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1993 Supreme(All) 340
HIGH COURT OF ALLAHABAD
G.S.N.Tripathi
LAKHVINDER ALIAS LAKHA SINGH
Versus
STATE OF U P
Decided On : 14 July 1993
Crl. Misc. Bail Application No. 8008 of 1993
A.K.AVASHTHI, V.C.TIWARI,
The High Court has no jurisdiction to entertain a bail application under the Terrorist and Disruptive Activities (Prevention) Act, 1987, as the Act specifically excludes the applicability of Section 439 of the Code of Criminal Procedure, which deals with bail.
Headnote:
BAIL - TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 - SECTION 4 - JURISDICTION OF HIGH COURT - NO JURISDICTION TO ENTERTAIN BAIL APPLICATION UNDER TADA - CASE UNDER TADA PRIMA FACIE MADE OUT.
Fact of the Case:
The petitioners were arrested under Section 216-AS IPC and 3/4 Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) for allegedly conspiring to establish Khalistan and harboring terrorists. They filed a bail application in the High Court, arguing that the High Court had jurisdiction to hear the application and that even if the allegations in the FIR were true, no case under TADA was made out.
Finding of the Court:
The High Court held that it had no jurisdiction to entertain the bail application under TADA, as the Act specifically excluded the applicability of Section 439 of the Code of Criminal Procedure, which deals with bail. The Court also found that a prima facie case under TADA was made out, as the petitioners' alleged actions constituted disruptive activities and secessionist claims.
Issues: 1. Whether the High Court had jurisdiction to entertain the bail application under TADA. 2. Whether a prima facie case under TADA was made out.
Ratio Decidendi: 1. The High Court relied on the Supreme Court's decision in Usmanbhai Dawoodbhai v. State of Gujarat, which held that Designated Courts, not High Courts, have jurisdiction to grant bail in cases under TADA. 2. The Court interpreted Section 4 of TADA and found that the petitioners' alleged actions, such as conspiring to establish Khalistan and harboring terrorists, constituted disruptive activities and secessionist claims, which are covered by the Act.
Final Decision: The High Court dismissed the bail application, holding that it had no jurisdiction to entertain the application and that a prima facie case under TADA was made out.
This is an application for bail by Lakhvinder alias Lakha Singh and Nishan Singh alias Sona, who have been intetned in Case Crime No. 88 of 1991, under Section 216-AS IPC and 3/4 Terrorist and Dis ruptive Activities (Prevention) Act, 1987 (TADA) on the challan report sub mitted by P. S. Milak Khanam, District Rampur.
2. According to FIR lodged by Sri Laxmi Chandra Verma, S. O. at 0 30 a, m. on 14-11-1991 at P. S. Milak Khanam, District Rampur, the police party surrounded the house of the petitioner in the night of 13/14- 11-1991. Some persons were talking inside the house and following words inter alia were uttered by them :
HINDi
5. After hearing these words, the S. O. was satisfied that this was a gang of terrorists. After giving warning to them not to escape, the S. O tried to arrest these persons but four persons escaped. The accused-applicants were arrested on the spot. They allegedly confessed their guilt before the police to the effect that the four escaped persons were Sikhs. They were terrorists and they used to visit their house quite often. On that date, they had been staying since 7 p. m. at their house. These petitioners had also made contributions towards the formation of Khalistan It was in this manner that the case was launched against them.
4. In this bail application, two points have been stressed before me : (1) This Court has jurisdiction to hear this bail application and (2) Even if all the words used in the FIR (quoted supra) are believed to be true, no case under the provisions of TADA is made out. Hence this Court can dispose of this bail application.
5. I have heard the learned Counsel for the parties at considerable stretch and perused the record. I find that there is no force in this application and it deserves to be dismissed.
Point No. 1 :
6. My attention has been invited to a pronouncement of the Honble Supreme Court in Usmanbhai Dawoodbhai v. State of Gujarat, 1988 Cr LJ Vol. I, page 938. This was also a case under the provisions of this Act. While discussing the legal provisions in paragraph 19, the Honble Supreme Court observed as follows :
"though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20 (7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punish able 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 placed limitations on such power. This is made explicit by Section 20 (9) which enact that the limitations on granting of bail specified in Section 20 (8) are in addition to the limitations under the Code or any other law for the time being in force. But it does not necessarily follow that the power of a Designated Court to grant bail is reletable to Section 439 of the Code. It cannot be doubted that a Designat ed Court is a Court other than the High Court or the Court of Session within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not
only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20 (8) of the Act. "
Again at page 948 in paragraph 22, the following observations were made by the Honble Supreme Court:
"we must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code. "
7. In this view of the pronouncement made by the apex Court, this Court has no jurisdiction to entertain the application for bail under the provisions of TADA. The same situation arose before Gujarat High Court in Suresh Ramtirath Yadav v. State of Gujarat, 1990 (2) Cr LJ page 1834. The Honble Judges held that even a writ petition under Article 226 of the Cons titution alleging violation of Article 21 of the Constit
