JUDGMENT
V.S. Dave, J.
1. This bail application has been filed under Section 17 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (here in after referred to as the’ Act, 1985′) read with Section 439 Cr. P.C.
2. The petitioner is an accused in sessions case No. 3/87 pending before the Designated Court, Ajmer In the aforesaid case charge-sheet has been filed against several accused including the petitioner for offences under Sections 302, 307, 354, 224, 225, 109, 114 and 120B of the Indian Penal Code, Section 120 of the Indian Railways Act, Sections 25 and 27 of the Arms Act and Section 3/4 of the Act, 1985.
3. Prosecution’s case in brief is that on 4th September, 1986 at 1.20 a.m. the guard of train No. 1 BHL running between Ganganagar and Surat Garh, informed the Police Station, G.R.P. Shri Ganganagar through the Assistant Station Master that certain accused persons named in the report and who were being taken in police custody were freed from the police custody after killing one Constable and seriously injuring various Constables including one Head Constable. On receipt of this report, after registration of the case for various offences, the Investigating Officer went on the spot, the inquest memo was prepared and the various injured persons were sent for medical examination. Site was inspected along with Dy. Superintendent of Police where one pistol of 315 bore was found, one empty cartridge, three live cartridges, and one pair of goggles were recovered. Nearby one more empty cartridge and one 32 bore live cartridge were also found. During the course of investigation, the accused persons were arrested including the present petitioner, The petitioner was a student of Patiala College and earlier to that was studying in Phagwara. She was an active worker of female wing of A.I.S.S.F., Police collected evidence that she has indulged in activities which constitute an offence under the Act. 1985 and that she conspired with the other accused for freeing those accused from police custody. Arms and ammunitions were also alleged to have recovered from her and thereafter she was challaned. She is in judicial custody and facing trial before the Designated Court, Ajmer. A bail application was submitted by her before the learned Judge who rejected the same and thereafter she has approached this Court.
4. Learned counsel, appearing for the petitioner, vehemently and strenuously argued that there is no evidence against the petitioner and that the trial is not proceeding despite the fact that accused has been in jail for last year and a half. It is submitted that the evidence of conspiracy in the case is too weak to connect her with the crime and that she is a woman and has been falsely implicated on account of political enmity. It is further submitted that the petitioner is a student of M.A. (Punjabi) of Punjab University, Patiala and because of this case she is unable to continue her study. He has also submitted that the trial Court while rejecting the bail has not correctly relied upon the decision reported in Sukhdev Singh v. Union Territory, Chandigarh. 1986 Cr. L.J. 1757.] It has also been submitted that this Court has wide jurisdiction under Section 439 Cr. P C to enlarge the accused on bail even in cases under Sections 3 & 4 of the Act, 1985. It was also submitted by the counsel that the jurisdiction of this Court was taken away only when the Act, 1985 was substituted by Terrorist and Disruptive Activities (Prevention) Act, 1987 (here in after referred to as ‘the Act, 1987’). It has further been submitted that observations made by their Lordships of the Supreme Court in Usman Bhai Daud Bhai Menon v. State of Gujarat 1988 (1) SVLR (Cr.) 157, is not applicable in the instant case. He has further submitted that the detention of accused is violative of Article 21 of the Constitution of India.
5. Learned Additional Advocate General, appearing on behalf of the State, strongly opposed the bail application and submitted that the High Court has no jurisdiction express or implied for entertaining a bail application under Section 439 of the Code of Criminal Procedure. He drew my attention to the various observations made by their Lordships of the Supreme Court in U.D. Menon’s case (supra). It was further submitted that under Section 17 of the Act, 1985 which is just as Section 20(8) of the Act, 1987, bail cannot be granted unless certain conditions mentioned therein are fulfilled. The Legislature in his own wisdom has made the provisions of the bail and has placed riders in the matter of grant of bail. One is that the Public Prosecutor has to be given an opportunity to oppose the application for release and secondly, that if the same is opposed then the Court must record its satisfaction that there are reasonable ground for believing that the accused is not guilty of offence charged and thirdly, that he is not likely to commit any offence while on bail. It was then submitted that there is enough material on record in the light of which this Court cannot record its satisfaction, that there are no reasonable grounds for believing that petitioner is innocent and that she will not repeat this crime.
6. I have given my thoughtful consideration to the rival contentions and have carefully gone through the land mark decision in U.D. Menon’s case. In this case, their Lordships while considering the scope of jurisdiction and powers of High Court held as under:
Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 207) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are in addition to the limitation under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of DESIGNATED Court to grant bail is relatable to Section 439 of the Code. The exercise of the power to grant bail by a Designated Court is not subject to the limitations contained therein but is also subject to the limitations placed by Section 20(8) of the Act.
The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act. It commences with a non-obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act if in custody unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in Sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It therefore follows that the power derived by a Designated court to grant bail to a person accused of an offence under the Act if in custody, is derived from the Code and not from Section 20(8) of the Act.
Upon that view, the Court in Balchand Jain’s case held that Rule 184 of the Defence and Internal Security of India Rules, 1971 does not take away the power conferred on a court of Sessions or a High Court under Section 438 of the Code to grant anticipatory bail We have been referred to the decision of R.S. Pathak, C.J. speaking for a Division Bench of the Himachal Pradesh High Court in Ishwar Chand v. State of Himachal Pradesh ILR 1975 MP 569 holding that Rule 184 did not affect the jurisdiction and power of the High Court under Sections 438, and 439 of the Code which were independent of the power of the special tribunal to try an offence for contravention of an order made Under Section 3 of the Defence and 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 and Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether. On the contrary Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2) there is exclusion of the jurisdiction of the High Court. In interdicts that no appeal or revision shall lie to any Court, including the High Court, against any judgment, sentence or order, not being an interlocutory order of a Designated Court. The Act by Section 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 to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a Court other than the High Court or the Court of Sessions 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 or Sessions court would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that not withstanding any thing in the Code, no person accused of an offence punishable under the Actor any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. Lastly, both the decisions in Balchand Jain’s and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred except by express provision or by necessary implication. It all depends on scheme of the particular Act as to whether the power of the High Court and the courts of Sessions to grant bail under Sections 438 and 439 exists. We must accordingly up-hold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 438 of the Code.
7. Their Lordships also considered the jurisdiction of the Courts in light of Section 19(1) of the Act, 1987 where the words ‘interlocutory order’ have been used and where every order under the, Act has been made appealable. This second aspect of the matter is not directly involved in this case and as such I have refrained from quoting that part of the judgment. Their Lordships after detailed discussions, upheld the judgment of their Lordships of the Gujarat High Court dismissing the application for bail under Section 439 Cr. P.C. Their Lordship how ever, directed the Designated Court to consider the bail application in the light of Section 20(8) of the Act, 1987 in view of the limitations mentioned therein. Thus, a perusal of this judgment makes it clear that their Lordships have held that the Court of Sessions or the High Court have no jurisdiction express or implied to entertain the bail application and grant the same under Section 439 Cr. P.C. and further that the contention of the State that orders passed by the Designated Court refusing to grant bail were not interlocutory orders and, therefore, appealable under Section 19(1) of the Act, 1987 is not acceptable and that jurisdiction is ousted but at the same time bail application can be considered under the provisions of the Special Act viz. the Act, 1987. In the light of the aforesaid judgment, this Court would not entertain the application of the petitioner for bail under Section 439 Cr PC and shall keep that part out of consideration.
8. I now consider the bail under Section 17(5) of the Act, particularly because the position of law under the said Act was little different about the jurisdiction of the High Court then after commencement of the Act, 1987. I would not like to quote the evidence collected in the diary against the petitioner and comment upon it since expression of opinion on the same may prejudice the case of the either party at trial but suffice it to say that there is enough material on record to conclude that this Court is unable to record its satisfaction that there are no reasonable grounds for believing that petitioner was not one of the conspirators. In this view of the matter, the application cannot be allowed, and the same is dismissed.
9. Learned counsel for the accused petitioner has also made a prayer that interim bail may be granted to the petitioner so that she can appear in the examination to be held by the Punjab University, Patiala for M.A. Part-I (Punjabi), which have commenced from 29th April, 1988 and are to continue till 16th May, 1988.
10. I regard, I cannot accept this prayer because there is no provision in law empowering this Court to grant interim bail in the cases like the one except that I can only make an observation to the effect that facilities must be provided to the suspects and prisoners for developing their personalities if they intend to do so, how so ever, the offence may be serious for which a suspect is landed in custody or in jail either during investigation or trial or subsequent to it, he has a right to live and develop his personality subject to the rules of the prison. If he is a student, he has a right to obtain material for reading and must be permitted to take up the examinations for further studies. The Central Govt., keeping in mind has even asked the Punjab University to provide a centre in Central Jail, Jodhpur for the prisoners for their taking up the examinations but I fail to understand, why the same facilities could not be provided to the petitioner when she was/is willing to appear in the examinations. It is a matter of common knowledge that some of the best literatures available in the world include the works of Lenin, Mahatma Gandhi Jawahar Lal Nehru, Bal Gangadhar Tilak and innumerable others which have been written while they were in jail even when they were detained by the imperialistic forces, then why the facilities should not be provided to the prisoners who are in jail in free India I hops the grievance made by the learned Counsel for the petitioner that she has not been provided facilities, is not based on proper information but if there is least truth in it, the jail authorities and State Government shall provide all facilities and would make necessary arrangements for her taking up the further examinations or if not possible to take her away to Jodhpur or to request the University to create centre in the jail where she is kept so that the best period of her life is not wasted.
11. The bail application is rejected with the aforesaid observations.