ORDER
1. This appeal has been directed under Section 34(1) of the Prevention of Terrorism Act, 2002 (hereinafter called POTA) against the order dated 28-9-2002 passed by the Sessions Judge/Special Judge, Muzaffarnagar rejecting the bail application of the appellant detained under Section 3 of POTA as well as Section 3 of the Official Secrets Act and Sections 121, 121-A and 123I. P. C. relating to P. S. Kotwali City District Muzaffarnagar.
2. On the basis of a secret information that certain persons are engaged in terrorist activities and had their relations with the Laskar-E-Toiba and Field Intelligence Unit, Pakistan and they were supplying secret informations to the above organizations, the police of P. S. Kotwali city district Muzaffarnagar on the night of 13/14-7-2002 apprehended Gaffar, Gayur and Jhon Mohd from their houses and brought them to police station Kotwali. Smt. Shakeela was also brought at the police station from her house on 14-7-2002. However, nothing could be elicited from them and they were released. Subsequently, again information was received that the above persons are active members of terrorist organizations Laskar-E-Toiba and Field Intelligence Unit, Pakistan. On the above information the Station Officer P. S. Kotwali along with police force reached emergency unit of district hospital and on the pointing out of informer apprehended Gaffar. Gayur, Jhon Mohd and Smt. Shakeela. Certain objectionable documents and magazines were recovered from their possession. The above persons also admitted that they were sending secret information on telephone and fax to Laskar-E-Toiba and Field Intelligence Unit of Pakistan. During investigation of the case appellant Abdul Haq was also arrested on 19-7-2002 and two books were recovered from his possession and he told that it was given to him by his son who was serving in the military. He also admitted that he was sending secret informations to the members of Laskar-E-Toiba.
3. During investigation of the case the appellant Abdul Haq moved an application for bail on the ground that no offence is made out against him. The learned Sessions Judge/Special Judge held that admittedly two secret papers were recovered from possession of the appellant. However, the contention of learned counsel for the appellant was that the papers were given to him by his son who is presently working in the Army. The papers recovered from his possession were sent to Military Authority for inspection and report, whether these papers were secret or not or whether these papers were anti national or not and whether the accused got the possession of these papers from valid source. That unless the reply is in favour of the accused it cannot be said that the accused is not guilty of committing the above offence and therefore at that stage the provisions of Section 49 of the POTA is not applicable. With these findings he rejected the application vide order dated 29-9-2002.
4. Aggrieved with the above order the appellant has come up in this appeal.
5. We have heard Sri Prakash Chandra Srivastava learned counsel for the appellant and the learned A. G. A. and have gone, through the record.
6. The learned counsel for the appellant contended that the learned Sessions Judge/Special Judge vide his letter dated 27-9-2002 sent the documents recovered from the appellant to Commanding Officer Liaison Unit and the above letter was replied on behalf of Commanding Officer Liaison Unit Meerut Cantt. Meerut. It showed that the books recovered from the Ex-Hawaldar Abdul Haq were issued to the individual on payment from Rajput Riffle Regiment Centre and the books contains no information, which could cause damage to the national security. But before waiting for reply of his letter dated 27-9-2002 the learned Sessions Judge/Special Judge wrongly rejected the bail application on 27-9-2002.
7. Learned A. G. A. contended that the bail application moved by the appellant before the Sessions Judge/Special Judge was premature as in view of the proviso to Section 49(7) of the POTA, no bail application is maintainable before the expiry of a period of one year from the date of detention of the accused and therefore, the bail application was rightly rejected.
8. However, the learned counsel for the appellant contended that the bail application was moved in the month of September 2002 and against the order of rejection of bail application only appeal lies to this Court and by this time period of one year has lapsed and therefore, the bail application is maintainable.
9. Having considered the relevant provisions of POTA and submissions of the learned counsel for the parties we find that the bail application before the Sessions Judge/Special Judge was premature. The relevant provisions of Section 49 of the POTA read as under :–
49. “(5) Nothing in Section 438 of the Code (Criminal Procedure Code) shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.
(6) 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 the Court gives the Public Prosecutor an opportunity of being heard.
(7) Where the Public Prosecutor opposes the application of the accused to release on bail no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the Court is satisfied that there are grounds for believing that he is not guilty of committing such offence:
Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of Sub-section (6) of this section shall apply.”
10. From the reading of above section it is clear that the power of granting bail has been provided in Sub-section (6) of Section 49 of the POTA. The proviso to Sub-section (7) clearly provides a bar on the maintainability of the bail application before expiry of a period of one year from the date of detention of the accused for the offence under this Act.
11. Validity of provisions of Section 49(7) of the POTA and its proviso were challenged before the Apex Court in the case of People’s Union for Civil Liberties v. Union of India, (2003) 10 JT (SC) 70 : (AIR 2004 SC 456). After considering the various decisions the Apex Court held as below :– (Paras 67 6168)
“It is contended that this proviso to Section 49(7) of POTA is read by some of the Courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the Legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Section 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that public prosecutor had to be given an opportunity of being heard before releasing the accused on ball and if he opposes the application, the Court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that proviso is added which means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the Court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA.
Proviso to Section 49(7) provides that the condition enumerated in Sub-section (6) will apply after the expiry of one year. There appears to be an accidental omission or mistake of not including the word ‘not’ after the word shall and before the word ‘apply’. Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after period of one year. At the same time, proviso does not prevent such an accused to approach the Court for bail in accordance with the provisions of POTA under section 49(6) and (7) thereof. This interpretation is not disputed by the learned attorney general. Taking into account of the complexities of the terrorism related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49″
12. Thus, it is clear that validity of provisions of Section 49(6) and proviso to Section 49(7) has been upheld by the Apex Court and the restriction created in the proviso will fully apply to this case. Therefore, the application of the appellant for bail before the Sessions Judge/Special Judge before the expiry of a period of one year was premature.
13. The contention of learned counsel for the appellant was that the period of one year has already expired and this Court is hearing the bail application and therefore, can grant bail considering the merit of the case. We find no force in the above contention.
14. The Apex Court held in the case of State of Gujarat v. Salimbhai Abdulgaffur Shaikh, (2003) 47 All CC 855 : (AIR 2003 SC 3224 : 2003 Cri LJ 4348 Paras 6, 8 & 9) that Sub-section (1) of Section 34 of ‘POTA’ lays down that an appeal shall lie from any judgment, sentence or order not being in interlocutory order of a Special Court to the High Court both on facts and law and in view of Sub-section (2), the appeal has to be heard by a bench of two judges. Normally an order granting or refusing bail is an interlocutory order and no appeal would lie. However, in view of Sub-section (4) of Section 34 an appeal shall lie to the High Court against such an order. Under the scheme of ‘POTA’ there is a clear departure in the matter of grant of bail from that of Code of Criminal Procedure. The provisions regarding bail in Code of Criminal Procedure are contained in Section 436 to 439. Sub-section (1) of Section 439 confers power upon the Court of Session and High Court to grant bail to any person accused of having committed a non-bailable offence. Sub-section (2) of Section 439 deals with cancellation of bail and provides that any person who has been released on bail under Chapter XXXIII may be arrested and committed to custody. There is no provisions for appeal under the Code of Criminal Procedure against an order refusing or granting bail……………………
Sub-section (4) of Section 34 of the POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word ‘appeal’ is used both in Code of Criminal Procedure and Code of Civil Procedure and in many other Statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning …………….
Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court, and in view of express language used in Sub-section (1) of Section 34 of ‘POTA’ the appeal would lie both on facts and on law. Therefore, even an order granting bail can be examined on merits by the High Court without any kind of factors on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. It is, therefore, evident that the provisions of ‘POTA’ are in clear contradistinction with that of Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused 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”.
15. In view of above decision it is clear that the High Court cannot directly entertain any application for bail and only appeal against refusal of bail lie before this Court. Therefore, this Court cannot directly exercise power of granting bail.
16. In view of our above discussion we find that the bail application was rightly rejected by the Sessions Judge/Special Judge as it was premature and the appeal has no force and is liable to be dismissed.
17. Since we have dismissed the appeal on the ground of maintainability of the bail application before the Sessions Judge/Special Judge we are not required to discuss the merit of the case.
18. The appeal having no force is accordingly dismissed.