Advocates:
MUSHTAQ AHMAD

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CASE NO.:

Appeal (crl.) 888-891 of 2003

PETITIONER:

State of Gujarat

RESPONDENT:

Salimbhai Abdulgaffar Shaikh & Ors.

DATE OF JUDGMENT: 08/09/2003

BENCH:

S. Rajendra Babu & G. P. Mathur.

JUDGMENT:

JUDGMENT

G.P. Mathur, J.

1. These appeals arise on a certificate granted by the Gujarat High Court

under Article 134A read with Article 134(1)(c) of the Constitution in the

matter of grant of bail to the respondents.

2. Raising a preliminary objection, Shri Amarendera Sharan, learned

Senior Advocate, submitted that an appeal will lie to this Court from any

judgment, final order or sentence in a criminal proceeding of a High Court

on a certificate being granted in terms of Article 134(1)(c) and 134A of the

Constitution; that, an order made in a proceeding arising out of an

application for grant of bail is not a judgment, final order or sentence; that, a

judgment would mean any decision which terminates a criminal proceeding

pending before the Court and excludes an interlocutory order; that, in a

criminal proceeding an order on an application for bail is not a final order;

that, the order in question is neither a final order nor imposes a sentence;

that, therefore, the certificate issued by the High Court should be cancelled

and the appeal should be treated as incompetent.

3. There seems to be force in the contentions urged by the learned Senior

Advocate on behalf of the respondents but the settled practice of this Court

is that if on the face of it this Court is satisfied that the High Court has not

properly exercised the discretion under Article 134(1)(c), the matter may

either be remitted or this Court may exercise that discretion itself or treat the

appeal as one under Article 136 (Nar Singh v. State of U.P., 1955 (1) SCR

238, and Baladin v. State of U.P., AIR 1956 SC 181). Therefore, we do not

propose to examine this aspect of the matter any further but treat this appeal

as a proceeding arising under Article 136 of the Constitution.

Leave granted.

4. A ghastly incident took place at about 7.45 a.m. on 27.2.2002 when

the Sabarmati Express was stopped near Godhra Railway Station and a

coach was set on fire resulting in death of 59 persons and serious injuries to

48 others. An FIR was lodged on the basis of which a case was registered

as CR No. I-09 of 2002 under Sections 143, 147, 148, 149, 337, 338, 435,

120-B, 34, 153(A), 302, 307 IPC, Sections 141, 151, 152 Indian Railways

Act, Sections 3 and 4 of Prevention of Damage to Public Property Act and

Section 135(1) of the Bombay Police Act. After investigation, charge

sheets were submitted against the accused involved in the case but it was

specifically mentioned therein that investigation was still continuing. The

respondents who are accused in the case moved separate bail applications

which were rejected by the Additional Sessions Judge, Panchmahals at

Godhra on different dates between 18th and 30th January, 2003. Thereafter

bail applications under Section 439 Cr.P.C. were filed before the High

Court. On the basis of the facts revealed as a result of further investigation,

the prosecution came to the conclusion that offences under Section 3(2) and

(3) and Section 4 of the Prevention of Terrorism Act (for short ’POTA’) had

also been committed and accordingly took appropriate steps for including

the aforesaid offence. A counter-affidavit was filed on behalf of the State on

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5.3.2003 before the High Court wherein it was averred that after filing of the

charge sheets, further evidence had been collected which revealed

commission of offences under Sections 3 and 4 of POTA and applications

had already been moved on 19.2.2003 in the Court of Additional Sessions

Judge and JMFC (Railway Court) Godhra for adding Sections 3(2)