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TMI Blog2003 (9) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... es an interlocutory order; that, in a criminal proceeding an order on an application for bail is not a final order; that, the order in question is neither a final order nor imposes a sentence; that, therefore, the certificate issued by the High Court should be cancelled and the appeal should be treated as incompetent. 3. There seems to be force in the contentions urged by the learned Senior Advocate on behalf of the respondents but the settled practice of this Court is that if on the face of it this Court is satisfied that the High Court has not properly exercised the discretion under Article 134(1)(c), the matter may either be remitted or this Court may exercise that discretion itself or treat the appeal as one under Article 136 (Nar Singh v. State of U.P., 1955 (1) SCR 238, and Baladin v. State of U.P., AIR 1956 SC 181). Therefore, we do not propose to examine this aspect of the matter any further but treat this appeal as a proceeding arising under Article 136 of the Constitution. Leave granted. 4. A ghastly incident took place at about 7.45 a.m. on 27.2.2002 when the Sabarmati Express was stopped near Godhra Railway Station and a coach was set on fire resulting in death of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h CR No.I-09 of 2002 registered with Godhra Railway Police Station. Certificate under Article 134A read with Article 134(1)(c) of the Constitution of India was granted by the High Court on the prayer made by the State. 5. Shri Harish Salve and Shri Sushil Kumar, learned senior counsel appearing for the appellant State, have assailed the order of the High Court mainly on two grounds, namely, that the accused having not applied for bail under Section 3(2) and (3) and Section 4 of POTA before the Special Judge, it was not open to the High Court to directly entertain their bail applications and grant them bail in the aforesaid offences and that in view of specific provision contained in Sub-section (2) of Section 34 of POTA only a bench of two judges of the High Court could grant bail in an offence under the said Act. The submission is that as a learned Single Judge of the High Court has granted bail while exercising power under Section 439 read with Section 482 Cr.P.C., the order passed by the High Court is not only illegal but also without jurisdiction. 6. In order to examine the contention raised by the learned counsel for the appellant, it is necessary to take note of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi. Admn.) AIR 1978 SC 179 and basically they are - the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. While hearing an application for cancellation of bail under Sub-section (2) of Section 439 of the Code, the Courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. The Court has to see as to whether the accused has misused the privil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, sine qua non for approaching the High Court. 10. Shri Amarendera Sharan, learned senior counsel for the respondents has submitted that the power of the High Court to grant bail under Section 439 Cr.P.C. has not been taken away by POTA and consequently the learned Single Judge had the jurisdiction to grant bail to the respondents in exercise of the power conferred by the aforesaid provision. Learned counsel has laid great emphasis upon Section 49 of POTA, especially Sub-section (5) thereof and has submitted that in view of the language used in this section, the power conferred upon the Court of Sessions and the High Court under Section 439 will remain intact. It has been urged that if the intention of the legislature was to make the provisions of Section 439 of the Code inapplicable in relation to offences under POTA, it would have made a provision similar to Sub-section (5) of Section 49 which expressly excludes the applicability of Section 438 Cr.P.C. We are unable to accept the contention raised by the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 13. In the present case, the respondents did not chose to apply for bail before the Special Court for offences under POTA and consequently there was no order of refusal of bail for offences under the said Act. The learned Single Judge exercising powers under Section 439 read with Section 482 Cr.P.C. granted them bail. The order of the High Court is clearly without jurisdiction as under the scheme of the Act the accused can only file an appeal against an order of refusal of bail passed by the Special Court before a Division Bench of the High Court and, therefore, the order under challenge cannot be sustained and has to be set aside. Even on merits the order of the High Court is far from satisfactory. Though it is a very long order running into 87 paragraphs but the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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