Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 h.ad sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. n
10. The principal submission of Mr. Ram Jethmalani, learned senior counsel appearing for the applicant has been H based on the premise that the order granting or refusing a bail STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 151 MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.] 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 ….. n
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 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- (2013) 11 S.C.R. (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 C 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 D 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." In view of this provision, the application for bail by the a~cused 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 H judgment, sentence or order including an interlocutory order of STATE OF A. P. THR. 1.G. NATIONAL INV. AGENCY v. 153 MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.] 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 c only, and to no other court as 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 ". ~lthough 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 [2013] 11' S.C.R. 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 B 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 c 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 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, E 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 G granting or refusing bail under Section 21(4) of the Act 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 H original application under Section 21 (4) of the MCOC Act read STATE OF A. P. THR. l.G. NATIONAL INV. AGENCY v. 155 MD. HUSSAIN @ SALEEM [H.L. GOKHALE, J.] 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 (28of1987) 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 D 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 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) sec 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 (2013] 11 S.C.R. A 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 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 E (supra) was further confirmed by this Court in State of Gujarat v. Salimbhai reported in 2003 (8) sec 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 F 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 above), and which proviso has no relevance in the present case. It was specifically contended G 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:- STATE OF A. P. THR. 1.G. NATIONAL INV. AGENCY v. 157 MD. HUSSAIN @ SALEEM (H.L. GOKHALE, J.] "13. Section 20 of TADA contained an identical A 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 conseq~ently remained intact was repelled in Usmanb/;lai Dawoodbhai Menon v. State of Gujarat. Having regard to the scheme of TADA, it was held that there was complete exclusion of the jurisdiction bf the High Court to entertain a bail application under Section 439 of'Jhe Code. This view was reiterated in State of c 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 Sectio.n 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 par~ 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 bf 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 G 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, A 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:- (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 c <?larification 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. 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. B.B.B. Petitions dismissed.