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2004 DIGILAW 1242 (ALL)

ABDUL HAQ v. STATE OF U P

2004-07-09

IMTIYAZ MURTAZA, S.K.AGARWAL

body2004
Heard learned Counsel for the applicant-appellant and learned Additional Advocate General assisted by Shri K. N. Bajpai, learned A. G. A. 2. We have gone through the affidavit filed in support of application under Section 5 of Limitation Act. The basis ground taken by the applicant-appellant for condonation of six days delay is that he is a poor person and was out of his native place i. e. District Meerut, village Kaili, P. S. Daurala for two months to Delhi in order to win bread and butter for his family. He has a family. In response to that the prosecution has come out in para-5 of the counter-affidavit that enquiry revealed that the applicant never went to Delhi. Where he did work for the said period was not worked out. Be that as it may. The failure of the investigating agency to work out where the labour work was done during this period is not material for our consideration. The delay is only of six days. It is a matter, which is to be taken into consideration. We are convinced that the reason given by the applicant for the delay cannot be termed to be improper or illegal in any manner. We intend to grant liberty to this applicant. 3. The other contention raised on behalf of the State by learned Additional Advocate General is that the provisions of Section 5 of the said Act are wholly in applicable to the enactment in question. We beg to defer with the contention raised before us. If this was the inclination of the Parliament there would have no impediment or any fetter in its way that would have prevented it to incorporate such a provision in the enanctment itself in Section 34 which provides for an appeal against such an interlocutory order. The power to be exercised by the Court in an appeal are wide enough. It permits the Courts to go in depth into the facts apart from the question of laws. The advisory board was created by an amendment by the Parliament. 4. Since earlier there was no such re-considerative body to any hazardous incarceration under the provisions of the impugned Act of any person. The shortcoming is intended to be met by providing for an appeal. The offences created by this Act are serious and very heinous in nature. The acts encompassed by the enactment border sedation. 4. Since earlier there was no such re-considerative body to any hazardous incarceration under the provisions of the impugned Act of any person. The shortcoming is intended to be met by providing for an appeal. The offences created by this Act are serious and very heinous in nature. The acts encompassed by the enactment border sedation. Acts causing internal insecurity, causing dismemberment of any part, disenchantment amongst the population against any popular Government and disaffection are to be taken care of by the act. The country thereby runs through a perpetual risk to its unity and security. These person resort to violence by taking to arms. It also endangers peace and progress. The Parliament was conscious of its abuse by the States also. It was also conscious of the fact that there are prospects of false implication under this enactment of those who are not conducive to any Government or any member of its. Initially until the pronouncement of the Apex Court Judgment a person was necessarily to be detained once the charge under the provision of this enactment are levelled against him for a minimum period of 12 months before any Court, the Special Court or appellate Court could have entertained their bail application or appeal in its rejection. Therefore, in its wisdom Parliament had inducted into the enactment Section 34 providing wider power to the appellate Court than whatever provided under the similar provisions in the Code of Criminal Procedure regarding bail. This is a new remedy provided to a person accused under this Act. No such appeal is provided against the order of accepting or rejecting bail in any other enanctment though the powers granted by the Code of Criminal Procedure, 1973 are widest possible. Virtually the enactment i. e. Cr. P. C. has made the Courts especially the Sessions Courts and High Courts sole repository without any serious fetter but for some restrictions imposed by Section 437 Cr. P. C. apart from it guiding factors and principles defined by the Apex Court in 1962 SC 235. 5. In such a situation the contention raised on behalf of the State by learned Additional Advocate General that the provisions of Limitation Act are inapplicable to appeal under Section 34 of the enactment are, in our opinion, not appreciable and acceptable. P. C. apart from it guiding factors and principles defined by the Apex Court in 1962 SC 235. 5. In such a situation the contention raised on behalf of the State by learned Additional Advocate General that the provisions of Limitation Act are inapplicable to appeal under Section 34 of the enactment are, in our opinion, not appreciable and acceptable. As earlier said had it been the intention of the Parliament nothing could have stopped it from inducing such a provision therein. It did not do so clearly makes out that it had no such intention. It, therefore, clearly permits the liberty to the Court to entertain such application under the Limitation Act or under the impugned Act by virtue of the proviso of sub-section (5 ). Induction of the proviso makes out clearly the intention of the legislature. Technicalities, therefore, must not some over the good intention of the legislature. Whether it is an application under Section 5 of Limitation Act or under Section 34 (5) of the impugned Act it makes no difference. It is advisable certainly that such an application be made under Section 34 (5) and if the explanation offered by the applicant preferring such an appeal is reasonable liberty be granted to him to contest his incarceration under the provision of the Act. 6. Coming to the second contention that since the first appeal of the applicant was already dismissed by this Court the second appeal against such subsequent fresh order is not maintainable. We are sorry to defer on this count also. The fact remains that neither the trial Court nor the appellate Court (this Court) had determined the appeal or the bail application on merit. The bail application was rejected by the trial Court on the ground that it is premature. 12 months did not expire. 7. In the view of the Apex Court Judgment passed in the case of Peoples Union for Civil Liberties & Anr. v. Union of India, AIR 2004 SC 456 , this Court had remanded the case back or had granted the liberty to the applicant to go back to the trial Court i. e. Special Judge, POTA. The special Judge POTA has now to determine the bail application on merit taking into consideration all available facts including non- compliance of provisions which are by their inclination mandatory in nature. 8. The special Judge POTA has now to determine the bail application on merit taking into consideration all available facts including non- compliance of provisions which are by their inclination mandatory in nature. 8. In this view of the matter we cannot deny the liberty to the applicant from preferring his appeal in this Court a second time. Had this Court determined the appeal or refused him the bail on merit, certainly the argument would have some tenability and we would have considered it. In the changed context that are being available to us it was not to be. The contention is devoid of any free and is accordingly discarded. 9. In this view of the matter as we have discussed above the explanation offered, in our opinion, is acceptable. We allow the application for condonation of delay filed under the Limitation Act and condone the delay of six days in filing of this appeal. Appeal allowed. .