STATE OF A.P.THR.I.G.NATIONAL INV.AGENCY Vs MD.HUSSAIN @ SALEEM
Bench: H.L. GOKHALE,J. CHELAMESWAR
Case number: Special Leave Petition (crl.) 7375 of 2012
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRL. M.P. Nos. 17570 & 17571/2013
IN (SPECIAL LEAVE PETITION (CRIMINAL) Nos. 7375/2012 &
9788/2012)
State of Andhra Pradesh through I.G. National Investigation Agency … Petitioner
Versus
Md. Hussain @ Saleem … Respondent
AND IN THE MATTER OF
Sadhwi Pragya Singh Thakur … Applicant
Versus
National Investigation Agency … Contesting Respondent
J U D G E M E N T
H.L. Gokhale J.
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These Criminal Misc. Petitions have been filed by
the applicant for impleadment, and clarification of the
common order passed by this Court on 2.8.2013 in (i) SLP
(Crl.) No.7375/2012 State of A.P. through I.G. National
Investigating Agency Vs. Md. Hussain @ Saleem, and (ii) SLP
(Crl.) No.9788/2012 National Investigation Agency Vs. Ravi
Dhiren Ghosh. SLP (Crl.) No.7375/2012 arose from the
judgment and order dated 7.9.2012 in CRLP No.6562/2012
passed by the Andhra Pradesh High Court. SLP (Crl.)
No.9788/2012 arose out of the order passed by the Bombay
High Court on Criminal Bail Application No.1063/2012. The
relevant part of this order dated 2.8.2013 passed by this
Court reads as follows:-
“The only issue raised in these petitions is that in view of the provisions of Section 21 of the National Investigation Agency Act, 2008, the matters in the High Court ought to have been heard by a Division Bench, and not by a Single Judge. The submission made by the learned Additional Solicitor General is based on the provision of sub-section (2) of Section 21, which is a statutory requirement. That being so, the order passed by the High Courts deserve to be set aside, and the proceedings, namely, Crl. P.No.6562/2012 in the High Court of Andhra Pradesh and Criminal Bail Application No.1063/2012 in the
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Bombay High Court, will have to be restored to the Division Bench of the respective High Courts. Ordered accordingly.”
2. The applicant herein is accused No.1 in Special
(MCOC)
CC No.1/09 pending before the learned NIA and MCOC Court
Mumbai. The said case arises out of a bomb blast in
Malegaon that occurred on 29.9.2008. A charge-sheet has
been filed on 20.1.2009 against the applicant and others,
including 3 absconding accused, under Sections
302/307/326/324/427/153-A/120-B of I.P.C., read with
Sections 3,4,5 and 6 of Explosive Substance Act, 1908,
Sections 3,5 and 25 of Indian Arms Act, 15,16,17, 18, 20 and
23 of Unlawful Activities (Prevention) Act, 1967, and Sections
3(1) (i), 3(1) (ii), 3(2), 3(4), and 3(5) of Maharashtra Control
of Organised Crimes Act, 1999 (MCOC Act for short), before
the Court of Special Judge (MCOCA) Greater Mumbai,
Maharashtra. The National Investigation Agency has taken
over the investigation of this case, by virtue of an order of
the Central Government dated 1.4.2011 passed in exercise of
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the powers conferred upon it by Section 6(5) of The National
Investigation Agency Act, 2008 (NIA Act for short).
3. The applicant is in custody and has preferred an
application for bail on 23.10.2012, before a Single Judge of
the Bombay High Court, bearing Criminal Bail Application
No.1679 of 2012, under the provisions of Section 21(4) of the
MCOC Act r/w Section 439 of the Code of Criminal Procedure,
1973 (Code for short).
4. It so transpired that during the pendency of this
bail application, this Court passed the above referred
common order dated 2.8.2013 in SLP (Crl.) No.7375/2012 and
SLP (Crl.) No.9788/2012. The learned Special Public
Prosecutor appearing in the matter brought this order to the
notice of the learned Single Judge hearing the said Criminal
Bail Application, and submitted that in view of the said order
dated 2.8.2013 passed by this Court, the said Criminal Bail
Application is required to be placed before a Division Bench
of the High Court. The learned counsel appearing for the
applicant submitted to the High Court that the aforesaid
order of this Court has no application to the facts of the case
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of the applicant. The counsel for the applicant however
further submitted that he shall seek necessary clarification
with respect to the order passed by this Court. The learned
Judge has, therefore, adjourned the hearing of the Criminal
Bail Application. It is in these circumstances that the present
Criminal Misc. Petitions have been filed seeking impleadment
and also the following two prayers:-
(a) allow this application by clarifying/declaring that
provisions of Section 21(2) of National Investigation Agency
Act, 2008, applies only to those petitions/applications filed
under Section 21(1) of the National Investigation Agency Act,
2008, and order of this Hon’ble Court dated 2.8.2013 passed
in SLP (Crl.) No.7375 of 2012 & SLP (Crl.) No.9788 of 2012
does not apply to an appeal from an order of the Special
Court refusing bail.
(b) Further declare/clarify that where the Maharashtra
Control of Organised Crimes Act, 1999 applies, all bail
matters shall be governed by Section 21 of the Maharashtra
Control Organised Crimes Act, 1999, and not by Section 21 of
the National Investigation Agency Act, 2008.
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5. The principal submission on behalf of the petitioner
is canvassed in ground (B) of this Criminal Misc. Petition
which reads as follows:-
“B. For that Section 21(2) of the NIA Act, 2008, prescribes that every appeal under sub-section (1) of 21 shall be heard by a Bench of 2 Judges of the Hon’ble High Court. Applications for Bail governed by the NIA Act, 2008 are not preferred under 21 (1) of the NIA but under Section 21(4) of the NIA Act, 2008 under which, appeals to the High Court lie only against an order of the special court granting or refusing bail. Appeals under 21(4) are not required to be heard by a Bench of 2 Judges of the High Court. In as much as this Court’s order dated 2.8.2013 purports to hold, that appeals from orders of the special court, granting or refusing bail are to be heard by 2 Judges of the Mumbai High Court, the said order is manifestly contrary to the provisions of Section 21 of the NIA Act, 2008.”
6. In support of this application it is further
contended that the law is very well settled, and an order of
refusal of bail is an interlocutory order as decided in more
than one judgments of this Hon’ble Court. Reliance is placed
on the judgment of this Court in Usmanbhai Dawoodbhai
Memon and Ors. v. State of Gujarat (per A.P. Sen, J)
reported in AIR 1988 SC 922. It is submitted that this
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Hon’ble Court in its order dated 2.8.2013 has not noticed
that an order granting or rejecting bail is always considered
to be an interlocutory one.
7. Mr. Ram Jethmalani, learned senior counsel has
appeared in support of these Criminal Misc. Petitions,
seeking impleadment and clarification as aforesaid. Mr.
Sidhharth Luthra, learned Additional Solicitor General has
appeared for the respondent National Investigation Agency.
8. Before we turn to the interpretation of Section 21,
we must record that it is not disputed that amongst other
provisions the applicant is also being prosecuted for the
offences under the provisions of The Unlawful Activities
(Prevention) Act, 1967. This Act is included at Sl. No.2 in the
Schedule to the NIA Act, 2008. The term “Scheduled Offence”
is defined under Section 2(g) of the Act to mean an offence
specified in the Schedule. Section 13 of the Act lays down
the jurisdiction of Special Courts. Section 13(1) provides that
notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be tried
only by the Special Court, within whose local jurisdiction the
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said offence was committed. Section 14 gives the powers to
the Special Courts with respect to other offences. Section
13(1) and 14 read as follows:-
“13. Jurisdiction of Special Courts –
(1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
14. Powers of Special Courts with respect to other offences-
(1) When trying any offence, a Special 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.
(2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.”
Section 19 of the Act provides for a speedy trial of such
matters on day to day basis, and also that these trials shall
have the precedence over the trial of other cases against the
accused.
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9. In the present matter we are concerned with the
interpretation of Section 21 of the NIA Act, 2008. It will
therefore be necessary to reproduce the said section in its
entirety. The said section reads as follows:-
“21. Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
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Provided further that no appeal shall be entertained after the expiry of period of ninety days.”
10. The principal submission of Mr. Ram Jethmalani,
learned senior counsel appearing for the applicant has been
based on the premise that the order granting or refusing a
bail is an interlocutory order, and for that purpose he relied
upon the judgment of this Court in Usmanbhai (supra),
wherein this Court has observed in paragraph 24 as follows:-
“24. …… 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…..”
11. Based on this premise Mr. Jethmalani has
advanced
two-fold submissions:-
(i) Firstly that the order on a bail application is excluded
from the coverage of Section 21(1) of the Act, which
provides for the appeals to the High Court from any
judgment, sentence or order of a special court both on facts
and on law. It is only such appeals which are covered under
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Section 21(1) that are to be heard by a bench of two judges
of the High Court as laid down under Section 21(2) of the
Act. The appeal against refusal of bail lies to the High Court
under
Section 21(4) and not under Section 21(1), and therefore, it
need not be heard by a bench of two Judges.
(ii) In any case, it was submitted that the bail application
which the applicant had filed before the Bombay High Court
was one under Section 21(4) of the MCOC Act read with
Section 439 of the Code of Criminal Procedure, and was fully
maintainable before a single Judge. He has drawn our
attention to the provision of Section 21 of the MCOC Act,
1999 for that purpose.
(iii) For the sake of record, we may refer to Section 21(4) of
the MCOC Act which reads as follow:-
“4. Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act 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 of such release; and
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(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.”
12. Now, when we deal with these submissions we
must note that when it comes to the Scheduled Offences,
the Special Courts are given exclusive jurisdiction to try
them under Section 13(1) of the Act. When it is a composite
offence covered under any Act specified in the Schedule and
some other act, the trial of such offence is also to be
conducted before the Special Court in view of Section 14(1)
of the Act. Section 16(2) of the Act gives the power to the
Special Court to conduct a summary trial, where the offence
is punishable with imprisonment for a term not exceeding
three years or with fine or both. Section 16(3) of the Act
declares as follows:-
“(3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offences 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.”
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In view of this provision, the application for bail by the
accused lies before a Special Court.
13. The above referred Section 21(4) provides that
an appeal lies to the High Court against an order of the
Special Court granting or refusing bail. However sub-Section
(3) which is a prior sub-section, specifically states that
‘except as aforesaid’, no appeal or revision shall lie to any
court from any judgment, sentence or order including an
interlocutory order of a Special Court. Therefore, the phrase
‘except as aforesaid’ takes us to sub-Sections (1) and (2).
Thus when anybody is aggrieved by any judgment, sentence
or order including an interlocutory order of the Special Court,
no such appeal or revision shall lie to any Court except as
provided under sub-Section (1) and (2), meaning thereby
only to the High Court. This is the mandate of Section 21(3).
There is no difficulty in accepting the submission on behalf of
the appellant that an order granting or refusing bail is an
interlocutory order. The point however to be noted is that as
provided under Section 21(4), the appeal against such an
order lies to the High Court only, and to no other court as
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laid down in Section 21(3). Thus it is only the interlocutory
orders granting or refusing bail which are made appealable,
and no other interlocutory orders, which is made clear in
Section 21(1), which lays down that an appeal shall lie to the
High Court from any judgment, sentence or order, not being
an interlocutory order of a Special Court. Thus other
interlocutory orders are not appealable at all. This is because
as provided under Section 19 of the Act, the trial is to
proceed on day to day basis. It is to be conducted
expeditiously. Therefore, no appeal is provided against any
of the interlocutory orders passed by the Special Court. The
only exception to this provision is that orders either granting
or refusing bail are made appealable under Section 21(4).
This is because those orders are concerning the liberty of the
accused, and therefore although other interlocutory orders
are not appealable, an appeal is provided against the order
granting or refusing the bail. Section 21(4), thus carves out
an exception to the exclusion of interlocutory orders, which
are not appealable under Section 21(1). The order granting
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or refusing the bail is therefore very much an order against
which an appeal is permitted under Section 21(1) of the Act.
14. Section 21(2) provides that every such appeal
under sub-Section (1) shall be heard by a bench of two
Judges of the High Court. This is because of the importance
that is given by the Parliament to the prosecution concerning
the Scheduled Offences. They are serious offences affecting
the sovereignty and security of the State amongst other
offences, for the investigation of which this Special Act has
been passed. If the Parliament in its wisdom has desired
that such appeals shall be heard only by a bench of two
Judges of the High Court, this Court cannot detract from the
intention of the Parliament. Therefore, the interpretation
placed by Mr. Ram Jethmalani on Section 21(1) that all
interlocutory orders are excluded from Section 21(1) cannot
be accepted. If such an interpretation is accepted it will
mean that there will be no appeal against an order granting
or refusing bail. On the other hand, sub-Section (4) has
made that specific provision, though sub-Section (1)
otherwise excludes appeals from interlocutory orders. These
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appeals under sub-Section (1) are to be heard by a bench of
two Judges as provided under sub-Section (2). This being
the position, there is no merit in the submission canvassed
on behalf of the appellant that appeals against the orders
granting or refusing bail need not be heard by a bench of
two Judges.
15. We cannot ignore that it is a well settled canon of
interpretation that when it comes to construction of a
section, it is to be read in its entirety, and its sub-sections
are to be read in relation to each other, and not
disjunctively. Besides, the text of a section has to be read in
the context of the statute. A few sub-sections of a section
cannot be separated from other sub-sections, and read to
convey something altogether different from the theme
underlying the entire section. That is how a section is
required to be read purposively and meaningfully.
16. (i) As noted earlier, the submission of the applicant is
two-fold. Firstly, as stated above the appeal against an
order granting or refusing bail under Section 21(4) of the Act
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need not be before a bench of two Judges, which is
untenable as noted above.
(ii) The other submission is that the application for bail
which is made by the applicant before the High Court is an
original application under Section 21(4) of the MCOC Act
read with Section 439 of the Code, and is therefore,
maintainable before a Single Judge of the High Court. As far
as this submission is concerned, it has been repelled in the
judgment of Usmanbhai (supra) relied upon by the counsel
of the applicant himself. That was a matter under Terrorist
and Disruptive Activities (Prevention) Act (28 of 1987)
shortly known as TADA. This Act also had a similar provision
in Section 19(1) thereof which read as follows:-
“19 (1) 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.”
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It is also material to note that Section 20(8) of TADA had
provisions identical to Section 21(4) of MCOC Act. The
Gujarat High Court while interpreting the provisions of TADA
had held that it did not have the jurisdiction to entertain the
application for bail either under Section 439 or under Section
482 of the Code. That view was confirmed by this Court by
specifically stating at the end of para 22 of its judgment in
Usmanbhai’s case (supra) in following words:-
“We must accordingly uphold 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.”
17. The view taken by this Court in Usmanbhai was
reiterated in State of Punjab v. Kewal Singh and Anr.
reported in 1990 (Supp) SCC 147. That was also a matter
under TADA, and the application for bail by the respondents
was rejected by the designated court. Thereupon they had
moved the High Court under Section 439 of Cr.P.C. for grant
of bail, and a learned single Judge of Punjab & Haryana High
Court had enlarged them on bail on the ground that the co-
accused had been granted bail. The order in this matter is
also passed by a bench presided over by A.P. Sen, J. This
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Court set aside the order passed by the High Court and
clearly observed in paragraph 2 as follows :-
“2. …We are of the view that the High Court had no jurisdiction to entertain an application for bail under Section 439 of the Code. See Usmanbhai Dawoodbhai Memon V. State of Gujarat….”
Thereafter, the Court observed in paragraph 3:-
“3. We however wish to make it clear that the respondents may move the Designated Court for grant of bail afresh. The Designated Court shall deal with such application for bail, if filed, in the light of the principles laid down by this Court in Usmanbhai Dawoodbhai case.”
18. It is material to note that the view taken in
Usmanbhai (supra) was further confirmed by this Court in
State of Gujarat v. Salimbhai reported in 2003 (8) SCC
50, to which our attention was drawn by Mr. Luthra, the
learned Additional Solicitor General appearing for the NIA.
This time the Court was concerned with similar provisions of
Prevention of Terrorism Act, 2002 (POTA for short). Section
34 of POTA is entirely identical to Section 21 of the NIA Act
except that it did not contain the second proviso to sub-
Section 5 of Section 21 of NIA Act (which has been quoted
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above), and which proviso has no relevance in the present
case. It was specifically contended in that matter by the
learned counsel for the respondent that the power of the
High Court to grant bail under Section 439 of Cr.P.C. had not
been taken away by POTA. In para 39 of the judgment this
Court confirmed the view taken in Usmanbhai in the
following words:-
“13. Section 20 of TADA contained an identical provision which expressly excluded the applicability of Section 438 of the Code but said nothing about Section 439 and a similar argument that the power of the High Court to grant bail under the aforesaid provision consequently remained intact was repelled in Usmanbhai Dawoodbhai Menon v. State of Gujarat. Having regard to the scheme of TADA, it was held that there was complete exclusion of the jurisdiction of the High Court to entertain a bail application under Section 439 of the Code. This view was reiterated in State of Punjab v. Kewal Singh (1990 Supp SCC 147)”.
19. In this judgment in State of Gujarat v.
Salimbhai (supra), the Court specifically rejected the plea
based on Section 439 of the Code by holding that the High
Court under the special statute could not be said to have
both appellate and original jurisdiction in respect of the
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same matter. The Court observed in para 14 thereof as
follows:
“14. That apart, if the argument of the learned counsel for the respondents is accepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 Cr.P.C. in the original or concurrent jurisdiction which may be heard by a Single Judge or may prefer an appeal under sub-section (4) of Section 34 of POTA which would be heard by a Bench of two Judges. To interpret a statutory provision in such a manner that a court can exercise both appellate and original jurisdiction in respect of the same matter will lead to an incongruous situation. The contention is therefore fallacious.”
Thus, the law on the issue in hand is very well settled, and
there are three previous judgments of this Court already
holding the field, and yet the same challenge is being raised
once again, though now in respect to the NIA Act.
20. The order passed by this Court on 2.8.2013 in SLP
(Crl.) No.7375/2012 and SLP (Crl.) No.9788/2012 is therefore
clarified as follows:-
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(a) Firstly, an appeal from an order of the Special Court
under NIA Act, refusing or granting bail shall lie only to a
bench of two Judges of the High Court.
(b) And, secondly as far as prayer (b) of the petition for
clarification is concerned, it is made clear that inasmuch as
the applicant is being prosecuted for the offences under the
MCOC Act, 1999, as well as The Unlawful Activities
(Prevention) Act, 1967, such offences are triable only by
Special Court, and therefore application for bail in such
matters will have to be made before the Special Court under
the NIA Act, 2008, and shall not lie before the High Court
either under Section 439 or under Section 482 of the Code.
The application for bail filed by the applicant in the present
case is not maintainable before the High Court.
(c) Thus, where the NIA Act applies, the original application
for bail shall lie only before the Special Court, and appeal
against the orders therein shall lie only to a bench of two
Judges of the High Court.
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22. The Criminal Misc. Petitions are therefore
dismissed. Registry to send a copy of this order to the
Andhra Pradesh and Bombay High Courts forthwith.
………..……………………..J. [ H.L. Gokhale]
……………………………..J. [ J. Chelameswar ]
New Delhi Dated : September 13, 2013
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