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56. Notwithstanding, therefore, the fact that while functioning as a trial Court, the Special Court or, in the absence of constitution of a Special Court, a Court of Session shall be treated 'as if it were a Court of Session', the fact of the matter, in the light of A. R. Antulay (supra), remains that irrespective of the fact as to whether a Special Court has been constituted or not under the NIA Act, a Special Court, if constituted, or the Court of Session, if the Special Court has not been constituted, is, under the NIA Act, not a Court of Session, this Special Court does not suffer from the trappings of a Court of Session and, while trying an offence, it has to follow, so far as applicable, the procedure for trial of a sessions case, as envisaged by the Code. The Special Court, under the NIA Act, will, however, remain, for the purposes, other than trial, a Court of original criminal jurisdiction. Necessarily, therefore, such a Court, being a Court of original jurisdiction, is the appropriate Court (and not the Court of Magistrate), which can authorize detention of a person accused of having committed an offence under the NIA Act and remand him to custody, police or judicial, in terms of the provisions of Section 167 (2) of the Code. There is no dispute that a Special Court has been constituted under the NIA Act and the orders, which stand impugned in this appeal were passed by the Special Court, NIA.

75. Having, thus, settled the fact that under the NIA Act, the Special Court exercises the power to grant, or refuse, bail, by taking recourse to Section 437 of the Code and not any other provisions of the Code, not even Section 439 thereof, or under any of the provisions of the NIA Act, we, now, turn to the question as to whether a High Court, within the scheme of the NIA Act, can take resort to Section 439 of the Code, particularly, when the Court of Session, while acting as a Special Court, under the NIA Act, is denuded of its power contained in Section

( 81 ) There are no corresponding provisions, in the NIA Act, as were present in Section 20 (8) and Section 20 (9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-Section (8) and/or sub-Section (9) of Section 20 of the TADA Act) no longer find place in the NIA Act, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a 'court' other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-Section (1) of Section 437 CrPC, are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to Section 43-D (5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar being that the Special Court shall not release the accused on bail or on his own bond if the Court, on perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are 'reasonable grounds' for believing that the accusation against such person is prima facie true.

100. It may be borne in mind that there are no corresponding provisions, in the NIA Act, as were present in Section 20(8) and Section 20(9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-Section (8) and/or sub-Section (9) of Section 20 of the TADA Act) no longer find place in the NIA Act, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a ‗Court‟ other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-Section (1) of Section 437 CrPC, are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to Section 43-D(5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar being that the Special Court shall not release the accused on bail or on his own bond if the Court, on perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are ‗reasonable grounds' for believing that the accusation against such person is prima facie true.