtBailSection 439 CrPCInherent powersInterlocutory orderJurisdictionSpecial Act

Judgment

'y
USMANBHAI DAWOODBHAI MENON & ORS. ETC.
A
v.
STATE OF GUJARAT

MARCH 14, 1988

[A.P. SEN AND L.M. SHARMA, JJ.) B

Terrorist & Disruptive Activities. (Prevention) ACt, 1987-
- Whether the High Court has jurisdiction and power to grant bail under
..J.. s. 439 of Code of Criminal Procedure, 1973 or by recourse to its in-
- , herent powers under s. 482 to a person accused of an offence under
sections 3 and 4 of the Act-The nature of restraint on power of C
\-- Designated Courts to grant bail to such a person in view of limitations
unders. 20(8) of the Act, ·

This Criminal Appeal against the judgment end order ofthe
Gujarat High Court and the connected Special Leave Petitions against
the Orders of the various Designated Courts in the State .constituted D
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. appellents moved an applica-
tion for bail which was rejected by the Designated Court. E

The appellants moved the High Court under s. 439 r~ad with s.
482 of the C<K1e. The High Court rejected the bail application on the
ground that it had no jurisdiction to entertain such en application
under s. 439 of the Code or by recourse to its inherent powers under
s. 482 .. Aggrieved by the decision of the High Court, the appellants F
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 con-
straints of s. 20(8), it was not necessary to deal with the facts of the
connected special leave petitions directed against the orders of the diffe- G
rent 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 H
225
226 SUPREME COURT REPORTS [19881 3 S.C.R.
y
importance. The first was as to the jurisdiction and powers of the High
A
Court to grant bail under section 439 of the Code of Criminal Proce-
dnre, 1973 or by recourse to its inherent powers under s. 482 to a
person held in custody for an offence under ss. 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
B grant bail to such a person in view of the limitations placed on such
power under s. 20(8) of the Act. [246G-HI ;.,.
The Act being a special Act must prevail in respect of the jurisdic·

•~
tion and power of the High Court .to entertain an application for bail
under s. 439 of the Code or by recourse to its inherent powers under
s. 482. Under the scheme of the Act, there is complete exclusion of the ·-1
c 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 there-
under. 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
D 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

E
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; 240A, DI

No doubt, the legislature has, by the use of the words 'as if it
were' ins. 14(3) of the Act, vested a Designated Court with the status of

F
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 t·
under the Act i.e. 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·FI

Though there is no express provision excluding the applicability of
G s. 439 of the Code similar to the one contained in s. 20(7) of the Act in
relation to a case involving the arrest of any person for an offence punish·
able 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 nots. 20(8) of the Act, as it only places limitations
on such power, but it does not necessarily follow that the power of a
H Designated Court to grant bail is relatable to s. 439 of the Code. The
USMANBHAJ MENON v. STATE OF GUJARAT 227
'(
Designated Court is a 'court other than the High Court or the Court of
A
Session' within the meaning of s. 437 of the Code. The e~ercise of the
power to grant bail by a Designated Court is not only subject to the
limitations placed by s. 20(9) which in terms provides that the limita-
lions on grant of bail specified in s. 20(8) are in addition to the limita-
lions 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 B
), Designated Court to grant bail to a person for an offence under the Act
is derived from the Code and nots. 20(8) of the Act. The controversy as
._ to the power of the High Court to grant bail under s. 439 of the Code
must also turn on the construction ofs. 20(8) of the Act. [241B-E]
~
'

In view of the explicit bar in s. 19(2), there is exclusion· of the
\
jurisdiction of the High Court. It interdicts that no appeal or revision
c
t 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 pre-
served, as otherwise the Designated Court would have no power to
grant bail, still the source of power is not s. 439 of the Code but s. 437, D
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 he entitled to grant bail. The power to grant bail
under s. 439 is unfettered by any conditions and limitations like s. 437. E
It would run counter to the express prohibition contained in s. 20(8) of
the Act. The Court upheld the view of the High Court that it had no
jurisdiction to entertain an application for bail under s. 439 or under
s. 48iofthe Code. [243G-H; 244A-B, D]

+ As regards the approach which a Designated Court has to adopt F
while granting bail in view of the limitations placed on such power
under s. 20(8), 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 G
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. 1n H
,-,~

·~.
r>;'

228 SUPREME COURT REPORTS [1988] 3 S.C.R.
'(
A the special leave petitions Nos. 2369 and 2469 of 1967, the prc>Secution
had been staded 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 ss. 3 and 4 of the Act are made out. The
Designated Courts are under a duty to examine the circumstances
B 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 s. 439 of the Code of Criminal Procedure,
c 1973, the Court granted leave and set aside the impugned orders passed
by the various Designated Courts in the State, dismissing the applica- ·i
tions for bail, and directed them to consider each particular case on
merits as to whether it fell within the purview of s. 3 and/or s. 4 of the

D
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 s. 20(8) of the Act. Where the Designated Courts find that
(
the acts alleged in the police report or complaint of facts under s. 14( I)
do not fall within the purview of s. 3 and/or s. 4 of the Act, they shall in
exercise of the powers under s. 10 of the Act transfer the cases for trial

E
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 S.C.R. 476;
Balchand Jain v. State of Madhya Pradesh, I1977] 2 S.C.R. 52; Jshwar
F Chand v. State of Himachal Pradesh, I.L.R. (1975) H.P. 569 and V.C.
Shukla v. State through C.B.l., [1980] Suppl. S.C.C. 92, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 313 of 1987 etc.

G From the Judgment and Order dated 12.6.1987 of the Gujarat
High Court in Misc. Appln. No. 680 of 1987

P,S. Poti, G.A. Shah, Shankar Ghosh, M.N. Shroff, Vimal
Dave, M.R. Barot, E.C. Agarwala, Vijay Pandit, Ms. P. Bhatt, Shakil
Ahmad Syed, N.M. Ghatate, S.V. Deshpande, B.R. Dutta, Mrs. H.
H Wahi, S.S. Khanduja, S.R. Srivastava, Mrs. R. Gupta, K.K. Gupta,
'
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.[ . 229
y A.S. Bhasme and A.M. Khanwilkar, for the appearing parties.
A
I
The Judgment of the Court was delivered by

SEN, J. This appeal by special leave and the connected special
leave petitions are directed against the judgment and order of the
Gujarat High Court dated May, 12, 1987 and the orders passed by B
various Designated Courts in the State constituted under s. 9( 1) 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 s. 439 of
,\
I
the Code of Criminal Procedure, 1973 or by recourse to its inherent
powers under s. 482 to a person held in custody accused of an offence
under ss. 3 and 4 of the Act, and secondly, as to the nature of the
c
.... 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
s. 20(8) of the Act.

By the judgment under appeal, the High Court has held that D
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 s. 439 of the Code. In other cases, the persons under detention
have applied for grant of special leave under Art. 136 of the Constitu-
tion against the orders passed by various Designated Courts in the
State refusing to grant bail on the ground that the· power of a· E
Designated Court to grant bail is circumscribed by the limitations pre-
scribed by s. 20(8) of the Act i.e. 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 F
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 pos-
session of the disputed plot admeasuring 16,000 square yards resulting
in multiple injuries to members of both the groups. The appellants as G
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, Naro!, applied for and obtained tempor-
ary 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 H
'
230 SUPREME COURT REPORTS I1988] 3 S.C.R.

Babubhai Kansara for the purchase of the disputed plot. The price
A
fixed was Rs. 35 per square yard and Rs.60,000 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 Rs.3,50,000 which was equiva-
lent to 30% ·of the total sale consideration and had been placed in
possession of the land by the vendor by a deed acknowledging the
B receipt of money and mentioning the delivery ofpossession. 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
c 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 P.S.I., Satellite
Station to take appropriate action and prevent any untoward incident.
D As apprehended, the two sons of the original vendor Karam Ali and
Iqbal Ali put up armed resistance and in the scuffle both sides sus-
tained injuries. At the time of the incident, the police arrived at the
spot and apprehended the appellants. The appellants were straighta-
way produced before the Designated Court within a period of 24 hours
after their arrest without receiving the complaint of facts which consti-
E tute. offences alleged to have been committed or a police report as
required under s. 14(1). 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 s. 3 of
the Act apart from various other offences under the Indian Penal
F Code, 1860.

We are informed that the police have now filed a charge-sheet
against the appellants before the Designated Court for having commit-
ted offences punishable under ss. 143, 147, 148, 149, 307, 504, 324, 323
and 120B of the Indian Penal Code, s. 27 of the Arms Act and ss. 3 and
G 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
H in possession were entitled to act in self-defence. As against the two
USMANBHAI MENON v_ STATE OF GUJARAT [SEN, J_] 231
y
sons of the original vendor, both of whom are cited as prosecution
A
witnesses, the police have filed a charge-,-sheet for the self-same off-
ences except for the offences under ss_ 3 and 4 of the Act in the Court
of the Chief Judicial Magistrate, Naro! 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
s. 20(8) of the Act. The Designated Court having refused to grant bail B
to the appellants, they moved the High Court by way of an application
under s. 439 read withs. 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 s. 439 of the Code or by recourse to its inherent powers under s.
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 C
State Government under s. 9(1) 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-s. ( 1) of s. 19 of the Act which provided
that an appeal as a matter o~ right shall lie against any judgment or
order of the Designated Court, not being an interlocutory order, to the D
Supreme Court, and in view of the explicit bar contained in sub--s. (2)
thereof which provided that no appeal or revision shall lie before any
Court i.e. 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.
E
Facts in the connected special leave pe!Illons 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 ihat we take as to the nature of the function of the
-+ Designated Courts in dealing with applications for bail withih the con-
straints of$. 20(8), jt is not necessary to deal with the -facrs of these F
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 instiga-
tion. (3) Cases connected with trade-union activities started- at the G
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 fovolve_d may
be set Out. Sub-s. (1) of s. 3 of the Act which gives a meaning to the H
232 SUPREME COURT REPORTS [1988] 3 S.C.R.

expression 'terrorist.act' is in the following terms:
A
"3.(1) Whoever with intent to overawe the Government as
by law established or io 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 diffe-
B rent sections of the people does any act or thing by using
bombs, dynamite or other explosive substances or in- .~.
flammable 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
c persons or loss of, or damage to, or destruction of, prop-
erty 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 Govern-
ment or any other person to do or abstain from doing any
D act, commits a terrorist act."

Sub--s. (2) thereof reads:

"(2) Whoever commits a terrorist act, shall,:

E (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 imprison-
ment for a term which shall not be less than five years
F but which may extend to imprisonment for life and
shall also be liable to fine."

Sub--s. ( 1) of s. 4 provides for punishment for disruptive activities
and reads:

G "4.(1) Whoever commits or conspires or attempts to com-
, mit or abets, advocates, advises, or knowingly facilitates
the commission of, any disruptive activity or any act pre-
paratory 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
H shall also be liable to fine."
USMANBHAI MENON v. STAIB OF .GUJARAT [SEN, J.[ 233

Sub-s. (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 activ-
ity" means any·action taken, whether by act or by speech or
· through any other media or in any other manner what-
. soever, B

(i) which questions, disrupts or is intended to
disrupt, whether directly or indirectly, the sovereign-
ty ~d territorial integrity of India; or

(ii) which is intended to bring about or supports any
·. claim, whether directly or indirectly, for the cession C
of any part of Illdia or .the secession ·of any part of
India from the Union.

Explanation~ For the purposes of thls sub-section,-
. . D
(a)· "c~;sio~;, includes-the a~ssion of any claim of
any foreign country to any part oflndia, and

(b). ''secession" includes the assertion of any claim to
determine whether a'part of India will remain within
the Union.".' E "
Sec.. 19 ousts the jurisdiction of the High Court altogether and
reads. ·

)~ "19.(1) Notwithstanding anything contained in the Code,
an appeal shall lie as a matter of right from any judgment, F
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 G
. an interlocutory order of a Designated Court."

Sub-s. (8) of s. 20 of the Act which has an important bearing on
these cases is in these terms:

"(8) Notwithstanding anything contained in the Code, no H
234 SUPREME COURT REPORTS [1988) 3 S.C.R.
' .

person accused of an offence punishable under this Act or '(
A
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 oppor-
tunity lo oppose the application for such release, and
B
(b) where the Public Prosecutor opposes the applica-
tion, 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 off-
ence while on bail."
-
c Sub-s. (9) thereof provides that the limitations on granting of bail _.1
specified in sub-s. (8) are in addition to the limitations under the Code r
or any other law for the time being in force on granting of bail.

In support of the appeal and the connected special leave peti-
0 !ions, 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) Whiles. 11(1) creates a special tribunal for
trial of offences under s. 3 ors. 4 of the Act viz. the Designated Courts ).._.
E constituted by the Central or the State Government under s. 9(1), the
various sub-sections of s. 14 provide that the procedure and powers of
such Designated Courts shall be as specified t)lerein. Particular
emphasis is laid upon the provision contained in sub-s. (3) thereof
which reads:

F "14(3). Subject to the other provmons of this Act, a -)-
Designated Court shall, for the purpose of trial of any off-
ence, 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."
G
(3)The 'source of power' of a Designated Court to grant bail is nots. I
20(8) of the Act but s. 439 of the Code and that s. 20(9) only places /'-
limitations on such power. This is made explicit by s. 20(9) which
provides that the limitations on the granting of bail specified in sub-s.
(8) are 'in addition to the limitations under the Code or any other law
H for the time being in force'. (4) Though the legislature has made an
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.] 235
' y
' express provision ins. 20{7) of the Act which provides that nothing in
s..438 of the Code which deals with the power of the High Court or the A
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 punishalile under the Act or any rule made
thereunder, there is no like provision makings, 439 of the Code deal-
,.z_ ing with the power of the High Court or the Court of Sessions to grant B
baiL A fortiori, Chapter XXXIII of the Code is still preserved as
othenvise the Designated Courts would have no power to grant bail.
- .~ As r~giifds the jurisdiction and power of the High Court to grant
bail under s. 439 o{ tile Gode or by recourse to its inherent powers
\ under s. 482, the contention ofi behalf of the appellants and the
~· petitioners is that Chapter XXXIII of the Code being applicable, the c
source of power of a Designated Court to grant bail being s. 439, the
necessary concomitant is that the jurisdiction and power of the High
Court to entertain an application for bail oit its own under s. 439 or by
rec6iltSe to its inherent powers under s. 482, is applicable. The argu-
ment is that it is impermissible for the legislature to set up a new D
hierarchy of Courts different from the one envisaged by the Constitu-
tion and byepass the High Court. Under the Constitution the High
Court is the repository of all judicial authority within the State. To
iiike away the power of the High Court would be tantamount to strike
at the very foundation of an independent judiciary, free from execu-
tive control. It is pOiiiied out that s. 20{4) of the Act makes s. 167 of E
the Code applicable in relation to a case involving an offence punish-
able· under the Act, subject to the modifications specified therein. Cl.
(a) thereof provides that reference in sub-s. (1) of s. 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-s. (2) of that section to 'fifteen days', F
'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 s. 167 bys. 20(4) 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 G
J to time upto a period of one year. It is said that the affect of this
virtually means detention without trial. The learned counsel accord-
ingly 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 Art. 21 of the Constitution without the constitutional
safeguards enshrined in Art. 22. However, it was expressly stated H
236 SUPREME COURT REPORTS [1988) 3 S.C.R.

before us that the constitutionality of the Act is not under challenge in
."'
A
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
B reference in Re the Special Courts Bill, 1978 (1979) 2 SCR 476 where
the Court upheld the Special Courts Bill mainly because of the provi-
>.-.
sion 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,
c should inspire the confidence not only of the accused but of the entire
community. Administration of justice has a social dimension and the
t
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 Special
Courts Act, 1979 instead leaves it to the discretion of the Central
D 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 s. 9(4) of the
Act appointed retired District Judges to be Judges of some of the
Designated Courts in the State, constituted under s. 9(1). It is app'
rehended that a retired District Judge would be completely at the ~.
E 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 entrust-
ment of the power to the Executive Magistrates to grant police remand
extending over one year by amendment of sul>-.5. (1) of s. 167 of the
F 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 s. 25 of the
Evidence Act which, according to the learned counsel, offend against
Art. 21 of the Constitution. See: ss. 11(2), 14(2), 14(5), 15(1), 16(1),
(2) and (3), and 21(2). It is said that the procedure contemplated by
G Art. 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 Art. 21 would not be satisfied. We do not think it f
necessary to go into these aspects for the constitutionality of the Ter-
rorist & Disruptive Activities (Prevention) Acts, 1985 and 1987 and
their provisions is not a question before us. We feel that these ques-
H tions should best be left open to be dealt with by the ConstitutiOn
Bench.
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.] 237
' /

'r At the very outset, Shri Poti, learned counsel appearing for the
State Government with his usual fairness, unequivocally accepted that A
the provisions of the Act do not take away the constitutional r'emedies
available to a citizen to approach the High Court under Art. 226 or
Art. 227 or move this Court by a petition under Art. 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 Art. 226 or Art. 227 or B
this Court under Art. 32 challenging the constitutional validity of the
Act or its provisions on the ground that they offend against Arts. 14,

·- 21 and 22 or on the ground that a notification issued by the Central
Government or the State Government under s. 9(1) 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 cons_titutionally invalid. c

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 D
one prescribed by the Code. Under s. 14(1), the Designated Court has
exclusive jurisdiction for the trial of such offences and by virtue of s.
12(1), 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 E
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 legisla-
_ture by the use of the words 'as if it were' in s. 14(3) 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 proce-
-+- dure for the trial of an offence must be in accordance with the proce- F
dure 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 s. 14(3) 'Subject to the other provisions of the Act'. Where an
enactment provides for a complete procedure for the trial of an off-
ence, it is that procedure that must be followed and not the one pre-
scribed by the Code. G
J. Our attention was drawn to s. 4(1) of the Code which provides
that all offences under the Indian Penal Code, 1860 shall be inves-
tigated, inquired into, tried, and otherwise dealt with according to the
provisions contained therein i.e. in accordance with the procedure
prescribed under the Code. Sub-s. (2) thereof however engrafts an H
238 SUPREME COURT REPORTS [1988] 3 S.C.R.

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:

"4(2). All offences under any other laws shall be inves-
ligated, inquired into, tried, and otherwise dealt with ~
according to the same provisions, but subject to any
B enactment for the time being in force regulating the man-
ner or place of investigating, inquiring into, trying or .l,
otherwise 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 s. 5 of the. ,A
-
Code which is in these terms:
c
"(5). Nothing.contained in this Code shall, in the absence t
of a specific provision to the contrary, affect any special or
local law for the time being in force, or any special jurisdic-
tion or power conferred, or any special form of procedure
D prescribed, by any other law for the time being in force."

It is submitted that there is no express provision excluding the applica-
bility of s. 439 of the Code similar to the one contained in s. 20(7) of
the Act in relation to any case involving the arrest of any person on an
\
accusation of having commited an offence punishable under the Act or ).-.
E any rule made thereunder, but that result must, by necessary implica-
lion, follow. According to the learned counsel, the source of power of
a Designated Court to grant bail is not s. 439 of the Code but s. 437
which speaks of 'a Court other than a High Court or a Court of Ses-
sion' and it, insofar as material, reads as follows:

F "437(1). 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)
f-
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
_H the situation under the ordinary penal law. The intendment is to pro-
~}

...
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.] 239
'y vide special machinery to·combat the growing menace of terrorism in
A
different parts of the ·.country. Since, however, the Act is a drastic
measure, it should not ordinarily be resorted to unless the Govern-
• ment'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 B
) 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
s. 439 of the Code or by recourse to its inherent powers under s. 482.
Under the scheme of the Act, there is.complete exclusion of the jurisd-
A iction 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 c
l-
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 jllrisdic-
tion and power to hear an appeal under s. 374 against any judgment or D
sentence passed by the Co.urt of Session, the power to hear an appeal
against an order of acquittal by a criminal court including the Court of
Session under s. 378, the power to hear a reference as to the validity of.
any Act, ordinance or regulatibn or any provision contained therein
-..I made by a criminal court under s. 395, the confirmation of a death
sentence on a reference by a Court of Session under SS. 366--371 ands. E
392, the power to grant bail under s. 439 subject to certain limitations,
the inherent power under s. 482 to make such orders as may be neces-
sary or to prevent abuse of the process of the Court or otherwise to
secure the ends of justiee. 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 suborcji-
nate to it.
F

The legislature by enacting the law has. treated terrorism as a
special criminal problem and created a special court called a Desi-
gnated Court to deal with the special problem and provided for a
special procedure for the trial of such offences. A grievance was made G
before us that the State Government by notification issued under s.
-'\. -l 9(1) 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 H
~

240 SUPREME COURT REPORTS [1988] 3 S.C.R.
y ~
procedures within the existing system. Parliament in its wisdom has '
A
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 ()ffences called
terrorist acts and disruptive activities as defined in ss. 3(1) and 4(2)
and provides for a special procedure for the trial of such offences.
Under s. 9(1), the Central Government or a State Government may by
B 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 s. 14(1), a Designated Court.
has exclusive jurisdiction for the trial of offences under the Act and by
c virtue of s. 12(1) it may also try any other offence with which .the
accused maY., under the Code, be charged at the same trial if the
-I'
offence is connected with such other offence. WheFe 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
D Code.

No doubt, the legislature by the use of the words 'as if it were' in
s. 14(3) 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 ).-
E the procedure to be followed for the trial of an offence under the Act
i.e. 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 s.
14(3) 'Subject to the other provisions of the Act' and adopt a construe-
tion in furtherance of the object and purpose of the Act. The manifest
F 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 ins. 2(1)(e) but there are no function~ and·duties vested in the
High Court. The only mention of the High Court is in s. 20(6) which
provides that ss. 366-371 ands. 392 of the Code shall apply in relation
G 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. Sec. 19(1) 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.
H There is thus a total departure from different classes of Criminal
,,

USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.J 241

r Courts enumerated ins. 6 of the Code and a new hierarchy of Courts is
sought to be established by providing for a direct appeal to the
A
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 bys. 20(6) in the matter of confirmation of a death
sentence passed by a Designated Court.
B
) Though there is no express provision excluding the applicability
of s. 439 of the Code similar to the one contained in s. 20(7) 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, fol-
low. It is true that the source of power of a Designated Court to grant
\ bail is not s. 20(8) of the Act as it only places limitations on such c
.\.. power. This is made explicit by s. 20(9) which enacts that the limita-
!ions on granting of bail specified in s. 20(8) 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 s. 439 of the Code. It cannot be· D
doubted that a Designated Court is 'a Court other than the High Court
or the Court of Session' within the meaning of s. 437 ofthe 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 bys. 20(8) of the Act.
,,.,,1,
E
The controversy as to the power of the High Court to grant bail
under s. 439 of the Code must also tum on the construction of s. 20(8)
of the Act. It commences with a non--0bstante clause and in its opera-
tive 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 c.ondition is
that the prosecution must be given an opportunity to oppose the appli-
F

cation 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 G
detention cannot be released on bail. It is quite obvious that the source
_,( of power of a Designated Court to grant bail is not s. 20(8) of the Act
but it only places limitations on such powers. This is implicit bys. 20(9)
which in terms provides that the limitations on granting of bail speci-
fied in sub-s. (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- H
242 SUPREME COURT REPORTS [1988) 3 S.C.R.
•t
A 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
l
derived from the Code and not from s. 20(8) of the Act.
•
In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52
while interpreting a similar provision contained in r. 184 of the
.
i;

B
Defence and Internal Security of India Rules, 1971, Bhagwati, J.
speaking for a three Judge Bench observed: A
"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, I-.
c 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 -1
convicted of contravention of any Rule or order made
under the Rules, if in custody, shall not be released on bail
D 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 fulfil-
ment of the aforesaid two conditions. When these two con-
ditions are satisfied, the fetters are removed and the power
0

of granting bail possessed by the Court under the Code of
E
Criminatprocedure 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 Crimi-
nal 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-;;ontained code for grant of bail in
F
case of a person accused or convicted of contravention of 1-
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 can-
not be construed as displacing altogether the provisions of ,
the Code of Criminal Procedure in regard to bail in case of '
G
a person accused or convicted of contravention of any Rule
or order made under the R1,1les. These provisions of the
Code of Criminal Procedure must be read along with Rule ,L.
184 and full effect must be given to them except in so far as
they are, by reason of the non-obstante clause overridden i-
H by rule 184." .' I
'

~
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.[ 243

r The learned Judge placing imphasis on the words 'if in custody' in r.
184, further observed:
A

"It is an application for release of a person in custody that
is contemplated by Rule 184 and not an application for
g~ant of 'anticipatory bail' by a person apprehending
arrest. Section 438 and Rule 184 thus operate at different B
), 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 c
~
contravention of any Rule or order made under the
(Defence and Internal Security oflndia) Rules, 1971."

Upon that view, the Court in Balchand Jain's case held that r.
184· of the Defence and Internal Security oflndia Rules, 1971, does not D
tale away the power conferred on a Court of Session or a High Court
under s. 438 of the Code to grant anticipatory bail. We have been
referred to the decision of R.S. Pathak, CJ speaking for a Division
Bench of the Himachal Pradesh High Court in lshwar Chand v. State
,-.j. of Himachal Prades,,, ILR ( 1975) HP 569 holding that r. 184 did not
affect the jurisdiction and power of the High Court under ss.438 and E
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 s. 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 F
framed thereunder which would exclude the jurisdiction and power of
the High Court altoge,ther. On the contrary, s . .12(2) of that Act expre-
ssly vested in the High Court the appellate jurisdiction in certain
specified cases. In view of the explicit bar ins. 19(2), 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 G
I judgment, sentence or order, not being an interlocutory order, of a
-A Designated Court. The Act bys. 16(1) 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 io. grant bail, still ·the
source of power is nots. 439 of the Code but s. 437 being a Court other H
244 SUPREME COURT REPORTS I1988] 3 S.C.R.

A
than the High Court or the Court of Session. Any other view would
lead to an anomalous 1situation. If it were to be held that the power of a
1
Designatt!d Court to grant bail was relatable to s. 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 s. 439 is unfettered by any conditions and limitations
B like s. 437. It would run counter to the express prohibition contained.
in s. 20(8) of the Act which enjoins that notwithstanding anything in .1-
the Code, no person accused of an offence punishable under the Act or
any rule made thereunder shail, 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 Jshwar Chand A
tum on the scheme of the Defence & Internal Security of India Act,
c 1971. They proceed on the well recognised principle that an ouster of
jurisdiction of the ordinary Courts is not to be readily inferred except 1
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 ss. 438 and 439
D exists. We must accordingly 1,1phold the view expressed by the High
Court that it had no jurisdiction to entertain an application for bail
under s. 439 or under s. 482 of the Code.

That takes us to the approach which a Designated Court has to
adopt while granting bail in view of the limitations placed on such
E power under s. 20(8). 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 s. 20(8), 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 els. (a) and
F (b) are satisfied. In view of these more stringent conditions a
Designated Court should carefully examine every case coming before
t
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,
G the allegations of fact, the police report along with the statements in
the case diary and other available materials should be closely I
examined. A prayer for bail ought riot to be rejected in a mechanical ;
manner.

At the conclusion of the hearing on the legal aspect, Shri Poti,
H learned counsel· appearing for the State Government contended, on
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.[ 245

\~( instructions, that an order passed by a Designated Court for grant or
I refusal of bail is not an 'interlocutory order' within the meaning of s.
19(1) of the Act and therefore an appeal lies. We have considerable
A

doubt and difficulty about the correctness of the proposition. The
expression 'interlocutory order' has been used in s. 19( 1) in contra-
distinction to what is known as final order and denotes an order of
f. purely interim or temporary nature. The essential test to distinguish B
) one from the other has been discussed and formulated in several deci-
sions 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,
•. -
1
then the proceedings would continue. In V.C. Shukla v. State through
C.B.I., [1980] Suppl. SCC 92, Fazal Ali, J. in delivering the majority c
l 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 ord_er;
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 D
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 acquit-
ta! 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 s. 11(1) of the Special E
Courts Act, 1979 and therefore not appealable. It cannot be doubted
thai the grant or refusal of a bail application ·is essentially an
interlocutory order. There is no finality to such an order for an appli-
cation 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 s. 20(8} cannot be F·
treated to be a final order for it affects the life or liberty of a citizen
guaranteed under Art. 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 con-
tained in s. 20(8) which places limitations on the power of a
Designated Court to grant bail, but that by itself is not decisive of the G
question as to whether an order of this nature is not an interlocutory
J \
order. The Court must interpret the words 'not being an interlocutory
order' used in s. 19(1) 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- H
-I
246 SUPREME COURT REPORTS 11988] 3 S.C.R.

A 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 s. 19(1) of the Act, cannot be
accepted.
B
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 ins. 20(8) of the
Act was an interlocutory order. We really fail to appreciate such
C inconsistent stands being taken by the same government on a question
of principle. ·
I
,/,
In view of the stand adopted by the State Government irl-these
cases, we with the assistance of the learned counsel for thttparties
went through the facts of each case. We regret to find that the
D Designated Courts have not carefully considered the facts and cir-
cumstances 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 1987the prosecution has
been started at the instance of the management of a textile mill in
E Ahmedabad. The other category of cases have arisen out of communal
riots. Normally such cases have to be dealtwith under the ordinary
procedure prescribed by the Code, unless offences under ss. 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
F various Designated Courts and remit the cases for fresh consideration.

Accordingly, the appeal and the special leave petitions partly suc-
ceed and are allowed. While upholding the judgment and order of the
High Court dismissing the applications for bail under s. 439 of the
Code of Criminal Procedure, 1973 we grant leave and set aside the
G impugned orders passed by the various Designated Courts in the State
dismissing the applications for bail and direct them to consider each l
particular case on merits as to whether it falls within the purview of ss. /'
3 and/or 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
H their powers under s. 20(8} of the Act. Where the Designated Courts
..,.
"
"' .. ·r
USMANBHAI MENON v. STATE OF GUJARAT [SEN, J.[ 247

find that the acts alleged in the police report or complaint of facts A
under s. 14(1) do not fall within the purview of ss. 3 and_lor 4 of the
Act, they shall in exercise of the powers under s. JO 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. B

S.L.. Appeal & Petitions partly allowed.

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