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27.2. And, secondly as far as prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as The Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, Patna High Court Cr.Misc. No.25276 of 2016 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court.

(emphasis mine)

66. From a reading of Section 34 of the POTA, it becomes transparent that clause (1) and clause (4) of Section 34 is in pari materia Section 14-A(1) and (2) of the newly inserted Act.

67. In the matter of State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh (supra), the State of Gujarat had appealed against an order of the Gujarat High Court, wherein, by invoking Section 439 of the Code, it had granted bail to persons accused of an offence punishable under the POTA and directed the State to Patna High Court Cr.Misc. No.25276 of 2016 release them on bail. Before the Supreme Court, it was argued, on behalf of the State, that the accused having not applied for bail in relation to offences under Sections 3 and 4 of the POTA, it was not open to the learned Judge of the High Court to entertain bail applications and grant bail and having regard to the provisions of Section 34(2) of the POTA, only a Bench of two Judges can grant bail in an offence under the POTA and since the learned single Judge has granted bail in exercise of power under Section 439 of the Code read with Section 482 of the Code, the order, granting bail, is illegal and without jurisdiction. In the said case, the Supreme Court pointed out that Section 34(1) of the POTA lays down that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to High Court, both on facts and on law.

"14. That apart if the argument of learned counsel for the respondents is accepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 Cr.P.C. in the original or concurrent jurisdiction which may be heard by a Single Judge or may prefer an appeal Patna High Court Cr.Misc. No.25276 of 2016 under Sub-section (4) of Section 34 of POTA which would be heard by a bench of two judges. To interpret a statutory provision in such a manner that a Court can exercise both appellate and original jurisdiction in respect of the same matter will lead to an incongruous situation. The contention is therefore fallacious.
15. In the present case, the respondents did not chose to apply for bail before the Special Court for offences under POTA and consequently there was no order of refusal of bail for offences under the said Act. The learned single Judge exercising powers under Section 439 read with Section 482 Cr.P.C. granted them bail. The order of the High Court is clearly without jurisdiction as under the scheme of the Act the accused can only file an appeal against an order of refusal of bail passed by 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. Even on merits the order of the High Court is far from satisfactory. Though it is a very long order running into 87 paragraphs but the factual aspects of the case have been considered only in one paragraph and that too in a very general way."