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4. For deciding the question whether the High Court has jurisdiction to entertain an application under Section 439 or 482 of the Cr. P.C. in a case where the allegations against the accused are under the provisions of the Terrorist Act, it would be necessary to refer to certain provisions of the Terrorist Act.

5. The Terrorist Act is framed for a specific object for making special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. Its operation is limited for a period of two years from the. date of its commencement. Section 2(1)(b) of the Terrorist Act defines the phrase "Designated Court" meaning thereby a Designated Court constituted under Section 7 of the Terrorist Act. Section 2(1)(d) of the Terrorist Act defines "High Court" in relation to a Designated Court and states that "High Court", in relation to a Designated Court, means the High Court within the territorial limits of whose jurisdiction such Designated Court is proposed to be, or is constituted. Section 2(1)(e) of the Terrorist Act defines "Public Prosecutor" meaning thereby a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor appointed under Section 11 and includes any person acting under the directions of the Public Prosecutor. Section 7 of the Terrorist Act provides that the State Government may for the whole or any part of the State constitute one or more Designated Courts. The Designated Court shall be presided over by a Judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court.

14. Entire Criminal Procedure Code is not made applicable but some specific provisions are made applicable or some provisions of the Criminal Procedure Code with modifications are made applicable.

15. The following provisions of the Terrorist Act would make it clear that the entire Criminal Procedure Code is not made applicable. Under Section 8 of the Terrorist Act a Designated Court is entitled to sit for any of its proceedings at any place, other than the ordinary place of its sitting, in the State in which it is constituted. Sub-section (2) of Section 9 of the Terrorist Act provides for transfer of case from one Designated Court to another Designated Court. That power is conferred upon the Central Government and is to be exercised with the concurrence of the Chief Justice of India. So it is clear that the provisions of transfer which are there in the Criminal Procedure Code would not be applicable. Under Section 10 of the Terrorist Act the jurisdiction is conferred upon the Designated Court to try any other offence with which the accused may, under the Criminal Procedure Code, be charged at the same trial, if the offence is connected with such other offence, but for this provision the Designated Court would have no jurisdiction to try the accused for any other offence. Other important provision is Section 11 of the Terrorist Act which provides that for every Designated Court, the State Government shall appoint a person to be the public prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors or Special Public Prosecutor. That means the Public Prosecutor appointed under the Criminal Procedure Code would have no right to conduct the trial or appear before the Designated Court as a Public Prosecutor unless he is specifically appointed under Section 11 of the Terrorist Act. As discussed above, same is the position with regard to the procedure prescribed under Section 12 of the Terrorist Act. The provisions of appeal and revision are not made applicable. In this view of the matter, it is amply clear that the entire Criminal Procedure Code is not made applicable to Terrorist Act but some provisions of the Criminal Procedure Code are made applicable with or without modifications. Therefore there is no reason to hold that provisions of Section 439 or 482 of the Cr. P. C. are applicable to a person accused of an offence punishable under the Terrorist Act.

16. Even if we refer to Section 17 of the Terrorist Act, the same is the position. Sub-section (1) of Section 17 of the Terrorist Act provides that notwithstanding anything contained in the Criminal Procedure Code or any other law, every offence punishable under the Terrorist Act or any rule made thereunder shall be deemed to be a cognizable offence within the meaning of Clause (c) of Section 2 of the Cr. P. C. and "cognizable case" as defined in that clause shall be construed accordingly. Sub-section (2) of Section 17 of the Terrorist Act makes a specific provision that Section 167 of the Cr. P. C, shall apply in relation to a case involving an offence punishable under the Terrorist Act or any rule made thereunder subject to the modifications provided therein. In our view, this clearly indicates that entire provisions of the Criminal Procedure Code with regard to bail, remand or sending the accused to judicial custody are not made applicable. Otherwise there was no necessity of providing that Section 167 of the Cr. P. C. shall apply in relation to the case involving the offence punishable under the Terrorist Act. Sub-section (3) of Section 17 of the Terrorist Act provides that Sections 366 to 371 and Section 392 of the Cr. P. C. shall apply in relation to a case involving an offence triable by a Designated Court subject to the modifications that references to "Court of Session" and "High Court", wherever occurring therein, shall be construed as references to "Designated Court" and "Supreme Court", respectively. Sections 366 to 371 of the Cr. P. C. deal with submission of death sentence for confirmation. Section 392 of the Cr. P. C. deals with the procedure where Judges of the Court of appeal are equally divided. By Sub-section (4) of Section 17 of the Terrorist Act it has been provided that concept of anticipatory bail is not at all applicable and it provides that nothing in Section 438 of the Cr. P. C. shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the Terrorist Act or any rule made thereunder. Sub-section (5) of Section 17 of the Terrorist Act begins with the non obstante clause that notwithstanding anything contained in the Criminal Procedure Code, no person accused of an offence punishable under the Terrorist Act or any rule made thereunder shall, if in custody, he released on bail or on his own bond unless--

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that (i) there are reasonable grounds for believing that he is not guilty of such offence and (ii) he is not likely to commit any offence while on bail.

This Sub-section (5) of Section 17 of the Terrorist Act lays down entirely different criteria for deciding the bail application. In view of this sub-section the provisions of bail provided under the Criminal Procedure Code would not be applicable and the bail application is required to be decided as per the criteria laid down under Sub-sections (5) and (6) of Section 17. Nowhere it is provided that Section 439 of the Code is applicable. Therefore, in our view, there is no question of applying Section 439 of the Code and entertain the application under it. As against this, reliance was placed upon Sub-section (6) of Section 17 of the Terrorist Act and it was contended that Sections 437 and 439 of the Cr. P. C. would be applicable. In our view, it is total misreading of Sub-section (6) of Section 17 of the Terrorist Act. Sub-section (5) and Sub-section (6) of Section 17 of the Terrorist Act are to be read together. Sub-section (6) of Section 17 of the Terrorist Act lays down that the limitations on granting of bail specified in Sub-section (5) of Section 17 of the Terrorist act are in addition to the limitations under the Criminal Procedure Code or any other law for the time being in force on granting of bail. So the limitations which are provided in Section 437 of the Cr. P. C. are also made applicable by Sub-section (6) of Section 17 of the Terrorist Act. But it cannot be said that Section 439 of the Cr. P. C. which provides that the High Court or the Court of Session may direct that any person accused of an offence and in custody be released on bail if the offence is of the nature specified in Sub-section (3) of Section 437, is applicable. The limitations on granting bail are not provided under Section 439 of the Cr. P. C. Limitations are provided under Section 437 of the Cr. P. C. This would be clear by referring to Sub-sections (1) and (3) of Section 437 of the Cr. P. C. Sub-sections (1) and (3) of Section 437 of the Cr. P. C. read as under: