USMANBHAI DAWOODBHAI MENON & ORS. ETC. versus STATE OF GUJARAT

Citation: [1988] 3 S.C.R. 225 · Decided: 14-03-1988 · Supreme Court of India · Bench: A.P. SEN · Disposal: Case Partly allowed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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USMANBHAI DAWOODBHAI MENON & ORS. ETC. 
v. 
STATE OF GUJARAT 
MARCH 14, 1988 
[A.P. SEN AND L.M. SHARMA, JJ.) 
Terrorist & Disruptive Activities. (Prevention) ACt, 1987-
Whether the High Court has jurisdiction and power to grant bail under 
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..J.. s. 439 of Code of Criminal Procedure, 1973 or by recourse to its in-
-, herent powers under s. 482 to a person accused of an offence under 
sections 3 and 4 of the Act-The nature of restraint on power of C 
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Designated Courts to grant bail to such a person in view of limitations 
unders. 20(8) of the Act, 
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This Criminal Appeal against the judgment end order of the 
Gujarat High Court and the connected Special Leave Petitions against 
the Orders of the various Designated Courts in the State . constituted 
under the Terrorist ·& Disruptive Activities (Prevention) Act, 1987, 
raised common questions for consideration. It was enough to set out the 
facts in the appeal. There was an armed clash involving the appellants, 
as a result whereof the police apprehended the appellants and produced 
them before the Designated Court. The. appellents moved an applica-
tion for bail which was rejected by the Designated Court. 
The appellants moved the High Court under s. 439 r~ad with s. 
482 of the C<K1e. The High Court rejected the bail application on the 
ground that it had no jurisdiction to entertain such en application 
under s. 439 of the Code or by recourse to its inherent powers under 
s. 482 .. Aggrieved by the decision of the High Court, the appellants 
appealed to this Court for relief by special leave. 
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On the view the Court took as to the nature of the function of the 
Designated Courts in dealing with the bail applications within the con-
straints of s. 20(8), it was not necessary to deal with the facts of the 
connected special leave petitions directed against the orders of the diffe-
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rent Designated Courts, rejecting the bail applications. 
Allowing, the appeal and the special leave petitions partly, the 
Court, 
HELD: These cases mainly raised two questions of substantial 
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225 
226 
SUPREME COURT REPORTS 
[19881 3 S.C.R. 
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importance. The first was as to the jurisdiction and powers of the High 
Court to grant bail under section 439 of the Code of Criminal Proce-
dnre, 1973 or by recourse to its inherent powers under s. 482 to a 
person held in custody for an offence under ss. 3 and 4 of the Terrorist 
& Disruptive Activities (Prevention) Act, 1987, and secondly, as to the 
nature of the restraint placed on the power of the Designated Courts to 
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grant bail to such a person in view of the limitations placed on such 
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power under s. 20(8) of the Act. [246G-HI 
The Act being a special Act must prevail in respect of the jurisdic· 
ti on and power of the High Court . to entertain an application for bail • 
under s. 439 of the Code or by recourse to its inherent powers under 
s. 482. Under the scheme of the Act, there is complete exclusion of the ·-1 
c jurisdiction of the High Court in any case involving the arrest of any 
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person for an offence punishable under the Act or any rule made there-
under. There is contrariety between the provisions of the Act and the 
Code. Under the Code, the High Court is invested with the various 
functions and duties in relation to any judgment or order passed by a 
D criminal court subordinate to it. The Act creates a new class of offences 
called terrorist acts and disruptive activities and provides for a special 
procedure for the trial of such offences. The jurisdiction and power of a 
Designated Court are derived from the Act and it is the Act that must 
primarily be looked to in deciding the question before the Court. Where 
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an enactment provides for a special procedure for the trial of certain >· 
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offences, it is that procedure that must be followed and not the one 
prescribed by the Code. [239B-C; 240A, DI 
No doubt, the legislature has, by the use of the words 'as if it 
were' ins. 14(3) of the Act, vested a Designated Court with the status of 
a Court of Session, but the legal fiction contained therein must be t· 
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restricted to the procedure to be followed for the trial of an offence 
under the Act i.e. such trial must be in accordance with the procedure 
prescribed under the Code for the trial before a Court of Session, in so 
far as applicable. [240D·FI 
Though there is no express provision excluding the applicability of 
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s. 439 of the Code similar to the one contained in s. 

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