JUDGMENT I.A. Ansari, J. 1. The present three applications have been made, under Section 439Code of Criminal Procedure, seeking bail by the accused-Petitioners, namely, 1. Redaul Hussain Khan, 2. Ahshringdaw Warisa @ Partha Warisa and 3. Md. Sameer Ahmed, in connection with National Investigation Agency Case No. 01 of 2009 (Corresponding to Basistha Police Station Case No. 170 of 2009) under Sections 120(B)/121/121(A) IPC read with Section25(1B)(A) of Arms Act and Sections 17/18/19 of the Unlawful Activities (Prevention) Act. 2. By this common order, 1 propose to dispose of all the three Bail Applications inasmuch as all the three Bail Applications, involving identical questions of law, have been, on the request made by the learned Counsel for the parties, heard together. 3. The facts, giving rise to these Bail Applications, may, in brief, be set out as under: (i) Basistha P.S. Case No. 170/2009, under Section 120B/121/121(A) IPC read with Section 25(1B)(A) Arms Act, was registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01.04.2009, at about 4-00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 were intercepted at 14th Mile GS. Road, Guwahati, and searched, both the accused, suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, and two pistols were recovered, the money being meant for purchase of arms and ammunitions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produced before the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused aforementioned were remanded to police custody. (ii) On 18.05.2009, both the accused were granted bail by the High Court, in exercise of its powers under Section 439 Code of Criminal Procedure, in Bail Application No. 1637/2009. (iii) On 31.05.2009, Mohit Hojai, the then Chief Executive Member, N.C. Hills Autonomous Council, and R.H. Khan, Deputy Director, Social Welfare Department, N.C. Hills, along with the Liaison Officer, N.C. Hills Autonomous Council, were arrested by Assam Police and they were produced before the Chief Judicial Magistrate, Kamrup, and the Court remanded them to police custody. (iii) On 31.05.2009, Mohit Hojai, the then Chief Executive Member, N.C. Hills Autonomous Council, and R.H. Khan, Deputy Director, Social Welfare Department, N.C. Hills, along with the Liaison Officer, N.C. Hills Autonomous Council, were arrested by Assam Police and they were produced before the Chief Judicial Magistrate, Kamrup, and the Court remanded them to police custody. (iv) On 01.06.2009, the Central Government, in exercise of its power under Section 6(5), read with Section 8 of the National Investigation Agency Act, 2008 (in short, 'the NIA Act'), directed investigation of the case by the National Investigation Agency (in short, 'the Agency'). In terms of the directions, so issued by the Central Government, the Agency registered a case under the NIA Act, the Case being NIA Case No. 1/2009. Before, however, registration of the case aforementioned by the Agency, three more persons, namely, 1. Mihir Barman @ Jewel Garlossa @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were arrested by the Assam Police at Bangalore, in connection with Basistha Police Station case aforementioned. On 05.06.2009, the Agency moved the Chief Judicial Magistrate, Kamrup, and filed FIR in the NIA Case No. 1/2009 aforementioned. On 06.06.2009, the persons were, on being produced before the Chief Judicial Magistrate, Kamrup, remanded to police custody. In terms of the order, passed by the Chief Judicial Magistrate, on 06.06.2009, Basistha P.S. Case No. 170/2009 aforementioned was tagged with the NIA Case No. 1/2009 and, on the basis of the application made by the Agency, the Court allowed accused Mohit Hojai and R. H. Khan to be taken into custody by the Agency for a period of 10 days and the three accused, namely, 1. Mihir Barman @ Jewel Garlossa @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were remanded, for a period of 14 days, to the custody of the Agency. (v) On 11.06.2009, on the prayer of the Agency, the Court of the Chief Judicial Magistrate, Kamrup, added Section17/18/19 of the Unlawful Activities (Prevention) Act, 1967, to the NIA Case No. 1/2009 aforementioned and, on the prayer of the Agency, the Court of the Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in exercise of its power under Section 167 of the Code of Criminal Procedure, on the ground that no court has so far been constituted under the NIA Act. (vi) These three Bail Applications have been filed, seeking bail of the accused, by invoking the High Court's jurisdiction under Section 439 Code of Criminal Procedure. None of the accused-Petitioners applied for bail to the Chief Judicial Magistrate, Kamrup; rather, they have applied for bail, directly, to this Court under Section 439 Code of Criminal Procedure. Are these bail applications maintainable? 4. At the root of the controversy, in these Bail Applications, therefore, lies the question as to whether a High Court can invoke provisions of Section439 Code of Criminal Procedure for the purpose of granting bail to a person, who is in custody on the allegation of having committed an offence under the NIA Act, or for cancelling bail already granted to such an accused by a Special Court, constituted under the NIA Act, or by some other Court of competent jurisdiction, which is subordinate to the High Court. This question, in turn, brings one to a more important question and the question is as to whether a person, arrested on the ground of having committed an offence under the NIA Act, can be produced before, and remanded by, a Judicial Magistrate to police or judicial custody in exercise of powers under Section 167(2) Code of Criminal Procedure and/or whether such an accused person is required to be produced, for the purpose of obtaining his remand to police or judicial custody, in the Court of Session until the time a Special Court, in terms of the provisions of the NIA Act, is constituted by the Government. 5. Another equally important question is: Whether a Court of Session or a Special Court, constituted under the NIA Act, can invoke provisions of Section 439 Code of Criminal Procedure? Yet Anr. 5. Another equally important question is: Whether a Court of Session or a Special Court, constituted under the NIA Act, can invoke provisions of Section 439 Code of Criminal Procedure? Yet Anr. question, which arises for determination, in the present set of bail applications, is: Whether, against an order cancelling or refusing bail by the Court of Session or the Special Court, constituted under the NIA Act, as the case may be, an appeal, in terms of the provisions of Section 21(4) of the NIA Act, will lie to the High Court or, notwithstanding the fact that the NIA Act has come into force, the High Court still enjoys the power, under Section 439 Code of Criminal Procedure to allow an application for bail, when any Court of competent jurisdiction, subordinate to the High Court, has refused bail to a person, who is in custody on allegation of having committed an offence under the NIA Act, or cancel bail, where Court of competent jurisdiction, subordinate to the High Court, has granted bail to such an accused ? These are, broadly speaking, the questions, which have arisen for determination in the present set of bail applications. 6. I have heard Mr. J.M. Choudhury, learned Senior Counsel, for the Petitioner in Bail Application No. 2605/2009, Mr. B.K. Mahajan, learned Counsel, for the Petitioner in Bail Application No. 2787/2009 and Mr. A. Saikia, learned Counsel, for the Petitioner in Bail Application No. 2639/2009. I have also heard Mr. D.K. Das, learned Senior Counsel, appearing on behalf of the National Investigation Agency, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 7. At the time of hearing, this Court, in the present set of bail applications, raised a query as to whether an application, under Section 439 Code of Criminal Procedure, lies in respect of commission of an offence, which is punishable by the NIA Act, and is being investigated by the National Investigation Agency. Having obtained instructions and the views of the National Investigating Agency, Mr. D.K. Das, learned Senior Counsel, appearing on behalf of the National Investigation Agency, has placed, on the record, the views of the National Investigating Agency on the basis of the opinion rendered by the learned Additional Solicitor General of India. Having obtained instructions and the views of the National Investigating Agency, Mr. D.K. Das, learned Senior Counsel, appearing on behalf of the National Investigation Agency, has placed, on the record, the views of the National Investigating Agency on the basis of the opinion rendered by the learned Additional Solicitor General of India. For the sake of clarity as to what the stand of the National Investigating Agency is, the submissions of the National Investigating Agency, as placed on record, are reproduced hereinbelow: The accused Petitioner in Bail Application No. 2605 of 2009 before the Hon'ble High Court of Gauhati has preferred an application under Section 439 Code of Criminal Procedure, 1973, seeking bail in connection with National Investigation Agency Police Station Case No. 1/2009 under Sections 129(B)/121/121(A) of Indian Penal Code read with Section 25(1-B)(A) of the Arms Act and Sections 17, 18, 19 of the Unlawful Activities (Prevention) Act. The Hon'ble High Court while hearing the bail application on 14.07.2009, has raised a question as to whether it would be possible for the High Court to invoke provisions of Section 439 Code of Criminal Procedure, 1973, to release person on bail or cancel bail granted by a Special Court in the light of the provisions of Section 21 of the National Investigation Agency Act, 2008. In the light of the facts and circumstances of the present case, Section 21 of the National Investigation Agency Act, 2008 will not come in to operation as the Special Court has not been constituted and as such there is no appellable judgment, sentence or order to invoke Section 21 of the National Investigation Agency Act, 2008. In the light of the fact that Special Courts have not been established under National Investigation Agency Act, 2008, the general jurisdiction of the ordinary criminal courts cannot be said to have been excluded. Therefore, Special powers of the Hon'ble High Court regarding bail provided under Section 439 Code of Criminal Procedure, 1973, can be invoked to consider the bail application filed by the accused/Petitioner. This view is fortified by the law laid down by the Hon'ble Supreme Court. Therefore, Special powers of the Hon'ble High Court regarding bail provided under Section 439 Code of Criminal Procedure, 1973, can be invoked to consider the bail application filed by the accused/Petitioner. This view is fortified by the law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme Court in Bhim Sen v. State of U.P. AIR 1955 SC 435 , has laid down the principle that, "Exclusion of jurisdiction of a Court of general jurisdiction can be brought about by the setting up of a Court of limited jurisdiction in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where there is no adequate machinery for the exercise of this jurisdiction in a specific case, it cannot be held that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal. This principle has been reiterated by the Hon'ble Supreme Court in Attiq-ur-Rehman v. Municipal Corporation of Delhi (1996)3 SCC 37 . The Hon'ble Supreme Court has held, "the jurisdiction of the criminal courts under Section 4 Code of Criminal Procedure is comprehensive and exhaustive. To the extent that no valid machinery is set up under any other law for trial of any particular case, the jurisdiction of the ordinary criminal courts cannot be said to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction can be brought about only by setting up of a court of limited jurisdiction in respect of the limited field provided that the vesting and the exercise of that limited jurisdiction is clear and operative. It is well settled that penal statutes have to be strictly construed. Personal liberty of an individual continues to be regulated by ordinary laws which will be the procedure established by law under Article 21 of the Constitution of India. The only recourse available to the accused/Petitioner would be under Section 439 Code of Criminal Procedure, 1973 or otherwise he will be without remedy and that such an interpretation should be avoided. 8. The only recourse available to the accused/Petitioner would be under Section 439 Code of Criminal Procedure, 1973 or otherwise he will be without remedy and that such an interpretation should be avoided. 8. A bare reading of what has been reproduced above shows that according to the Central Government, since the Special Court, as envisaged by the NIA Act, has not yet been constituted, Section 21 of the NIA Act will not come into operation and, in consequence thereof, no appealable judgment, sentence or order, as contemplated by Section 21, can be said to have arisen as yet and that it is the ordinary jurisdiction of the High Court, under Section 439 Code of Criminal Procedure, which will continue to govern bail applications and that the powers, contained under Section439 Code of Criminal Procedure, can be invoked, for the purpose of seeking bail, by a person, who is in custody on accusation of having committed an offence under the NIA Act, and/or for cancelling bail granted to such an accused by a court of competent jurisdiction, subordinate to the High Court. Support for the stand, so taken, is sought to be derived from the decisions in Bhim Sen v. State of U.P. reported in AIR 1955 SC 435 and Attiqur Rehman v. Municipal Corporation of Delhi reported in (1996) 3 SCC 37 . 9. Referring to, and relying upon, what has been quoted above, Mr. Das submits, rather reiterates, that since a Special Court, as envisaged by the NIA Act, has not yet been constituted and until the time the Special Court is constituted, the Magistrates, under the ordinary law, as envisaged by the Code of Criminal Procedure, particularly, Section 167(2) thereof, can remand an accused to police or judicial custody and that trial in respect of offences, committed under the NIA Act, would be held by the Court of Session until Special Court is constituted. Mr. Das further submits that the Magistrate can consider application for bail in exercise of his powers under Section 437 Code of Criminal Procedure, if a person, accused of an offence under the NIA Act, applies for bail. Mr. Das contends that the power to consider a bail application, in such a case, will also remain vested, until the time the Special Court is constituted, in the Court of Session as provided in Section 439 Code of Criminal Procedure. Mr. Das contends that the power to consider a bail application, in such a case, will also remain vested, until the time the Special Court is constituted, in the Court of Session as provided in Section 439 Code of Criminal Procedure. It will also remain open, according to Mr. Das, for such an accused to invoke provisions of Section 439 Code of Criminal Procedure for seeking bail from the High Court without making any application for bail to the Court of a Magistrate or to the Court of Session or when his application for bail is rejected by the Magistrate or the Court of Session. Even the Government, submits Mr. Das, can seek, in exercise of the High Court's power under Section 439 Code of Criminal Procedure, cancellation of bail, which may have been granted to such an accused by a Magistrate or a Court of Session. 10. Mr. Das also maintains that since no Special Court has yet been constituted, the National Investigation Agency, constituted under Section 3 of the NIA Act, can seek remand of a person, accused of commission of an offence under the NIA Act, from the Chief Judicial Magistrate or any other Judicial Magistrate, as contemplated, in the Code of Criminal Procedure, in respect of an ordinary crime and, against an order passed by such a Magistrate, an application, under Section 439 Code of Criminal Procedure, can be maintained either for obtaining bail, where bail has been refused, or for cancellation of bail, where bail has been granted by the Magistrate. To a pointed query made by this Court as to what would happen to the powers of the High Court under Section 439 Code of Criminal Procedure if a Special Court is constituted, Mr. Das could not make any clear statement except saying that the jurisdiction of the High Court, under Section 439, would continue to govern the field, in question, even after the Special Court comes to be constituted. To the query raised by this Court, as to who will grant remand, in respect of judicial or police custody, when the Special Court is constituted, Mr. Das hesitatingly submits that the Court of competent jurisdiction is the Court of Chief Judicial Magistrate or any other Magistrate to whom a person, accused of an offence under the Act, is, on being taken into custody, forwarded in terms of Section 167(2)Code of Criminal Procedure. 11. Das hesitatingly submits that the Court of competent jurisdiction is the Court of Chief Judicial Magistrate or any other Magistrate to whom a person, accused of an offence under the Act, is, on being taken into custody, forwarded in terms of Section 167(2)Code of Criminal Procedure. 11. Mr. JM Choudhury, learned Senior Counsel, appearing on behalf of the Petitioner, in Bail Application No. 2605/2009, maintains that irrespective of the fact as to whether a Special Court is or is not constituted under the NIA Act, the power of the High Court, under Section 439 Code of Criminal Procedure, will continue to remain available to a person, who is taken into custody for commission of an offence under the NIA Act. When enquired by the Court as to what is the meaning, scope and effect of the provisions made in Sub-section (4) of Section 21 of the NIA Act, which provide that notwithstanding anything contained in Sub-section (3) of Section 378 of the Code, an appeal would lie to the High Court against an order of the Special Court granting or refusing bail, Mr. Choudhury submits that the reference made, in Sub-section (4) of Section 21, to Section378(3) of the Code of Criminal Procedure, which relates to seeking of leave for appeal by a complainant, is an error, which appears to have crept in, while enacting Sub-section (4) of Section 21 and that Sub-section (4) of Section 21 will come into force only after a person, accused of an offence under the NIA Act, stands convicted and sentenced and, on his application for suspension of sentence being made, when he is either allowed to go on bail or bail is refused to him. 12. Expressing his disagreement with the line of argument, advanced by Mr. Das and, substantially, adopted by Mr. Choudhury, Mr. B.K. Mahajan, learned Counsel, appearing for the Petitioner, in Bail Application No. 2787/2009, submits that when the NIA Act has been brought into force, as a whole, and the provisions, contained therein, have come into force, the submissions, made on behalf of the Central Government, that the Court of Session would continue to exercise its ordinary jurisdiction of considering bail applications under Section 439 Code of Criminal Procedure, in respect of offences, under the NIA Act, so long as a Special Court is not constituted, is misconceived. Mr. Mr. Mahajan submits that when the NIA Act has come into force with all the provisions contained therein, the question of Section 21, (which relates to appeal), having not come into force, does not arise at all. Mr. Mahajan points out that Section 21 provides for appeal against any judgment, sentence or order provided that the order, to be appealed against, is not an interlocutory order. Since an order, contends Mr. Mahajan, granting or refusing bail is an interlocutory order, no appeal, under Section 21(1), could have been maintained, but, in the light of the provisions contained in Section 21(4), an appeal against an order, refusing bail or seeking cancellation of bail, can be entertained by the High Court. In other words, what Mr. Mahajan submits is that an order, granting or refusing bail under the NIA Act, is an interlocutory order and appeal would riot have been, ordinarily, available, under Section 21(1), against such an order, but by virtue of Section 21(4), such an order has become appealable, for, Sub-section (4) of Section 21 has engrafted an exception to Sub-section (1) of Section 21 by providing that an appeal would lie to the High Court against an order passed by a Special Court, under the NIA Act, either granting, or refusing to grant, bail. Consequently, it has, now, become possible, for the High Court, reiterates Mr. Mahajan, to entertain an application for bail against an order refusing or granting bail. Mr. Mahajan hastens to clarify that though the present application (wherein Mr. Mahajan appears) has been made under Section 439 Code of Criminal Procedure, the application has actually been made, as a matter of abundant caution, and the Petitioner, in Bail Application No. 2787/2009, awaits decision of this Court on the question, raised in this Bail Application, for the purpose of determining as to whether the Petitioner shall or shall not prefer an appeal under Section 21(4) and, depending upon what views this Court expresses and what decision this Court pronounces, the Petitioner would take further necessary steps. Mr. Mr. Mahajan, in no uncertain words, seeks to clarify by adding that if this Court decides that against an order, passed under the NIA Act, granting or refusing bail, an appeal, under Sub-section (4) of Section 21, lies, the Petitioner may have to, first, file an application, in the Court of Chief Judicial Magistrate, seeking bail and if such an application is rejected, the Petitioner may have to prefer an appeal as indicated hereinbefore. Mr. Mahajan further hastens to submit that notwithstanding the fact that the accused, in the present cases, were produced before the Chief Judicial Magistrate and the Special Court has not yet been constituted, the power to remand the accused, in terms of Section 167(2) Code of Criminal Procedure, really lies not with the Chief Judicial Magistrate, but with the Court of Session, which, under the scheme of the NIA Act, is, according to Mr. Mahajan, would function as the Court of original criminal jurisdiction and would have the power not only of trial, but also of making orders of remand in respect of offence under the National Investigating Agency Act, 2008. 13. As far as Mr. Z. Kamar, learned Public Prosecutor, Assam, is concerned, he has taken this Court extensively through various provisions of the National Investigation Agency Act, 2008, Prevention of Terrorism Act, 2002, and the Terrorist And Disruptive Activities (Prevention) Act, 1987, and submitted, relying upon, particularly, the decision in Usmanbhai Dawoodbhai Memon v. State of Gujarat reported in (1988) 2 SCC 271 , that the NIA Act has not taken away the powers of the High Court under Section 439 Code of Criminal Procedure and one can, notwithstanding the provisions contained in the NIA Act, invoke the High Court's jurisdiction, under Section 439, seeking bail, where bail is not granted, or for cancelling bail, where bail has been granted by the Special Court or any other Court subordinate to the High Court. 14. As the submissions, made on behalf of the parties to these proceedings, are completely irreconcilable with each other, this Court is required to undertake the exercise of analyzing the provisions of various laws, which govern the controversies raised in these bail applications. This exercise will, naturally, call for a cautious, patient and extensive examination of the relevant provisions of the Code of Criminal Procedure as well as the NIA Act. 15. This exercise will, naturally, call for a cautious, patient and extensive examination of the relevant provisions of the Code of Criminal Procedure as well as the NIA Act. 15. It may be pointed out, at the very outset, that while dealing with any penal provisions of any 'special law', one has to bear in mind the provisions of Sections 4 and 5 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Sections 4 and 5 are, therefore, reproduced hereinbelow: 4. Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and, otherwise, dealt with according to the provisions hereinafter contained. (2) All offences, under any other law, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the same provisions, but subject to any enactment, for the time being in force, regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving. Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 16. A careful reading of Section 4 shows that this Section stands divided into two parts. While Sub-section (1) of Section 4 lays down that all offences, under the Indian Penal Code, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the provisions contained in the Code, Sub-section (2) of Section 4 makes it clear that all offences, under any 'other' law, shall be investigated, inquired into, tried, and, otherwise, dealt with according to the same provisions, that is, the provisions contained in the Code, subject to any enactment (for the time being in force) 'regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences' 17. Coupled with the above, what becomes clear is that to the extent a 'special law' modifies the procedure for investigation, enquiry, trial or dealing, otherwise, with offences created under the 'special law', it is the modified procedure, which would be applicable. Coupled with the above, what becomes clear is that to the extent a 'special law' modifies the procedure for investigation, enquiry, trial or dealing, otherwise, with offences created under the 'special law', it is the modified procedure, which would be applicable. In effect, therefore, to the extent that the 'special law' intrude into the field delineated by the Code for investigation, enquiry or trial, the provisions, contained in the Code, with regard to investigation, enquiry, trial or, otherwise, dealing with offences, would recede. Consequently, an offence, punishable by a 'special law', would be investigated, enquired into, tried or, otherwise, dealt with according to the 'special law' even when the 'special law' does not create a Special Court and allows the ordinary criminal court to exercise jurisdiction in respect of such offences. 18. A combined reading of Sub-sections (1) and (2) of Section 4 further makes it clear that as far as offences, under the Indian Penal Code, are concerned, these offences will be investigated, inquired into, tried, and, otherwise, dealt with, according to the provisions contained in the Code and that even the offences under any 'other' law, (which obviously mean 'special' or 'local' laws) shall be investigated, inquired into, tried, and, otherwise, dealt with, in accordance with the provisions of the Code as may be applicable to offences subject to, however, any deviation, which the 'special law' may, otherwise, make as regards the manner or place of investigation, enquiry, trial or the manner in which a case shall, otherwise, be dealt with. The expression, 'otherwise dealt with', appearing in Sub-sections (1) and (2) of Section 4, has very wide effect and envisages all the steps, which may be required to be taken for the purpose of effective investigation, enquiry or trial. The expression 'otherwise dealt with' would, therefore, include obtaining of remand--judicial or police--in terms of Section 167(2) of the Code. To put it a little differently, the provisions of the Code will be applicable, as regard investigation, enquiry or trial, not only as far as the offences, under the Indian Penal Code, are concerned, but also in respect of offences under any 'other' law, (i.e., special or local) except to the extent as the 'other law' may modify. 19. To put it a little differently, the provisions of the Code will be applicable, as regard investigation, enquiry or trial, not only as far as the offences, under the Indian Penal Code, are concerned, but also in respect of offences under any 'other' law, (i.e., special or local) except to the extent as the 'other law' may modify. 19. As a corollary, what becomes clear is that unless the 'other' law, whereunder any investigating agency and/or any court is created or special mechanism or procedure for investigation, enquiry or trial is provided, an ordinary criminal court, which falls under the class of criminal courts, as envisaged by Section 6 of the Code, will continue to exercise such powers, which may be available to it under the Code. This becomes clearer if one bears in mind the fact that there are two schedules appended to the Code. So far as the first schedule is concerned, it stands divided, depending upon the classification of offences, into two parts. While the first part of the first schedule deals with the offences of the Indian Penal Code and lays down, in respect of each offence, (which the Indian Penal Code creates), as to which Court would be competent to try such an offence, the second part of the first schedule deals with offences against 'other' laws. Part II of the first schedule reads as under: II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS Offence Cognizable or non-Cognizable Bailable or non-bailable By what Court triable If punishable with death, imprisonment for life, or imprisonment for more than 7 years, Cognizable Non-Bailable Court of Session If punishable with imprisonment for 3 years, and upwards but not more than 7 years, Cognizable Non-Bailable Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only Non-Bailable Bailable Any Magistrate 20. A careful reading of the first schedule shows, as already indicated above, that in respect of each offence, punishable under the Indian Penal Code, the Court, by whom the offence is triable, has been prescribed. If punishable with imprisonment for less than 3 years or with fine only Non-Bailable Bailable Any Magistrate 20. A careful reading of the first schedule shows, as already indicated above, that in respect of each offence, punishable under the Indian Penal Code, the Court, by whom the offence is triable, has been prescribed. This apart, as to whether the offence is bailable or non-bailable, cognizable or non-cognizable has also been prescribed; whereas, in respect of offences, against the 'other' laws (i.e. special or local laws), the question as to whether an offence is cognizable or non-cognizable, bailable or non-bailable, triable by one court or the other, is dependant on the period of imprisonment as may have been prescribed in respect of an offence. As a result thereof, while an offence, punishable by imprisonment of less than 3 years, or with fine only, is cognizable, bailable and triable by any Magistrate, an offence, which is punishable by imprisonment for more than three years, but less than 7 years, is non-cognizable, non-bailable and triable by not every Magistrate, but by a Magistrate of the First Class, which, obviously, would take, within its sweep, a Chief Judicial Magistrate, an Additional Chief Judicial Magistrate or a Sub-Divisional Judicial Magistrate. As regard the offences, which are punishable with death, imprisonment for life or imprisonment for more than 7 years, such offences are cognizable, non-bailable and triable only by a Court of Session. 21. Thus, when a 'special law' does not prescribe or provide for constitution of any Special Court for the purpose of trial of an offence under the 'special law', an offence, which is punishable with death, imprisonment for life or imprisonment for more than 7 years, would be tried by a Court of Session. Consequently, in respect of offences punishable under the 'special law's, all the requirements, as regards bringing of a case for trial to the Court of Session, as prescribed under the Code, would have to be followed, which would obviously include even commitment of a case, under the 'special law', to the Court of Sessions unless the 'special law' dispenses with the provisions of commitment as contained in Section 209 of the Code. What this will mean is that the Court of Session would not be able to try such a case, under the 'special law', as a court of original criminal jurisdiction, unless the same is committed to it in terms of the provisions contained in Section 209 of the Code; but when the 'special law' provides that a Court of Session can take cognizance of a case without the case being committed to it, the Court of Session would become, in effect, a Court of original criminal jurisdiction and would not remain a Court of Session except to the extent as the 'special law' may provide in this regard. Thus, if the 'special law' imposes any limitation on the powers of the court, which will try an offence, then, the ordinary criminal court, which may try such an offence, have to follow, and abide by, the limitations, which might have been imposed on its powers under the 'special law', though the Code may not have imposed such a limitation. Similarly, if the 'special law' confers any power on such a Court, then, the Court, which exercises the powers of the Special Court, in the absence of constitution of the special Court, would also enjoy such powers, as may be available to the Special Court, even if such powers are, otherwise, not, ordinarily, available, in the Code, to such a Court. 22. Thus, jurisdiction of the ordinary criminal courts, under Section 4 of the Code, in respect of even offences under the 'special law', is comprehensive. Consequently, so long as no other machinery is set up for trial of any particular case or class of cases under the 'special law', jurisdiction of the ordinary criminal courts would be available, depending, of course, on the period of punishment prescribed in respect of the offence(s) concerned except to the extent as the 'special law' may, as regards the manner of dealing with such a case, otherwise, prescribe. Exclusion of jurisdiction of a court of a ordinary criminal jurisdiction can be brought about only by making provisions for setting up of a court of limited jurisdiction. Exclusion of jurisdiction of a court of a ordinary criminal jurisdiction can be brought about only by making provisions for setting up of a court of limited jurisdiction. Hence, where no Special Court is contemplated under the 'special law', it is the ordinary criminal court, which will exercise jurisdiction in respect of the offence against 'other' laws (i.e., 'special law's), the exercise of such jurisdiction would, of course, stand modified to the extent as the 'special law' may indicate. If, however, a Special Court is contemplated, but not constituted and the special enactment envisages that during the transitory period, the ordinary criminal court, which may have, otherwise, jurisdiction in respect of an offence (depending upon the punishment prescribed) shall exercise the jurisdiction, it is the ordinary criminal court, which would exercise the jurisdiction; but the exercise of jurisdiction by the ordinary criminal court would, in such a case, be controlled by such limitations as the special enactment may envisage in respect of the Special Court. In short, the law and procedure, for trial of cases under the Indian Penal Code and those, under special statutes, cannot differ except to the extent as the 'other' law, (i.e., special or local law) prescribes. 23. Consequently, if a 'special law' provides for trial of a class of offences by the Court of Session and make such Court of Session a Court of original jurisdiction empowering it to take cognizance of an offence on the basis of a 'complaint' as defined in Section 2(d) of the Code and/or on the basis of 'police report' as contemplated under the provisions of Section 173(2) of the Code, the Court of Session will be empowered as well as bound to take cognizance of such offence without the case being committed to it as is, ordinarily, done by a Judicial Magistrate. In short, and if I may reiterate, even the Court of Session will try an offence, under any 'other' law or 'special' law, subject to such limitations as may be imposed on the power of the Court of Session or subject to such modification, in the procedure, as the 'other' law, i.e. 'special law', may provide in respect of such an offence. 24. 24. Bearing in mind the scheme of investigation, enquiry and trial of offences under the Indian Penal Code vis-a-vis "other' laws (i.e., special or local) as envisaged by Sections 4 and 5, let me, now, turn to Attiqur Rehman v. Municipal Corporation of Delhi reported in (1996) 3 SCC 37 . which Mr. Das relies upon. 25. A careful reading of the decision in Attiqur Rehman (supra), which Mr. Das relies upon, does not support the submissions made on behalf of the National Investigation Agency inasmuch as the Apex Court, at para 22 in Attiqur Rehman (supra), points out that the provisions of the Code are applicable, where an offence, under the Indian Penal Code or any 'other' law, is being investigated, enquired into, tried or otherwise dealt with, and so long as no valid machinery is set up under any 'other' law for trial of any particular class of case, jurisdiction of the ordinary court cannot be said to have been excluded. While observing that exclusion of jurisdiction of a court of general jurisdiction can be brought about only by setting up of a court of limited jurisdiction, the Apex Court clarifies, in Attiqur Rehman (supra), that the law and procedure for trial of cases, under the Indian Penal Code or those under the 'other' laws, in the light of Section 4 of the Code, is not different except that in the case of offences, against the 'other' laws, the procedure laid down by the Code is subject to the provisions of the relevant enactments (for the time being in force) regulating the manner of trial of offences under that enactment. 26. What appears to have been missed by the National Investigation Agency is the fact that in Attiqur Rehman (supra), the Supreme Court, while laying down that when a 'special law' creates a special class of court, but the Special Court is not constituted, the jurisdiction of the ordinary criminal court would not stand excluded, for, an offender cannot go unpunished and shall be triable by an ordinary criminal court subject, however, to the condition that the ordinary criminal court, while exercising the power of the Special Court, would follow the provisions contained in the Code subject to such limitations and procedural modifications as may have been introduced by the special enactment. In other words, subject to the modification and/or the changes in the provision of the Code, ordinary criminal court, until the time the Special Court is constituted, shall discharge the functions of the Special Court, for, an offender cannot, when the special law has been brought into force, be allowed to go untried. In Attiqur Rehman (supra), the special enactment was the Delhi Municipal Corporation Act, 1957 (in short, 'the DMC Act'). While Section 469 of the DMC Act empowered the Government to appoint one or more Magistrate of First Class to try offences under the DMC Act, Section 467 of the DMC Act laid down that no court shall try any offence except on a complaint of. or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation. 27. What is, now, important to note is that a Magistrate of the First Class, in the light of the provisions of Section 190 of the Code, is empowered to take cognizance of an offence on the basis of (a) receipt of a complaint of facts, which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person, other than a police officer, or upon his own knowledge that such offence has been committed. However, Section 467 of the DMC Act, in Attiqur Rehman (supra), disempowered the Municipal Magistrate from trying an offence on the basis of his own information or knowledge or on the basis of a police report, as contemplated by Section 173(2) of the Code, and confined the Magistrate's power to try an offence, under the DMC Act, only on the basis of a complaint of, or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation. 28. While dealing with the case of Attiqur Rehman (supra), the question, which arises is: whether a Judicial Magistrate of the First Class or a Metropolitan Magistrate, who had not been appointed as Municipal Magistrate under the DMC Act, was bound to follow the provisions of Section467 of the DMC Act, and could not have, therefore, taken cognizance of offence except on the basis of complaint of, or information received from, an officer not below the rank of Deputy Commissioner appointed by the Administrator of the Corporation? The answer to this question has to be in the affirmative, namely, that apart from the fact that a Municipal Magistrate, if appointed, or a Judicial Magistrate or a Metropolitan Magistrate, so long as the Municipal Magistrate was not appointed could have tried an offence under the DMC Act, but could not have taken cognizance of offence in any manner except as the DMC Act, as a special statute, had provided, for, while applying a special statute, the provisions of the special statute would prevail upon the general provisions of the Code. Consequently, though the Magistrate of First Class could have tried an offence under the DMC Act, he could not have taken cognizance on the basis of a police report as contemplated by Section 173(2) of the Code or on the basis of any information received from any person other than an officer as specified under the DMC Act or upon his knowledge, which he was, otherwise, entitled to do, under Section 190 of the Code, in his capacity as a Judicial Magistrate of the First Class or Metropolitan Magistrate. Putting to rest this controversy, the Supreme Court, at para 26, in Attiqur Rehman (supra), observed: 26. A conjoint reading of the provisions of Code of Criminal Procedure and the Act, therefore, unambiguously suggests that in the absence of courts of special jurisdiction i.e. Municipal Magistrates to be appointed under Section 469 of the Act, a Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the case may be, shall have the jurisdiction and powers to try the offences under the Act in accordance with the procedure envisaged by Section 467 of the Act and in accordance with the limitation (sic and) the time prescribed for initiation of the criminal proceedings under Section471 of the Act. This interpretation is in accord with the position that every offence committed under the Indian Penal Code or under any other law for the time being in force must be tried and an accused cannot be permitted to raise any objection with regard to the forum for trial of the offence, where the specific forum has not been constituted under the Act because the law does not contemplate an offence, to go untried. Where, no court of a Municipal Magistrate has been constituted under Section 469 of the Act and no notification has also been issued conferring the powers of a Municipal Magistrate on a particular Judicial Magistrate of the First Class or a Metropolitan Magistrate, as the (sic) 44 may be, the jurisdiction of an ordinary criminal court to take cognizance of the offences committed under the Act, rules, regulations or bye-laws made thereunder is exercisable by the courts of general jurisdiction established to try offences under the Indian Penal Code as well as the offences under any other law. 29. From what has been observed and held above, in Attiqur Rehman (supra), it clearly follows that when a Special Court, as contemplated by special enactment, is not constituted, an offender cannot go unpunished if the special statute has been brought into force. Consequently, the ordinary criminal court, depending upon the punishment prescribed, would try such an offence subject, of course, to such limitations as may have been prescribed by the special statute itself including the deviation, if any, in the procedure, which may be envisaged in the statue, which creates the offence. 30. What logically follows from the above is that when the NIA Act has come into force and no Special Court has yet been constituted as envisaged by the NIA Act, an offender cannot go unpunished and his case has to be dealt with in the same manner as may have been dealt with by Special Court, had the Special Court been constituted. It is worth pointing out (and I will revert to this aspect once again) that Section 22(3) of the NIA Act states The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under Sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. Thus, Section 22(3) of the NIA Act contains transitory provisions and have to be resorted to, until the time the Special Court is constituted. Thus, Section 22(3) of the NIA Act contains transitory provisions and have to be resorted to, until the time the Special Court is constituted. In the light of Attiqur Rehman (supra), therefore, the Court of Session, while functioning, in the absence of constitution of a Special Court, under the NIA Act, would be bound by the limitations, which may have been imposed on the powers of the Special Court by the NIA Act or by the modes and manner of taking of cognizance and trial of cases, which the NIA Act may have introduced in the provisions of the Code with regard to, otherwise, dealing with the case. 31. Let me, now, pause and look into the scheme of the NIA Act with regard to taking of cognizance, remand of an accused, his bail and the procedure of trial to be adopted by a Special Court and, in the absence of a Special Court having constituted, by a Court of Session. 32. The NIA Act has created the National Investigation Agency, as an agency, to investigate scheduled offences, which, in terms of Section 2(g) of the NIA Act, mean the offences specified in the Schedule to the NIA Act. The Investigating Agency, which is referred to as 'Agency', is constituted by the Central Government in exercise of its powers under Section 3 of the NIA Act. Section 4 empowers the Central Government to direct the Agency to investigate a Scheduled offence and also vests in the Central Government the power of superintendence over the Agency. 33. Sub-section (3) of Section 3 of the NIA Act makes it clear that any officer of the Agency of, or above, the rank of Sub-Inspector may, subject to any orders, which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station. Thus, Sub-section (3) clearly shows that an officer of the Agency shall have the powers of an officer-in-charge of a police station, while discharging the functions of such an officer within the limits of his station. 34. Thus, Sub-section (3) clearly shows that an officer of the Agency shall have the powers of an officer-in-charge of a police station, while discharging the functions of such an officer within the limits of his station. 34. Section 6 of the NIA Act, which relates to investigation of Scheduled offences, shows that on receipt of information and, having recorded the information, in terms of Section 154 of the Code, relating to any Scheduled offence, the officer-in-charge of the police station, shall, under Section 6(1), forward a report to the State Government forthwith. The report, so received by the State Government, has to be forwarded, under Section 6(2), by the State Government to the Central Government, as expeditiously as possible. In terms of Sub-section (3), read with Sub-section (4) of Section 6, if the Central Government, on receipt of the report, finds it a fit case to be investigated by the Agency, it shall direct the Agency to investigate the offence. Apart from the fact that the Central Government can direct the Agency, on the basis of a report received from the State Government, to investigate a case, such direction can be issued, in the light of Section 6(5), by the Central Government suo motu also. Section 8of the NIA Act makes it clear that while investigating any Scheduled offence, the Agency may also investigate any other offence, which the accused is alleged to have committed, if the offence is connected with the Scheduled offence. 35. What is, now, important to note is that Section 2(1) of the NIA Act makes it clear that the words and expressions, which are used, but not defined in the NIA Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974) (in short, 'the Code'), shall bear, unless the context otherwise requires, their respective meaning assigned to them in the Code. 36. In the light of what Section 2(1) states, when one turns to the Code, it becomes clear that the expression, 'complaint' and 'police report', which appear in the NIA Act, shall have the same meaning as assigned to them under Section 2(d) and 2(r) of the Code respectively. While Section2(d) of the Code defines 'complaint' to mean any allegation, made orally, or, in writing, to a Magistrate, with a view to the Magistrate's taking action under the Code, that some person, whether known or unknown, has committed an offence. While Section2(d) of the Code defines 'complaint' to mean any allegation, made orally, or, in writing, to a Magistrate, with a view to the Magistrate's taking action under the Code, that some person, whether known or unknown, has committed an offence. Section 2(d) of the Code, however, makes it clear that a 'complaint' does not include a police report. It is Section 2(r) of the Code, which defines a 'police report' to mean a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173 of the Code. 37. It may, now, be pointed out that on registering First Information Report (in short, 'FIR') with regard to a cognizable offence, a police officer becomes entitled to investigate the case in terms of the provisions of Section 156 of the Code and, on completion of investigation, the police officer is required to forward, under Section 173(2) of the Code, his report of investigation to the Magistrate, who, in turn, is empowered, under Section 190(1)(b) of the Code, to take cognizance of offence on the basis of the police report, as contemplated by Section 173(2) of the Code. 38. It is, therefore, clear that a police report, in the Code, is nothing but the result of investigation, which a police officer conducts. Thus, when the officer of the Agency, in terms of Section 156 of the Code, read in the light of Section 6 of the NIA Act, investigates a Scheduled offence and, on completion of investigation, submits a report to the competent court for the purpose of taking cognizance, such a report would be nothing but a 'police report' within the meaning of Section 2(r) read with Section 173(2) of the Code. I may, however, hasten to add that according to the Explanation, appended to the definition of 'complaint', as given in Clause (d) of Section 2 of the Code, a report, submitted by a police officer, which discloses, on completion of investigation, commission of a non-cognizable offence, shall be deemed to be 'complaint'. In the present case, since the offence, under the NIA Act, are cognizable, the Explanation is not attracted. 39. In the present case, since the offence, under the NIA Act, are cognizable, the Explanation is not attracted. 39. Coming to Section 11 of the NIA Act, I notice that Section 11 of the NIA Act empowers the Central Government to constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. Even the State Government has been empowered, under Section 22 of the NIA Act, to constitute Special Court(s) for the trial of offences under any or all the enactments specified in the Schedule to the NIA Act. 40. What is, however, important to note is that Section 13 of the NIA Act makes it clear that notwithstanding anything contained in the Code, every Scheduled offence, investigated by the Agency, shall be tried only by the Special Court within whose local jurisdiction the offence was committed. Under Section 13(2)(c) of the NIA Act, the Supreme Court may transfer any case(s), pending before a Special Court, to any other Special Court within the State or in any other State, and the High Court may transfer any case pending before a Special Court, situated in that State, to any other Special Court within the State. 41. It is important to bear in mind that Section 16 of the NIA Act embodies the procedure to be followed, while taking cognizance of offence(s) by a Special Court. Section 16 of the NIA Act is, therefore, of great relevance in the present case and is reproduced below: 16. (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. Section 16 of the NIA Act is, therefore, of great relevance in the present case and is reproduced below: 16. (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. (2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in Sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265of the Code shall, so far as may be, apply to such trial: Provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to, and in relation to, a Special Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees. (3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. (4) Subject to the other provisions of this Act, every case transferred to a Special Court under Sub-section (2) of Section 13 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Special Court. (4) Subject to the other provisions of this Act, every case transferred to a Special Court under Sub-section (2) of Section 13 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Special Court. (5) Notwithstanding anything contained in the Code, but subject to the provisions of Section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any Witness, subject to the right of the accused to recall the witness for cross-examination. 42. On a close reading of Section 16 of the NIA Act, what becomes clear is that notwithstanding the fact that, according to Section 16(3) of the NIA Act, a Special Court, for the purpose of trial of a scheduled offence, has all the powers of a Court of Session and shall try such offence 'as if it were a Court of Session', the Special Court does not become a Court of Session inasmuch as it is only the power of trial of a Court of Session that the Special Court, by virtue of Section 16(3), entitled to exercise. In other words, the expression, 'as if it were a Court of Session', which occur in Section 16(3), really reflects that it is only the procedure for trial of a Sessions case, which a Special Court can follow; but it is, otherwise, not a Court of Session. 43. I may pause here to point out that Section 16(3) of the NIA Act states, "Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session." Similar provisions existed in Section 14(3) of TADA. Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Section 14(3) in Usmanbhai Dawoodbhai Memon (supra). Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Section 14(3) in Usmanbhai Dawoodbhai Memon (supra). Referring to the expression 'as if it were', appearing in Section 3 of the TADA, the Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that though the Parliament has vested, by using the words 'as if it were', in the Designated Court, the status of a Court of Session, yet this legal fiction, contained in Section 14(3), must be restricted to the procedure to be followed for trial of an offence under the TADA, i.e., trial must be in accordance with the procedure prescribed, by the Code, in respect of a trial before a Court of Session in so far as it is applicable. The relevant observations, made in this regard, which appear at para 18, read as under: 18. No doubt, the legislature by the use of the words "as if it were" in Section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. 44. The above impression gets strengthened from the fact that Section 16(1) provides that a Special Court may take cognizance of offence, without the accused being committed to it for trial, which, in turn, implies that a Special Court takes cognizance of an offence as a Court of original jurisdiction and does not have the trappings of a Court of Session, which cannot, ordinarily, take, in the light of Section 193 of the Code, cognizance of an offence, unless the case, in terms of Section 209 of the Code, is committed to it, for, Section 193 states that a Court of Session cannot take cognizance of an offence as a Court of original jurisdiction except when the Code or the special law provides otherwise. Thus, a Court of Session could not have taken cognizance of an offence, under the NIA Act, without the case having been committed to it; but, as the NIA Act provides for taking cognizance of an offence by a Court of Session, without the case being committed to it, the Court of Session can take cognizance of offence, under the NIA Act, as the Court of original jurisdiction. Such a deviation is possible even in respect of a specified offence under the Indian Penal Code. For instance, Sub-section (2) of Section 199 of the Code provides that when an offence, falling under Chapter XXI of the IPC, is alleged to have committed against a person, who, at the time of such commission, is the President of India, Vice-President of India, Governor of a State, the Administrator of a Union territory or a minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his functions, a Court of Session may take cognizance of such an offence, without the case being committed to it, upon a complaint, in writing, made by the Public Prosecutor. 45. Section 16 of the NIA Act also makes it clear that cognizance of an offence can be taken by a Special Court on the basis of a complaint of facts that constitute such offence or upon a police report of such facts. Thus, a Special Court can take cognizance of an offence not only on the basis of a complaint, as defined in Section 2(d) of the Code, but also on the basis of a police report, as defined in Section 2(r) of the Code, the police report being, as indicated above, the report, which the police submits, under Section 173(2), on completion of investigation. 46. The question, which, now, arises for consideration is: when a Special Court takes cognizance of an offence under the NIA Act, is it exercising its powers given to a Magistrate under Section 190 of the Code, though it (i.e., the Special Court), in terms of Section 16(3) of the NIA Act, has all the powers of a Court of Session? The question, which, now, arises for consideration is: when a Special Court takes cognizance of an offence under the NIA Act, is it exercising its powers given to a Magistrate under Section 190 of the Code, though it (i.e., the Special Court), in terms of Section 16(3) of the NIA Act, has all the powers of a Court of Session? I have already indicated above that unlike a Court of Session, which cannot try a case, unless committed to it, under Section 209 of the Code, by a court of competent jurisdiction, a Special Court can take cognizance of an offence without any order of commitment being issued by any Magistrate, if the Special Court receives a complaint of facts that constitute an offence, or, upon police report of such facts. Since there is nothing in the NIA Act to show that a complaint has to be necessarily made by a public servant, it clearly follows that any individual can file a complaint before a Special Court. When such a complaint is filed, what is the course of action, which the Special Court can adopt? Obviously, the Special Court may take, in terms of Section 16(1), cognizance of the offence, which the complaint may disclose, and proceed to record, in terms of Section 200 of the Code, the statements of the complainant and his witness(es), if any, present. If the Special Court feels the necessity, it may even hold, in terms of Section 202 of the Code, an enquiry, and, on completion of such enquiry, it may either, in terms of Section 203 of the Code, dismiss the complaint, or, in terms of Section 204 of the Code, issue processes. 47. I may pause here to point out that Section 190(1) of the Code prescribes three distinct modes of taking of cognizance by a Magistrate, the modes being: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 48. Coupled with the above, Section 193read with Section 209 of the Code provides for a fourth mode of taking cognizance, namely, by way of commitment to the Court of Session. 49. 48. Coupled with the above, Section 193read with Section 209 of the Code provides for a fourth mode of taking cognizance, namely, by way of commitment to the Court of Session. 49. Thus, Section 190 read with Sections 193 and 209 of the Code provides, broadly speaking, four distinct modes of taking cognizance. Three of the modes of taking cognizance being confined to a Magisterial Court and the fourth mode of taking cognizance being confined to the Courts of Session, namely, (i) upon receipt of a complaint of facts, which constitute such offence, (ii) upon a police report of such facts (iii) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed, and (iv) by way of commitment. The legislature may, in a given case, restrict taking of cognizance to one or more modes, which have been prescribed by Section190. No wonder, therefore, that there are several statutes, which prescribe very limited mode of taking of cognizance. For instance, under Section20 of the Prevention of Food Adulteration Act, 1954, (in short, 'the PFA Act') cognizance of an offence, under the PFA Act, cannot be taken except by, or with the written consent of, the Central or the State Government or a person authorizes, in this behalf, by general or special order, by the Central or State Government. The only exception, in this regard, is when a prosecution is instituted, under the proviso to Section 20(1), by a purchaser or recognized consumer association if the purchaser or the recognized consumer association, as referred to in Section 12, produces, in the Court, a copy of the report of the Public Analyst along with the complaint. 50. In order to clearly appreciate that a Court of Session, while functioning as a Special Court, under the NIA Act, cannot be treated to be a Court of Session, though it (Special Court) may have the powers of the Court of Session, as far as the procedure for trial is concerned, a reference may be made to the provisions of the Prevention of Corruption Act, 1988 (in short, 'the PC Act, 1988'). Section 5 of the PC Act, 1988, lays down the procedure and powers of a Special Judge. Section 5 of the PC Act, 1988, lays down the procedure and powers of a Special Judge. Sub-sections (1) and (3) of Section 5 are of some relevance in the present case; hence, both these Sub-sections are reproduced below: 5(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973, (2 of 1974), for the trial of warrant cases by the Magistrates. 5(2) * * * 5(3) Save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor; 51. When Sub-sections (1) and (3) of Section 5 of the PC Act, 1988, are read together, what becomes clear is that Section 5 empowers a Special Judge to take cognizance of offence without the accused having been committed to it for trial and, though it shall follow the procedure prescribed by the Code for the trial of warrant cases by the Magistrates, the Court of the Special Judge shall be deemed to be a Court of Session. Thus, though a Special Judge, appointed under the PC Act, 1988, and functioning as the Court of the Special Judge, shall be deemed to be a Court of Session, it does not suffer from the limitations, which a Court of Session suffers from inasmuch as Section 193 of the Code disallows the Court of Session from taking cognizance of offence without case having been committed to it for trial; whereas a Court of Special Judge can take cognizance without the case being committed to it for trial. In other words, the Court of Special Judge, under the PC Act, 1988, acts and functions as a Court of original jurisdiction and not as a Court of Session, though the Court of the Special Judge shall, otherwise, be deemed to be a Court of Session. In other words, the Court of Special Judge, under the PC Act, 1988, acts and functions as a Court of original jurisdiction and not as a Court of Session, though the Court of the Special Judge shall, otherwise, be deemed to be a Court of Session. This apart, the PC Act, 1988, disempowers the Special Judge from taking cognizance unless requisite sanction for such prosecution is accorded by the prescribed authorities. In fact, even in respect of certain classes of offences under the Indian Penal Code, a court of original criminal jurisdiction cannot, in exercise of its powers under Section 190, take cognizance of certain categories of offences except upon appropriate sanction having been granted, in this regard, by the competent authority. Section 197 of the Code furnishes one of such illustrations. Even in respect of some other offences under the Indian Penal Code, the mode of taking of cognizance, under Section 190, stands restricted. For instance, certain offences against marriage, such as, adultery or, bigamy, no cognizance can be taken except upon complaint as prescribed in Section 198. In short, thus, it is for the legislature to provide the mode of taking of cognizance and also the manner of taking of cognizance. 52. While Sub-section (1) of Section 190 prescribes, as pointed out above, three distinct modes of taking of cognizance, by a Magistrate, which includes taking of cognizance even upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed, a Special Court, constituted under the NIA Act, cannot, in the light of Section 16(1) of the NIA Act, take cognizance on the basis of information received or upon its own knowledge; it can take cognizance only on the basis of complaint or police report, as indicated above, by Section 16(1) of the NIA Act. Should, therefore, a Special Court, under the NIA Act, be regarded as a Court of Magistrate, or, can it still be regarded as a Court of Session or is the Special Court, under the NIA Act, a combination of the Court of Magistrate and the Court of Session and, therefore, a Special Court is a class of Courts, which, notwithstanding the specified categories of Courts mentioned in Section 6 of the Code, a special class of Court created by the 'special law', namely, the NIA Act? 53. 53. When a Special Court can take cognizance without a case being committed to it, unlike what is required to be done in the case of a Court of Session, it logically follows that a Special Court is a court of original jurisdiction and cannot be regarded as a Court of Session except to the extent as provided by the NIA Act itself. The proposition, that a Special Court is not a Court of Session, is also supported by the fact that the NIA Act empowers a Special Court to try certain classes of offences, in a summary way, in the same manner as is done by a Magistrate in exercise of his powers under Section 263 and 265 of the Code. 54. The above aspect of law will become transparent when one considers the case of A.R. Antulay v. R.S. Nayak reported in (1984) 2 SCC 500 . In A.R. Antulay (supra), the question had arisen as to whether a Special Court, constituted under the P.C. Act, 1952, could take cognizance on the basis of a private complaint and, in this regard, it was urged, inter alia, before the Supreme Court, that since a Court of Special Judge has all the trappings of the Court of Session, it cannot take cognizance on the basis of a complaint, as provided by Section 190 of the Code, because, Section 190 of the Code confers power to take cognizance only on the Magistrate in any of the three modes prescribed therein and Section 190 cannot be resorted by a Court of Session to be able to take cognizance of offence on the basis of a 'complaint'. The Constitution Bench was, therefore, in A.R. Antulay (supra), called upon to decide the question as to whether the Court of Special Judge, under the PC Act, 1947, as stood amended by the Criminal Law (Amendment) Act, 1952, is a Court of Magistrate or a Court of Session. 55. Turning down the above argument, the Supreme Court pointed out that if Section 190 of the Code cannot be availed by a Special Judge, none of the modes of taking of cognizance of offences, as mentioned in Section 190, would be available to a Special Judge. 55. Turning down the above argument, the Supreme Court pointed out that if Section 190 of the Code cannot be availed by a Special Judge, none of the modes of taking of cognizance of offences, as mentioned in Section 190, would be available to a Special Judge. In the case of A.R. Antulay (supra), it was P.C. Act, 1947, which was in force and Sections 6 and 8 of this Act had fallen for interpretation by the Constitution Bench. Section 6of the PC Act, 1947, (as amended in 1952) read as under: 6.(1) The State Government may, by notification in the official Gazette, appoint as many special Judges as may be necessary for such area as may be specified in the notification to try the following offences, namely: (a) an offence punishable under Section 161, 162, 163, 164, 165 or Section 165-A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947. (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a). (2) A person shall not be qualified for appointment as special Judge under this Act unless he is, or has been, a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898. 56. Thus, Section 6 of the PC Act, 1947, prescribed the offences, which could have been taken cognizance of and tried by a Special Judge. In the PC Act, 1988, it is, now, Section 3, which lays down the offence, which can be taken cognizance of and tried by a Special Judge. While in the PC Act, 1988, it is Section 5, which lays down the procedure and power of a Special Judge, it was Section 8 of the PC Act, 1947, which contained the procedure and power of a Special Judge. Section 8 of the PC Act, 1947, read as under: 8(1) A special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates. Section 8 of the PC Act, 1947, read as under: 8(1) A special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates. (2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof, and any pardon so tendered shall, for the purposes of Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Section 338 of that Code. (3) Save as provided in Sub-section (1) or Sub-section (2) the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not consistent with this Act, apply to the proceedings before a special Judge and for the purposes of the said provisions, the Court of the special Judges shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. (3-A) In particular, and without prejudice to the generality of the provisions contained in Sub-section (3) the provisions of the Code of Criminal Procedure, 1898, shall so far as may be, apply to the proceedings before a special Judge, and for the purposes of the said provisions, a special Judge shall be deemed to be a Magistrate. (4) A special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted. 57. (4) A special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted. 57. What is, now, of immense importance to note is that in terms of Section 8(3) of the PC Act, 1947, as well as in terms of Section 5(3) of the PC Act, 1988, a Special Judge may take cognizance of offence without the accused being committed to him for trial and, in trying the accused person, he shall follow the procedure, prescribed by the Code, for trial of warrant cases by the Magistrate and that while exercising its powers, the Court of a Special Judge shall be deemed to be a Court of Session. It was, therefore, contended, in A.R. Antulay (supra), that a Special Court is not a Court of Magistrate, though it can take cognizance without the case being committed to it for trial and, hence, unlike a Magistrate, a Special Judge could not have taken cognizance on the basis of a complaint of fact constituting the offence. The Constitution Bench, in A.R. Antulay (supra), having pointed out that the Code perceives four distinct modes of taking of cognizance of offence, noted that there is, apart from the four modes, which the Code prescribes, (and which I have already mentioned at para 49 above) for the purpose of taking of cognizance, no other known or recognized mode of taking of cognizance of an offence by a criminal court exists and, hence, if a Court of a Special Judge is a criminal court, it cannot take cognizance of offence except in any one of the modes, which the Code prescribes. The relevant observations, made in this regard, in A.R. Antulay (supra), read as under: 17. Now the Code of Criminal Procedure prescribed only four methods of taking cognizance of an offence whether it be by a Magistrate or a Sessions Court is for the time being immaterial. The Code prescribes four methods for taking cognizance upon a complaint, or upon a report of the police officer or where the Magistrate himself comes to know of the commission of offence through some other source and in the case of Sessions Court upon a commitment by the Magistrate. There is no other known or recognised mode of taking cognizance of an offence by a criminal court. There is no other known or recognised mode of taking cognizance of an offence by a criminal court. Now if Court of Special Judge is a criminal court, which at least was not disputed, and jurisdiction is conferred upon the presiding officer of the Court of Special Judge to take cognizance of offences simultaneously excluding one out of the four recognised modes of taking cognizance, namely, upon commitment by a Magistrate as set out in Section 193, the only other method by which the Court of Special Judge can take cognizance of an offence for the trial of which it was set up, is any one of the remaining three other methods known to law by which a criminal court would take cognizance of an offence, not as an idle formality but with a view to initiating proceedings and ultimately to try the accused. If the language employed in Section 8(1) is read in this light and in this background that a Special Judge may take cognizance of offence without the accused being committed to him for trial, it necessarily implies that the Court of Special Judge is armed with power to take cognizance of offences but that it is denied the power to take cognizance on commitment by the Magistrate. This excludes the mode of taking cognizance under Section 193. Then remains only Section 190 which provides various methods of taking cognizance of offences by courts. 17. * * * 18.... Section 8(1) says that the Special Judge shall take cognizance of an offence and shall not take it on commitment of the accused. The Legislature provided for both the positive and the negative. It positively conferred power on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible therefore, to read Section 8(1) as canvassed on behalf of the Appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under Section 5-A illusory. 19. * * * 20. * * * 21. * * * 22. * * * 23. It is not possible therefore, to read Section 8(1) as canvassed on behalf of the Appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under Section 5-A illusory. 19. * * * 20. * * * 21. * * * 22. * * * 23. Once Section 5-A is out of the way in the matter of taking cognizance of offences committed by public servants by a Special Judge, the power of the Special Judge to take cognizance of such offences conferred by Section 8(1) with only one limitation, in any one of the known methods of taking cognizance of offences by courts of original jurisdiction remains untended. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take cognizance is upon receiving a complaint of facts which constitutes the offence. And Section 8(1) says that the Special Judge has the power to take cognizance of offences enumerated in Section 6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon commitment. It therefore, follows that the Special Judge can take cognizance of offences committed by public servants upon receiving a complaint of facts constituting such offences. 24. * * * 25. * * * 26. For more than one reason it is not possible to accept this submission. If Section 190 cannot be availed, we fail to see how a Special Judge would be entitled to take cognizance on a police report. If Section 190 is not attracted all the three modalities of taking cognizance of offences would not be available. One cannot pick and choose as it suits one's convenience. Either all the three modalities are available or none. And Section 8(1) which confers power of taking cognizance does not show any preference. On this short ground, the submission must be rejected. (Emphasis is added) 58. It has been pointed out by the Supreme Court, in A.R. Antulay (supra), that the Special Court is an addition to the classes of courts, which Section 6 of the Code provides for, and it is not necessary that a Special Court has to be either a Court of Magistrate or a Court of Session. Far from this, a Special Court, according to A.R. Antulay (supra), may be a combination of both. Far from this, a Special Court, according to A.R. Antulay (supra), may be a combination of both. Shorn of all embellishments, the Court of a Special Judge, Supreme Court observed, is a court of original criminal jurisdiction and, except those powers and functions, which are specifically conferred on such a court, or, specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session and that it will enjoy all the powers, which a court of original jurisdiction enjoys, save and except the ones, which are specifically denied. 59. The Supreme Court reiterates, at paragraph 28 of A.R. Antulay (supra), that the Court of Special Judge has to be treated as a court of original criminal jurisdiction and shall have all the powers, which a court of original criminal jurisdiction has under the Code, except those powers, which are specifically excluded. Having examined the matter from different angles, the Apex Court concluded, in A.R. Antulay (supra), that a private complaint, which may be filed by a complainant, is maintainable under the scheme of the P.C. Act, 1952, and that a court of Special Judge can take cognizance on the basis of such a complaint. The relevant observations, which appear at paragraph 27 and 28, in A.R. Antulay (supra), read as under: 27.... .... .... To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special courts. Section 6 conferred power on the State Government to appoint as many Special Judges as may be necessary with power to try the offences set out in Clauses (a) and (b). Now if at this stage a reference is made to Section 6 of the Code of Criminal Procedure which provides for constitution of criminal courts, it would become clear that a new court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of criminal courts functioning under the High Court. To this list was added the Court of a Special Judge. Now when a new court which is indisputably a criminal court because it was not even whispered that the Court of Special Judge is not a criminal court, is set up. As already pointed out, there were four types of criminal courts functioning under the High Court. To this list was added the Court of a Special Judge. Now when a new court which is indisputably a criminal court because it was not even whispered that the Court of Special Judge is not a criminal court, is set up. to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a Court of a Special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as Special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a Special Judge to take cognizance of offences for the trial of which a special court with exclusive jurisdiction was being set up. If a Special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different courts. Procedure for trial of a case before a Court of Session is set out in Chapter XVIII; trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up. the Legislature took the first step of providing its comparative position in the hierarchy of courts under Section 6 Code of Criminal Procedure by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Session because it can take cognizance of offences without commitment as contemplated by Section 193 Code of Criminal Procedure. Undoubtedly in Section 8(3) it was clearly laid down that subject to the provisions of Sub-sections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. In contra-distinction to the Sessions Court this new court was to be a Court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new court shall follow for trial of offences before it. Section 8(1)specifically says that a Special Judge in trial of offences before him shall follow the procedure prescribed in the Code of Criminal Procedure for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations namely, trial of a case initiated upon police report (Section 251-A) and trial of cases instituted otherwise than on police report (Section 252 to 257). If a Special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Sections 251-A to 257 of 1898 Code which are in pari materia with Sections 238 to 250of 1973 Code refers to what the Magistrate should do. Does the Special Judge therefore, become a Magistrate? This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8(1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression "Magistrate" occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate? What is to be done is that one has to read the expression "Special Judge" in place of Magistrate, and the whole thing becomes crystal clear.... What is to be done is that one has to read the expression "Special Judge" in place of Magistrate, and the whole thing becomes crystal clear.... When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a Court of a Special Judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the court and must be eschewed. Shorn of all embellishment, the Court of a Special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. 28. Section 9 of the 1952 Act would equally be helpful in this behalf. Once Court of a Special Judge is a Court of original criminal jurisdiction, it became necessary to provide whether it is subordinate to the High Court, whether appeal and revision against its judgments and orders would lie to the High Court and whether the High Court would have general superintendence over a Court of Special Judge as it has over all criminal courts as enumerated in Section6 of the Code of Criminal Procedure. The Court of a Special Judge, once created by an independent statute, has been brought as a Court of original criminal jurisdiction under the High Court because Section 9 confers on the High Court all the powers conferred by Chapters XXXI and XXXIII of the Code of Criminal Procedure, 1898 on a High Court as if the Court of Special Judge were a Court of Session trying cases without a jury within the local limit of the jurisdiction of the High Court. Therefore, there is no gainsaying the fact that a new criminal court with a name, designation and qualification of the officer eligible to preside over it with powers specified and the particular procedure which it must follow has been set up under the 1952 Act. The court has to be treated as a Court of original criminal jurisdiction and shall have all the powers as any Court of original criminal jurisdiction has under the Code of Criminal Procedure, except those specifically excluded. (Emphasis is added) 60. Section 5(3) of the P.C. Act, 1988, reads: "save as provided in Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor"; whereas Section 16(3) of the NIA Act reads: subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. 61. 61. If the provisions, contained in Section 5(3) of the P.C. Act, 1988, and Section 16(3) of the NIA Act are dispassionately analyzed, it becomes clear that under the NIA Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as the procedure, prescribed in the Code, for trial before a Court of Session is concerned. The expression, 'as if it were a Court of Session', does not mean that the Special Court would become a Court of Session or, when a Special Court is not constituted, the Court of Session, while functioning as the Special Court under the NIA Act, will remain as a Court of Session. Thus, as far as the trial of Scheduled offences are concerned, the Special Court will have the power of the Court of Session as far as such power is, in the light of the modified provisions of the NIA Act, exercisable as regards the procedure of trial by the Special Court or the Court of Session, as the case may be. But, so far as taking of cognizance of Scheduled offences is concerned, the Special Court's role is of the court of original criminal jurisdiction. 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. 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. 62. Thus, a Special Court, under the NIA Act, also exercises the power of a Magistrate as contemplated under Section 167 of the Code, when the case is pending for investigation, though such a Court has the power of a Court of Session so far as the trial is concerned except, of course, to the extent as its power may stand modified by the relevant provisions of the statute enacted in this regard. It is only in exceptional circumstances, as provided by Section 167(2-A) of the Code, that an accused, who is arrested in connection with an offence, under such a 'special law', as the NIA Act is, can be produced before a Magistrate for the purpose of transit to the Special Court, if immediate production, as envisaged by Section 167, before the Special Court of competent jurisdiction, is not possible, or, unless the 'special law' itself provides for such powers of production before a Magistrate. For instance, in a case, under the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short, 'the NDPS Act'), production of an arrested accused before a Judicial Magistrate, instead of a Special Court, is permissible, and such Magistrate may order detention of such a person, in custody, for a period not exceeding fifteen days. This can be well-understood by a reference to the scheme of the NDPS Act, which empowers a Special Court to take cognizance of an offence on the basis of 'police report'. Since no commitment as provided in Section 209 Code of Criminal Procedure. is required to be made in the NDPS Act, the power to remand the accused to the police or judicial custody has to be exercised by the Special Court, constituted under the NDPS Act. Since no commitment as provided in Section 209 Code of Criminal Procedure. is required to be made in the NDPS Act, the power to remand the accused to the police or judicial custody has to be exercised by the Special Court, constituted under the NDPS Act. In order to, however, enable the investigating agency to produce an accused in connection with an offence under the NDPS Act, before a Court other than a Special Court, specific provisions, in the form of Section 36(a)(b) in the NDPS Act, have been made, which empower a Magistrate to remand to custody such an accused for the initial period of 15 days. But, thereafter, the accused can be detained only on the basis of remand order passed by the Special Court or where the Special Court, under the NDPS Act, has not been constituted, by the Court of Session. As a corollary, what one can very safely conclude is that unless a 'special law' provides a Magistrate to pass orders of remand despite the Special Court (if the Special Court has been constituted or the Court of Session, when a Special Court has not been constituted), no order of remand of such an accused can be made by a Magistrate except during the transit period as contemplated by Section167(2-A) of the Code or where the statute itself provides for such production before some other authority, such as, a Judicial Magistrate, as in the case of NDPS Act. Now, the question is: when such an arrested person applies for bail, whether the application for bail, so made, would be treated to be an application under Section 439 of the Code on the ground that a Special Court has the power of a Court of Session so far as the trial of the offence is concerned or is the Special Court, when such Court is constituted, or the Court of Session, when the Special Court has not been constituted, as the case may be, can entertain such an application for bail only in terms of Section 437 of the Code? 63. 63. The question, therefore, is this: When a person, arrested in connection with a Scheduled offence, is, on being taken into custody, brought, or pursuant to the fact that he is wanted in connection with a Scheduled offence, appears, before a Special Court, when a Special Court stands constituted under the NIA Act, or before a Court of Session, when the Special Court has not been constituted, what is the source of power, if any, of the Special or of the Court of Session, as the case may be, to consider an application for bail, if such an accused applies for bail. Will a Special Court or Court of Session exercise powers in respect of such an application for bail under Section 437 or 439 of the Code or under some other provisions of the NIA Act? In order to reach a correct answer to this question, one has to carefully analyse the provisions of Section 437 vis-a-vis Section 439. With this end in view, both these sections are reproduced hereinbelow: 437. When bail may be taken in case of non-bailable offence. - (1). In order to reach a correct answer to this question, one has to carefully analyse the provisions of Section 437 vis-a-vis Section 439. With this end in view, both these sections are reproduced hereinbelow: 437. When bail may be taken in case of non-bailable offence. - (1). When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, of he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years: Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason. Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI of the Indian Penal Code (45 of 1860) or abetment of, or attempt to commit, any such offence, is released on bail under Sub-section (1) the Court shall impose the conditions,- (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under Sub-section (1), or Sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If. (5) Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If. in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of any non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 439. Special powers of High Court or Court of Session regarding bail. - (1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: 64. From a careful reading of the provisions contained in Section 437(1), what becomes transparent is that Section 437(1) gives power to grant bail to a court 'other than the High Court or Court of Session'. Admittedly, a Special Court, under the NIA Act, is not a Court of Session and even the Court of Session, while acting as the Special Court under the NIA Act, does not, as already discussed above, act as a Court of Session. The Special Court is also not a High Court, for, a Special Court, as defined in Section 2(h), is a Court, which is constituted, under Section 11, by the Central Government or, under Section 22, by a State Government. The Special Court is also not a High Court, for, a Special Court, as defined in Section 2(h), is a Court, which is constituted, under Section 11, by the Central Government or, under Section 22, by a State Government. The expression, 'a Court other than the High Court, or the Court of Session', has very wide meaning and includes, within its ambit, not only the Magisterial Courts, but all such Courts, including a Special Court, which do not fall within the expressions, 'the High Court' or 'the Court of Session'. A Special Court, under the NIA Act, not being a High Court, or a Court of Session, would obviously fall within the expression 'a Court other than the High Court or the Court of Session'. 65. It is also well to remember that merely because of the fact that a Court of Session can function as a Special Court if Special Court is not constituted under a special law, it does not follow that the Court of Session, which exercises the powers of the Special Court, would become a Court of Session. In the given scheme of a 'special law', a Court of Session, as already pointed out in A.R. Antulay (supra), may become a Court of original jurisdiction with no trappings of the Court of Session. In such circumstances, merely because of the fact that a Sessions Judge exercises the jurisdiction of a Special Court, the Special Court would not be treated, or would not be deemed, to have become, a Court of Session. When the Special Court, in the case at hand, falls within the expression, 'a Court other than the High Court or the Court of Session', which appears in Section437(1), it logically follows that a Special Court would run all the limitations, which are imposed by Section 437 on the powers of a Court, covered by Section 437, in respect of granting of bail. Logically extended, this will mean that, amongst other limitations, as specified by Sub-section (1) of Section 437, a Special Court would not be able to release a person on bail if there appears a reasonable ground for believing that he has been guilty of offences punishable with death or imprisonment for life except when a case is covered by the proviso to Section 437(1), which says that even such an accused person may be released, if the accused person is a woman or is sick or is infirm or if, for any other special reason, the Special Court considers it just and proper to release such a person. 66. Unlike, therefore, the powers, which a Court of Session enjoys, while considering a bail application, under Section 439, the Special Court runs the limitations, which are imposed by Section 437. Resultantly, therefore, a Special Court cannot enlarge a person on bail except to the extent as provided in Section 437. Apart from the limitations imposed on the powers of a Special Court as are prescribed by Section 437, even the special statute, which creates the Special Court, can impose additional limitations. No wonder, therefore, that the power to grant bail, in the case of NDPS, is much more restricted than what Section 437 provides inasmuch as Section 37 of the NDPS imposes further limitations, on the Special Court, in matters of granting bail and such limitations would apply to a Sessions Judge even if he acts as a Special Court under the NDPS Act, for, while exercising the powers of a Special Court, the Session Judge does not act or function as a Court of Session, but as a Court of ordinary criminal jurisdiction. 67. I may pause, at this stage, to point out that with the object of prevention of, and for coping with terrorist and disruptive activities and for matters connected with or incidental thereto, the Terrorist and Disruptive Activities (Prevention) Act, 1987, popularly known as 'TADA', was enacted. Section 20(8) of the TADA contained provisions with regard to the Designated Court's power to grant bail, the Designated Court being a Court constituted, under the TADA, to try offences under the TADA. Section 20(8) of the TADA contained provisions with regard to the Designated Court's power to grant bail, the Designated Court being a Court constituted, under the TADA, to try offences under the TADA. Section 20(8) read: (8) Notwithstanding anything contained in the Code, no person, accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be 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 there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 68. In Usmanbhai Dawoodbhai Memon (supra), which the learned Public Prosecutor has relied upon, the Supreme Court had an occasion to consider the question as to whether Section 439 of the Code could be invoked by a person accused of an offence under the TADA? Yet Anr. question, which arose, in Usmanbhai Dawoodbhai Memon (supra), was as to whether the source of power of the Designated Court to grant bail was Section 20(8) of the TADA, which I have quoted above, or Section 437 of the Code. 69. In Usmanbhai Dawoodbhai Memon v. State of Gujarat reported in (1988) 2 SCC 271 , the application for bail having been refused by the Designated Court constituted under the TADA Act, the accused had applied for bail to the High Court under Section 439 read with Section 482 of the Code. The High Court rejected the bail application on the ground that it had no jurisdiction to entertain any such application under Section 439 or by taking recourse to its inherent powers under Section 482 Code of Criminal Procedure. The High Court rejected the bail application on the ground that it had no jurisdiction to entertain any such application under Section 439 or by taking recourse to its inherent powers under Section 482 Code of Criminal Procedure. The reason, assigned by the High Court, was that the TADA Act, being a special enactment and the Designated Court, constituted thereunder, not being a Court subordinate to the High Court, and, further, that in view of the provisions contained in Sub-section (1) of Section 19 of the Act, which provided that an appeal, as a matter of right, shall lie, against any judgment, sentence or order of the Designated Court, not being an interlocutory order, to the Supreme Court, and in view also of the explicit bar, contained in Sub-section (2) thereof, which provided that no appeal or revision shall lie before any court, there was exclusion of jurisdiction of the High Court in regard to the proceedings before a Designated Court. 70. It was also urged before the Supreme Court, in Usmanbhai Dawoodbhai Memon (supra), that since a Court of Session, in the absence of constitution of a Designated Court, can exercise the powers of the Designated Court, the source of power to grant bail is Section 439 and not Section 437 of the Code. This was resisted by the Government by contending that the source of power of a Designated Court is really traceable to Section 437 and not Section 439 and that a Designated Court is nothing, but, 'a Court other than the High Court or the Court of Session', an expression, which appears in Sub-section (1) of Section 437. This construction was accepted by the Court in Usmanbhai Dawoodbhai Memon (supra). The Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that the use of ordinary courts does not imply use of standard procedure too. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing system and though the Parliament, in its wisdom, has adopted the framework of the Code, yet the Code is not applicable except to the extent as the provisions, contained in the TADA, make it possible to apply the provisions of the Code. 71. 71. It is worth noticing that the Apex Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that the jurisdiction and power of a Designated Court are derived from the TADA and it is the TADA that one must, primarily, look to, for the purpose of deciding the question as to whether the Designated Court's power to grant bail is relatable to Section 437 or 439 and/or whether the High Court has the power to invoke its jurisdiction, under Section 439 or 482, to grant bail under the TADA, and, having examined the entire scheme of the TADA, the Apex Court, in Usmanbhai Dawoodbhai Memon (supra), concluded that the source of the power of a Designated Court to consider bail is traceable to Section 437 and not Section 439 inasmuch as the Designated Court falls within the expression, "a Court other than the High Court or the Court of Session". 72. Similarly, in the case at hand, one has to, primarily, look into the provisions of the scheme of the NIA Act in order to determine if the power of the Special Court, or the Court of Session, as the case may be, in respect of grant of bail, is relatable to Section 437 or 439 and/or whether the High Court has the power to grant bail to an accused, under the NIA Act, by invoking its jurisdiction under 439 of the Code. 73. I may pause here to point out that Section 16(3) of the NIA Act states, Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session." Similar provisions existed in Section 14(3) of TADA. Both the provisions are, thus, peri materia. The Supreme Court had the occasion to interpret Section14(3) of the TADA in Usmanbhai Dawoodbhai Memon (supra). Both the provisions are, thus, peri materia. The Supreme Court had the occasion to interpret Section14(3) of the TADA in Usmanbhai Dawoodbhai Memon (supra). Referring to the expression 'as if it were', appearing in Section 3 of the TADA, the Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that though the Parliament has vested, by using the words, 'as if it were', in the Designated Court, the status of a Court of Session, yet this legal fiction, contained in Section 14(3), must be restricted to the procedure to be followed for trial of an offence under the TADA. i.e., trial must be in accordance with the procedure prescribed, by the Code, in respect of a trial before a Court of Session in so far as it is applicable. The relevant observations, made in this regard, which appear at para 18, read as under: 18. No doubt, the legislature by the use of the words "as if it were" in Section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. We must give some meaning to the opening words of Section 14(3) "subject to the other provisions of the Act" and adopt a construction in furtherance of the object and purpose of the Act. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. The expression "High Court" is defined in Section 2(1)(e) but there are no functions and duties vested in the High Court. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. The expression "High Court" is defined in Section 2(1)(e) but there are no functions and duties vested in the High Court. The only mention of the High Court is in Section 20(6) which provides that Sections 366-371 and Section 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court, subject to the modifications that the references to "Court of Session" and "High Court" shall be construed as references to "Designated Court" and "Supreme Court" respectively Section 19(1) of the Act provides for a direct appeal, as of right, to the Supreme Court from any judgment or order of the Designated Court, not being an interlocutory order. There is thus a total departure from different classes of criminal courts enumerated in Section 6 of the Code and a new hierarchy of courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court, not being an interlocutory order, and substituting the Supreme Court for the High Court by Section 20(6)in the matter of confirmation of a death sentence passed by a Designated Court. 74. Having held that the source of power of a Designated Court, under the TADA, to grant bail is traceable to Section 437 inasmuch as the Designated Court falls within the expression 'a Court other than the High Court or Court of Session', the Apex Court further clarified that the Designated Court's power to grant bail is not contained in Section 20(8); rather, Section 20(8) places only limitations on such power in addition to the limitations, which the Code has already imposed, on a Designated Court, by making it a Court within the ambit of Section 437. This was made explicit by Section 20(9), which provided that the limitations on the granting of bail, specified in Sub-section (8), are in addition to the limitations under the Code or any other law for the time being in force. 75. This was made explicit by Section 20(9), which provided that the limitations on the granting of bail, specified in Sub-section (8), are in addition to the limitations under the Code or any other law for the time being in force. 75. The Apex Court has also pointed, in Ushmanbhai Dawoodbhai Memon v. State of Gujarat (supra), that the powers of the High Court to entertain even an appeal has not been made available under the TADA inasmuch as an appeal lies, under Section 19 of the TADA, to the Supreme Court against any judgment, sentence or order passed by the Designated Court. Pointing out that the State has enacted TADA Act by treating terrorism as a special problem and created a Special Court to deal with such problem, the fact that even under the TADA, the ordinary courts are being used under the scheme of the Act, it does not. as a corollary, imply that since the ordinary courts are being used, standard procedure, which ordinary courts adhere to, must be followed by the Special Court too. The Apex Court has pointed out that when the legislature can create a Special Court to deal with a special problem, it can also create a new procedure within the existing system and, in the case of TADA, while the Parliament, in its wisdom, has adopted the framework of the Code, it has chosen not to apply the procedures of the Code in its entirety and since the jurisdiction and the powers are derived by a Designated Court from the TADA, it is the TADA. which should decide the question as to whether a High Court can invoke its powers, under Section 439 and/or 482 of the Code, for the purpose of considering an application for bail, or not. The relevant observations, appearing at para 17, read: 17. The legislature by enacting the law has treated terrorism as a special criminal problem and created a special court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. A grievance was made before us that the State Government by notification issued under Section 9(1) of the Act has appointed District and Sessions Judges as well as Additional District and Sessions Judges to be judges of such Designated Courts in the State. A grievance was made before us that the State Government by notification issued under Section 9(1) of the Act has appointed District and Sessions Judges as well as Additional District and Sessions Judges to be judges of such Designated Courts in the State. The use of ordinary courts does not necessarily imply the use of standard procedures. Just as the legislature can create a special court to deal with a special problem, it can also create new procedures within the existing system. Parliament in its wisdom has adopted the framework of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Sections 3(1) and 4(2) and provides for a special procedure for the trial of such offences. Under Section 9(1), the Central Government or a State Government may by notification published in the Official Gazette, constitute one or more Designated Courts for the trial of offences under the Act for such area or areas, or for such case or class or group of cases as may be specified in the notification. The jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look to in deciding the question before us. Under Section 14(1), a Designated Court has exclusive jurisdiction for the trial of offences under the Act and by virtue of Section 12(1), it may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code. 76. Leaving no one in doubt that the source of power of a Designated Court, under the TADA, to grant bail is traceable to Section 437 of the Code and not to Section 20(8) and that Section 20(8) merely imposes limitations in addition to the limitations, which Section 437 already imposes, the Supreme Court observed and held at para 20 thus: ...It is quite obvious that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations on granting of bail specified in Sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. It, therefore, follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from Section 20(8) of the Act. 77. What emerges from the above discussion is that it is the Special Court under the NIA Act, or the Court of Session, when the Special Court has not been constituted, where an accused is required to be produced if he is arrested in connection with an offence punishable under the NIA Act and, upon his production, it is the Special Court or the Court of Session, as the case may be, which shall have the power to grant bail. The source of power of the Special Court or the Court of Session, as the case may be, to consider an application for bail is traceable to, and governed by, the provisions of Section 437 of the Code and while considering such an application for bail, the Special Court or the Court of Session, as the case may be, will not exercise the power of bail as if it is considering an application for bail under Section 439 and, consequently, the Special Court or the Court of Session, as the case may be, would have all the limitations, which a Magistrate has, while deciding an application for bail, under Section437 of the Code. 78. Having, thus, settled the fact that under the NIA Act, the Special Court or the Court of Session, as the case may be, 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, let me, 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 439. 79. 79. Before proceeding further, it may be noted that Section 20(7) of the TADA barred application of Section 438 of the Code to the offence punishable under the TADA. Thus, the provisions, contained in Section 438, could not have been invoked by a High Court if a person, apprehending arrest in connection with an offence under the TADA, applied for pre-arrest bail; but there was not such express bar imposed on the High Court's power as far as Section 439 of the Code was concerned. Recognising this fact, the Apex Court, in Usmanbhai Dawoodbhai Memon (supra), held that though there is no express provision excluding applicability of Section 439, similar to the one as contained in Section 20(7), which expressly barred the application of Section 438 of the Code, the scheme of the TADA, if analysed, leads to the same conclusion that applicability of Section439 stands barred. The relevant observations, made in this regard, in Usmanbhai Dawoodbhai Memon (supra), which appear at para 19, read as under: 19. Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are "in addition to the limitations under the Code or any other law for the time being in force". But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is "a court other than the High Court or the Court of Session" within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act. 80. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act. 80. I may, now, pause here to point out that Section 19 of the TADA contained provisions for appeal, which read as under: 19. Appeal-(1) Notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order, of a Designated Court to the Supreme Court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Designated Court. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment; sentence or order appealed from: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days. 81. Sub-section (1) of Section 19 made it clear that notwithstanding anything contained in the Code, an appeal would lie, as a matter of right, to the Supreme Court from any judgment, sentence or order, not being an interlocutory order, of a Designated Court, both on facts and on law. Section 19(2) made it clear that no other appeal or revision would lie to any Court from any judgment, sentence or order, including an interlocutory order, of a Designated Court. The effect was that since the High Court had no jurisdiction in respect of any judgment, sentence or order, including an interlocutory order, of a Designated Court to entertain an appeal or a revision, it logically followed that even in respect of an order, refusing bail, which is an interlocutory order, no appeal or revision could have lied to the High Court against the order of a designated Court refusing to grant bail. Making this position of law clear, the Apex Court, in Usmanbhai Dawoodbhai Memon (supra), observed that though, unlike Section 20(7), which expressly barred the High Courts from entertaining an application for pre-arrest bail under Section 438 of the Code in respect of an offence under the TADA, the jurisdiction of the High Court to entertain an appeal or revision, including an application under Section 439. stands, by necessary implication, excluded. The Supreme Court also pointed out that if it were held that the source of power of the Designated Court to grant bail is Section 439, it would imply that not only the High Court, but also the Court of Session would be entitled to grant bail on such terms as it deems fit, for, the power to grant bail, under Section 439, is unfettered by the conditions and limitations, which Section 437, otherwise, imposes; and it would, thus, run counter to the express prohibition contained in Section 20(8) of the Act, which enjoins that notwithstanding anything in the Code, no person, accused of an offence, punishable under the Act or any rule made thereunder, shall, if in custody, be released on bail unless the conditions set forth in Clauses (a) and (b) are satisfied. 82. The Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that it all depends on the scheme of a particular enactment as to whether the power of the High Court and/or of the Court of Session to grant bail, under Section 438 and 439, exists or not. The Apex, in Usmanbhai Dawoodbhai Memon (supra), upheld the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code. The relevant observations, made in this regard, at para 22, in Usmanbhai Dawoodbhai Memon (supra), read: 22. Upon that view, the court in Balchand Jain case held that Rule 184 of the Defence and Internal Security of India Rules, 1971, does not take away the power conferred on a Court of Session or a High Court under Section 438 of the Code to grant anticipatory bail. Upon that view, the court in Balchand Jain case held that Rule 184 of the Defence and Internal Security of India Rules, 1971, does not take away the power conferred on a Court of Session or a High Court under Section 438 of the Code to grant anticipatory bail. We have been referred to the decision of R.S. Pathak, C.J. speaking for a Division Bench of the Himachal Pradesh High Court in Ishwar Chand v. State of Himachal Pradesh holding that Rule 184 did not affect the jurisdiction and power of the High Court under Sections 438 and 439 of the Code which were independent of the power of the special tribunal to try an offence for contravention of an order made under Section 3 of the Defence and Internal Security of India Act, 1971. Both these decisions are clearly distinguishable. The view expressed in Balchand Jain case is not applicable at all for more than one reason. There was nothing in the Defence and Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether. On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2). there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further, while it is true that Chapter 33 of the Code is still preserved as otherwise the Designated Courts would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in Clauses (a) and (b) are satisfied. Lastly, both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defence and Internal Security of India Act, 1971. They proceed on the well recognised principle that an ouster of jurisdiction of the ordinary courts is not to be readily inferred except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code. 83. Thus, in no uncertain words, the Apex Court, in Usmanbhai Dawoodbhai Memon (supra), held that with regard to bail, under the TADA, the High Court's jurisdiction, under Section 439 as well as Section 482 of the Code stood excluded. 84. In V.C. Shukla v. State reported in 1980 Supp SCC 92, the Apex Court has pointed out that the expression 'interlocutory order', which appears in Section 19(1), is in contradistinction to what is known as 'final order' and denotes an order of purely interim or temporary nature. The Apex Court further observed, in V.C. Shukla (supra), that it cannot be doubted that grant or refusal of bail is, essentially, an interlocutory order, for, there is no finality attached to an order granting or refusing bail and such an application for bail can always be renewed from time to time. The Apex Court further observed, in V.C. Shukla (supra), that it cannot be doubted that grant or refusal of bail is, essentially, an interlocutory order, for, there is no finality attached to an order granting or refusing bail and such an application for bail can always be renewed from time to time. Referring to this aspect of the law decided in VC Shukla (supra), the Supreme Court, in no uncertain words, observed, in this regard, at para 24, in Usmanbhai Dawoodbhai Memon (supra), thus: 24. At the conclusion of the hearing on the legal aspect, Shri Poti, Learned Counsel appearing for the State Government contended, on instructions, that an order passed by a Designated Court for grant or refusal of bail is not an "interlocutory order" within the meaning of Section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression "interlocutory order" has been used in Section 19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council. Federal Court and this Court. One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in Anr. way, then the proceedings would continue. In V.C. Shukla v. State, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word "judgment" is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word "judgment" is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in Section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The court must interpret the words "not being an interlocutory order" used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under Section 19(1) of the Act, cannot be accepted. 85. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under Section 19(1) of the Act, cannot be accepted. 85. What surfaces from the above discussion is that Usmanbhai Dawoodbhai Memon (supra), held, in categorical terms, that neither the Designated Court nor the High Court could have exercised power to grant bail by taking recourse to Section 439 of the Code and whereas the Designated Court's source of power to grant bail was traceable to Section 437, the High Court's power to grant bail under Section 439 of the Code stood wholly excluded. The Supreme Court also held, in Usmanbhai Dawoodbhai Memon (supra), that an order of bail, being an 'interlocutory order', was also not an appeallable order, under Section 19(1), to the Supreme Court. 86. Thus, if a Designated Court happened to refuse to grant bail to an accused under TADA, neither any of the provisions of the Code nor any of the provisions of the TADA could have been resorted to for the purpose of granting bail by the High Court. In fact, a person, arrested under the TADA, had no remedy if the Designated Court refused to grant him bail except, perhaps, approaching the High Court under Article 226 and/or 227or, in an appropriate case, the Supreme Court seeking to invoke its jurisdiction under Article 136. In fact, in Usmanbhai Dawoodbhai Memon (supra), the Supreme Court exercised its power, under Article 136, to issue certain directions to the Designated Court. 87. In Narcotics Control Bureau v. Kishan Lal reported in (1991) 1 SCC 705 , the question arose as to whether High Court's power to grant bail under Section 439 is restricted by the provisions of Section 237(2) of the NDPS Act. In Kishan Lal's case, the Supreme Court had an occasion to refer to, and explain, the principles laid down in Usmanbhai Dawoodbhai Memon (supra) and pointed out that Usmanbhai Dawoodbhai Memon (supra) recognizes that fetters can be imposed on the powers of even the High Court in respect of granting bail under Section439. 88. In Kishan Lal's case, the Supreme Court had an occasion to refer to, and explain, the principles laid down in Usmanbhai Dawoodbhai Memon (supra) and pointed out that Usmanbhai Dawoodbhai Memon (supra) recognizes that fetters can be imposed on the powers of even the High Court in respect of granting bail under Section439. 88. Referring to the decision in Usmanbhai Dawoodbhai Memon (supra), the Apex Court observed, in Kishan Lal (supra), that it had been contended, in Usmanbhai Dawoodbhai Memon (supra), that to take away the power of the High Court to grant bail, under Section 439 of the Code, would be tantamount to striking at the very foundation of an independent judiciary free from executive control, but disagreeing with such a view, the Supreme Court had held, in Usmanbhai Dawoodbhai Memon (supra), that the High Court's power, under Section 439, did stand excluded. 89. As there was not only serious resentment, but uproar against the manner in which TADA had been enforced and the mechanism, conceived thereunder, were unutilized, the TADA was allowed to elapse. However, as the evils of terrorism continued, the Government sought to introduce the Prevention of Terrorism Bill, 2000. This Bill was forwarded to the Law Commission of India for its views and recommendations. The views and recommendations of the Law Commission of India appear in its 173rd Report. Chapter VI of this Report relates to 'suggestions for inclusion of certain additional provisions in the bill'. The relevant portion of Chapter VI is, therefore, extracted below: CHAPTER VI SUGGESTIONS FOR INCLUSION OF CERTAIN ADDITIONAL PROVISIONS IN THE BILL (a) It was suggested by Mr. Prashant Bhuhan, Advocate, Supreme Court that there should be a provision for appeal against an order refusing bail. We are inclined to agree with this plea. But the appeal should be not only against an order refusing bail but also against an order granting bail. Accordingly, it recommended that the following provision be inserted as Sub-section (5) in Section 17 of the Act: (5) Notwithstanding anything contained in the Code, an appeal shall lie to the Special Court, against an order of the Court, granting or refusing bail. 90. Accordingly, it recommended that the following provision be inserted as Sub-section (5) in Section 17 of the Act: (5) Notwithstanding anything contained in the Code, an appeal shall lie to the Special Court, against an order of the Court, granting or refusing bail. 90. From what have been extracted above, it becomes abundantly clear that since there was no provision for appeal, under the TADA, against an order refusing bail, it was suggested to the Law Commission that some provision for appeal against an order refusing bail should be made in the Prevention of Terrorism Bill, 2000. When this suggestion was offered, to the Commission, the Commission took the view that if a right of appeal should be provided against an order refusing bail, it would be appropriate to provide an appeal against an order granting bail too. The Law Commission, therefore, suggested insertion of Section 17(5) to the proposed Bill, which, if incorporated, would have meant that notwithstanding anything, which the Code may contain, an appeal shall lie to the High Court against an order of a Special Court, to be constituted under the POTA, granting or refusing to grant bail. It is in this backdrop of legislative history that Section 34, which provided for appeal under the POTA Act, 2002, needs to be, now, considered. Section 34 is, therefore, reproduced below: Appeal.- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. Explanation.--For the purposes of this section, "High Court" means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated. (2) Every appeal under Sub-section (1) shall be heard by a bench of two Judges of the High Court. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in Sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in Sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days. 91. Let me, now, pause and refer to Section 21 of the NIA Act, which too make provisions for appeal. Section 21 reads: Appeals. 21. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under Sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4) Notwithstanding anything contained in Sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of die judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days. 92. 92. A cautious and minute examination of Section 34 of the POTA Act vis-a-vis Section 21 of the NIA Act shows that Sub-section (4) of Section 21and Section 34(4) are pari materia. In fact, this position is not in dispute before me. 93. To a pointed query made by this Court if Section 21(4) of the NIA Act has been tested anywhere in the country, Mr. D.K. Das, learned Senior Counsel, appearing on behalf of the National Investigation Agency, has pointed out that the scope of Section 21 has not yet been finally tested any where in the country and submitted, correctly, that Section 34 of the POTA was, however, tested before the Supreme Court, in State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors. reported in (2003) 8 SCC 50 . Even Mr. Z. Kamar, learned Public Prosecutor, in his usual fairness, candidly concedes that in the face of the decision of the Supreme Court, in Salimbhai Abdulgaffar Shaikh (supra), an application for bail, under Section 439 of the Code, will not lie to the High Court under the scheme of the NIA Act, against an order refusing or granting bail. 94. Before I deal with the case of Salimbhai Abdulgaffar Shaikh (supra), I must mention that notwithstanding the fact that Mr. Das has placed, on record, the views of the Central Government that in view of the fact that Special Court has not yet been constituted, the High Court can invoke its power under Section 439 of the Code, Mr. Das, in the true spirit of an officer of the Court, has not withheld the fact that the decision, in Salimbhai Abdulgaffar Shaikh (supra), which I would, now, deal with, does lay down that Section 439 would not be available in respect of offences under the POTA. 95. In Salimbhai Abdulgaffar Shaikh (supra), the Gujarat High Court, by invoking Section 439, granted bail to persons, accused of offence, punishable under POTA. This was put to challenge. The Supreme Court pointed out that Section 34(1) lays down that an appeal shall lie from any judgment, sentence or order, not being an 'interlocutory order' of a Special Court, to the High Court both on facts and law. The relevant observations, made in this regard, read as under: 8. This was put to challenge. The Supreme Court pointed out that Section 34(1) lays down that an appeal shall lie from any judgment, sentence or order, not being an 'interlocutory order' of a Special Court, to the High Court both on facts and law. The relevant observations, made in this regard, read as under: 8. Sub-section (1) of Section 34 of POTA lays down that an appeal shall lie from any judgment, sentence or order not being an interlocutory order of a Special Court to the High Court both on facts and law and in view of Sub-section (2), the appeal has to be heard by a Bench of two Judges. Normally an order granting or refusing bail is an interlocutory order and no appeal would lie. However, in view of Sub-section (4) of Section 34 an appeal shall lie to the High Court against such an order. Under the scheme of POTA, there is a clear departure in the matter of grant of bail from that of the Code of Criminal Procedure. The provisions regarding bail in the Code of Criminal Procedure are contained in Sections 436 to 439. Sub-section (1) of Section 439 confers power upon the Court of Session and the High Court to grant bail to any person accused of having committed a non-bailable offence. Sub-section (2) of Section 439 deals with cancellation of bail and provides that any person who has been released on bail under Chapter XXXIII may be arrested and committed to custody. There is no provision for appeal under the Code of Criminal Procedure against an order refusing or granting bail. 96. Referring to its earlier decisions in State v. Capt. Jagjit Singh AIR 1962 SC 252 and Gurcharan Singh v. State (Delhi Admn) reported in (1978) 1 SCC 118 , the Supreme Court, in Salimbhai Abdulgaffar Shaikh (supra), observed: 9. The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 252 and Gurcharan Singh v. State (Delhi Admn) reported in (1978) 1 SCC 118 , the Supreme Court, in Salimbhai Abdulgaffar Shaikh (supra), observed: 9. The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh and Gurcharan Singh v. State (Delhi Admn.) and basically they are--the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. While hearing an application for cancellation of bail under Sub-section (2) of Section 439 of the Code, the courts generally do not examine the merits of the order granting bail. What is normally relevant to be examined in such a proceeding is whether the accused is trying to tamper with the evidence subsequent to his release on bail or has threatened the witnesses or has committed any other offence while on bail or is trying to adopt dilatory tactics resulting in delay of trial or has absconded or that the offence committed by him has created serious law and order problem. The court has, to see as to whether the accused has misused the privilege of bail granted to him. Only in exceptional cases where the order granting bail is vitiated by any serious infirmity and in the interest of justice it becomes necessary to interfere with the discretion exercised in granting bail that the order would be interfered with on merits. 97. Further explaining the scope of Section 34(4), the Apex Court observed, in Salimbhai Abdulgaffar Shaikh (supra), at para 10 and 11, thus: 10. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word "appeal" is used both in the Code of Criminal Procedure and the Code of Civil Procedure and in many other statutes but it has not been defined anywhere. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word "appeal" is used both in the Code of Criminal Procedure and the Code of Civil Procedure and in many other statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning which is as under: A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, especially the submission of a lower court's decision to a higher court for review and possible reversal. An appeal, strictly so-called, is one in which the question is, whether the order of the court from which the appeal is brought was right on the material which the court had before it. An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial. An appeal, generally speaking, is a rehearing by a superior court on both law and fact. 11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court, and in view of the express language used in Sub-section (1) of Section 34of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under Sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is, therefore, evident that the provisions of POTA are in clear contradistinction with that of the Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court. 98. In the light of the observations made above, it becomes clear that an appeal is a proceeding to rectify an erroneous decision of a Court both on facts as well as on law. An order, granting or refusing bail, could have been, in the light of the provisions of Section 34(4), examined on merit by the High Court without any other fetters and while considering a question of cancellation of bail the general principles, governing Section 439(2) of the Code, would not come in the way. The Apex Court, in Salimbhai Abdulgaffar Shaikh (supra), while laying down that the scheme for appeal, under the POTA, is in contradistinction to that of the Code, pointed out that an appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing or granting bail, the accused cannot prefer appeal to the High Court seeking bail. What, further, follows from the above discussion is that even a High court could not have invoked its power, under the Section 439, to grant bail to a person, accused of an offence under the POTA. Consequently, in order to obtain release on bail, an accused person, arrested under the POTA, was required to, first, apply for bail to the Special court, where the Special Court was constituted, or to the Court of Session, where the Special Court was not constituted, and, if his application for bail was rejected, then and then only he could have preferred an appeal against the order refusing bail. Similarly, even the State could have preferred an appeal if the Special Court or the Court of Session, as the case may be, happened to grant bail to such an accused person in exercise of powers under Section 437 of the Code. 99. Similarly, even the State could have preferred an appeal if the Special Court or the Court of Session, as the case may be, happened to grant bail to such an accused person in exercise of powers under Section 437 of the Code. 99. Though it was contended, in Salimbhai Abdulgaffar Shaikh (supra), that TADA had not taken away the High Court's power under Section 439, the Supreme Court, referring to Usmanbhai Dawoodbhai Memon (supra), held that there was complete exclusion of the jurisdiction of the High Court, under the TADA, to entertain abail application made under Section 439 and that this view was reiterated in State of Punjab v. Kewal Singh reported in 1990 Supp SCC 147. The Apex Court concluded, at para 14, in Salimbhai Abdulgaffar Shaikh (supra), thus: 14. That apart, if the argument of the 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 Code of Criminal Procedure in the original or concurrent jurisdiction, which may be heard by a Single Judge or may prefer an appeal 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. 100. In the light of what has been laid down in Salimbhai Abdulgaffar Shaikh (supra), there can be no escape from the conclusion that Section34(4) of the POTA had made provisions for appeal if an application for bail made to the Special Court was rejected or if bail was granted. In either case, provisions for appeal were, thus, made. 101. It is, now, imperative to point out that Section 21(4) of the NIA Act is in no way different from Section 34(4) of the POTA. Both the provisions are not only similar, but also same. Hence, the provisions, contained in Section 21(4) of the NIA Act, and the provisions, contained in Section 34(4), of the POTA, can be given one and the same meaning. Both the provisions are not only similar, but also same. Hence, the provisions, contained in Section 21(4) of the NIA Act, and the provisions, contained in Section 34(4), of the POTA, can be given one and the same meaning. Situated thus, it becomes clear that when a person is forwarded to a Special Court, where the Special Court is constituted, or to the Court of Session, where no Special Court is constituted, the accused can make an application for bail; but this application would fall under Section 437 and not under Section 439, though even a Court of Session, in the absence of constitution of a Special Court, may be the Court to which such an accused is forwarded. An accused, who has been taken into custody in connection with any offence under the NIA Act, cannot apply to the High Court seeking bail, under Section 439 of the Code, without making any application to the Special Court or Court of Session, as the case may be, under Section 437 nor can the accused, on rejection of his application for bail by the Special or the Court of Session, as the case may be, under the NIA Act, apply to the High Court to invoke the High Court's jurisdiction under Section 439. However, an accused may, in terms of provisions of Section 21(4) of the NIA Act, prefer an appeal to the High Court, against an order passed by the Special Court, or the Court of Session, as the case may be, refusing to enlarge him on bail. If a Special Court or Court of Session, as the case may be, grants bail under the NIA Act, the State cannot invoke High Court's powers, under Section 439(2) for cancellation of such bail. The remedy of the State lies, in such a case, in preferring an appeal, in terms of Section 21(4) of the NIA Act, to the High Court for cancellation of bail and if such an appeal is preferred, it would remain open to the High Court to examine the order, granting bail, on merit and determine if bail could at all have been granted to the accused by the Special Court or the Court of Session, as the case may be. At the same time, it would also remain open to the High Court to determine if the accused, having received bail, has misused his liberty and, whether his bail should, therefore, be cancelled or not. 102. I have already pointed out above that while conducting investigation, holding enquiry or trial or, otherwise, dealing with a case, even under a special law, the provisions of the Code would apply so far as the provisions of the Code may remain applicable in the face of the scheme of the special enactment. 103. The provisions for appeal, against acquittal, have been made in Section 378 of the Code. An appeal against acquittal is not admissible without leave having been granted by the High Court in terms of Sub-section (3) of Section 378. 104. When an order, granting or refusing bail, has been made appealable by Sub-section (4) of Section 21 of the NIA Act, a question could have arisen as to whether a State's appeal, against granting of bail, would require leave of the High Court. It is to override any such objections, which might have been raised, or the impediments, which the State might have suffered from, it appears that the Parliament, as a measure of abundant caution, deemed it appropriate to introduce, into Sub-section (4) of Section 21 of the NIA Act, non-obstante clause by using the expression, "notwithstanding anything contained in Sub-section (3) of Section 378 of the Code" so that the State's appeal against an order granting bail does not require leave of the High Court. Thus, Sub-section (4) of Section 21 of the NIA Act has overriding effect on the limitations placed by Sub-section (3) of Section 378 of the Code. In view, therefore, of the fact that a reference to Sub-section (3) of Section 378 has been made in Sub-section (4) of the Section 21 of the NIA Act, it does not mean that an order of the Special Court, granting or refusing bail, in a pending proceeding, is not an appealable order. 105. In view, therefore, of the fact that a reference to Sub-section (3) of Section 378 has been made in Sub-section (4) of the Section 21 of the NIA Act, it does not mean that an order of the Special Court, granting or refusing bail, in a pending proceeding, is not an appealable order. 105. In the light of the discussions, held above, there is no escape from the conclusion that even if an appeal, against an order granting bail, may require leave of the High Court, Sub-section (4) of Section 21 of the NIA Act removes such a constraint and makes it clear that though an order, granting or refusing bail, passed by a Special Court or a Court of Session, as the case may be, is an interlocutory order, an appeal would, nevertheless, lie to the High Court and such an appeal, being an exception to an appeal, under Sub-section (1) of Section 21 of the NIA Act, which bars an appeal against an interlocutory order, has to be heard, in the light of the provisions of Sub-section (2) of Section 21, by a Division Bench. 106. What surfaces from the above discussion, held, as a whole, is that except as provided in Section 167(2-A) of the Code, a person, arrested in connection with an offence, under the NIA Act, can be remanded to custody, police or judicial, by the Special Court, where the Special Court has been constituted, or by the Court of Session, where the Special Court has not been constituted. In view of the fact that the NIA Act envisages a situation, wherein an investigation, as in the present case, may be entrusted to the National Investigation Agency after the State police had made some investigation, it further follows that once the investigation, under the scheme of the NIA Act, is taken over by the Agency, it is the Special Court or the Court of Session, as the case may be, which can authorize further detention of an arrested accused. When such an arrested accused applies for bail to the Special Court or the Court of Session, as the case may be, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code. When such an arrested accused applies for bail to the Special Court or the Court of Session, as the case may be, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code. Even a High Court cannot invoke its powers under Section 439, to grant bail if it has been refused by the Special Court or the Court of Session, as the case may be, nor can the High Court, in exercise of its power, under Section 439, cancel bail if bail has been granted to such an accused by the Special Court or the Court of Session, as the case may be. If the bail has been refused or granted by the Special Court or the Court of Session, as the case may be, the aggrieved party may, however, prefer an appeal, in terms of Section 21, to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned. 107. In the backdrop of the position of law, as indicated above, it becomes clear that the present three applications for bail, which have been made under Section 439 of the Code, are not entertainable in law and must, therefore, fail. 108. In the result and for the reasons discussed above, all these three bail applications are hereby dismissed as not maintainable. Application dismissed