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TMI Blog2013 (9) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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. 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) sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Section 439 or under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Code of Criminal Procedure 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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