STATE OF GUJARAT versus SALIMBHAL ABDULGAFFAR SHAIKH AND ORS.

Citation: [2003] SUPP. 3 S.C.R. 414 · Decided: 08-09-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
STATE OF GUJARAT 
v. 
SALIMBHAl ABDULGAFFAR SHAIKH AND ORS. 
SEPTEMBER 8, 2003 
[S. RAJENDRA BABU AND G.P. MATHUR, JJ.] 
Prevention of Terrorism Act, 2002-Sections 3(2); 3(3); 4; 34 and 
49--0.ffences under the Act-Bail-Jurisdiction of High Court-Applications 
under Section 439 Cr. PC before High Court-Single Judge of High Court 
C allowing bail-Legality of-Held, order of High Court is without 
jurisdiction-Under the Act, there is complete exclusion of jurisdiction of 
High Court to entertain a bail application under Section 439 Cr.P.C.-The 
Act provides for an appeal before a Division Bench of High Court against 
an order of refasal or grant of bail passed by the Special Court-Existence 
D of an order of the Special Court is sine qua non for approaching the High 
Court-Code of Criminal Procedure, 1973-Section 439. 
Appeal-Scope of-Discussed 
Interpretation of Statutes-Held, not to be done in abstract but 
E construed keeping in mind the whole enactment and the dominant purpose 
that it may express. 
Constitution of India, 1950-Articles l 34A; l 34(I)(c); 136---0rant of 
Certificate by High Court-Discretion not properly exercised-Held, the 
F matter may either be remitted or Supreme Court may exercise that 
discretion itself or treat the appeal as one under Article 136-Practice and 
Procedure. 
A train was stopped near a railway station and a coach was set 
on fire resulting in death of59 persons and serious injuries to 48 others. 
G A case was registered under the specific provisions of Indian Penal 
Code, Indian Railways Act, Prevention of Damage to Public Property 
Act and Bombay Police Act and a charge-sheet was filed. The accused-
respondents moved bail applications before the Additional Sessions 
Judge which were rejected. Thereafter, bail applications were filed 
H before High Court under Section 439 Cr.P.C. In the meanwhile, on the 
414 
STATE v. SALIMBHAI ABDULGAFFAR SHAIKH 
415 
basis of the facts revealed as a result offurther investigation, prosecution A 
came to the conclusion that offences under the Prevention of Terrorism 
Act, 2002 (POT A) has also been committed. Accordingly appropriate 
steps were taken for including the aforesaid offences in the charge-
sheet. Thus, it was averred that Single Judge of the High Court who 
was seized of the matter had no jurisdiction to hear the bail applications B 
in view of the specific provisions of POTA. The High Court, however, 
allowed the bail applications; and also granted certificate under Article 
134A read with Article 134(1)(c) of the Constitution. Hence, the 
present appeals. 
On behalf of the appellant, it was contended that the accused C 
having not applied for bail under POTA before the Special Judge, it 
was not open to the High Court to directly entertain their bail 
applications; that only a Bench of two judges of the High Court could 
grant bail in an offence under POTA, therefore, bail granted by a 
Single Judge of High Court was not only illegal but also without D 
jurisdiction. 
On behalf of the respondents, a preliminary objection was raised 
that an appeal would lie to the Supreme Court from any judgment, 
final order or sentence in a criminal proceeding of a High Court; that E 
in a criminal proceeding an order on an application for bail is not a 
final order; that therefore the appeal should be treated as incompetent. 
On merits it was contended that the power of the High Court to grant 
bail under Section 439 Cr.P.C. has not been taken away by POT A and 
consequently the Single Judge had the jurisdiction to grant bail to the 
respondents in exercise of the power conferred by the aforesaid F 
provision. 
Allowing the appeals, the Court 
HELD : I.I The respondents did not choose to apply for bail 
before the Special Court for offences under POTA and consequently G 
there was no order of refusal of bail for offences under the said Act. 
The order of Single Judge of the High Court, exercising powers under 
Section 439 read with Section 482 Cr.P.C. and granting the bail is 
clearly without jurisdiction as under the sche.ne of the Act the accused 
can only file an appeal against an order of refusal of bail passed by H 
416 
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. 
A 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. (424-E, F) 
1.2 The argument that the power of the High Court to grant bail 
B under Section 439 Cr.P.C. has not been taken 

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