I A. Ansari, J.— Introduction 1. When pitted against each other, which one is more important - liberty of a person, or the security of the State? Society has struggled to find a uniform answer to this question in all its stages of civilization. There was a time, when the concern of the security of the State made rulers ignore the question of personal liberty of his subjects. As the civilizational standards started rising, participation of the people in the governance of the State started increasing. The experience taught the people that ignoring personal liberty, in all cases and in all circumstances, may prove counter-productive inasmuch as it may turn the ruler - whether an individual or a group of persons - into a despot and dictator. Ignoring personal liberty may even slide the State to the brink of tyranny and, eventually, plunge the State into such a catastrophe as could destroy the State itself. 2. The human civilization, therefore, realized that a balance has to be struck between the two. While the concern of the security of the State, ill all conditions and always, may not be allowed to override the concerns of civil liberty, the civil liberty must also be subjected to certain restrictions so that the liberty does not become a licence to do anything, which anyone pleases to do, for, civil liberty, beyond a point, may also prove disastrous for the State inasmuch such licencees would tempt to ignore the law and defeat thereby the very rule of law, which is the cherished goal of civil liberty. 3. Fortunately, in India, her Constitution creates a balance between the two conflicting interests - civil liberty and security of the State. All laws, in India, have to, therefore, withstand the test of this constitutional balance. With the spread of terrorism, human civilization has been put under severe strain inasmuch as terrorism is, now, testing our value system. Do we allow the concerns of civil liberty to be ignored in order to escape the horrors of terrorism? should we learn to forget the values, which we have attached so far to an individual's human rights, even if is an offender? No wonder that 'terrorism' has become, in the present day world, the greatest threat to human civilization. 4. The concern for security of the State has, therefore, forced the State to make more and more stringent laws. should we learn to forget the values, which we have attached so far to an individual's human rights, even if is an offender? No wonder that 'terrorism' has become, in the present day world, the greatest threat to human civilization. 4. The concern for security of the State has, therefore, forced the State to make more and more stringent laws. Lest the State also does not become as insensitive as a terrorist, all the acts of the State and the laws, made by the State, must be tested and interpreted on the touchstone of human rights. A successful State administers its laws with meaning and effect - See National Investigation Agency v. Redaul Hussain Khan, 2010 (3) GLT 302. 4a. In the light of the above observations made on the constitutional guarantee of civil liberty vis-a-vis horrors of terrorism, we, now, come to the present appeal. Background facts 5. The material facts, giving rise to the present appeal, may, in brief, be set out as under : (i) Some significant amendments have been made in the Unlawful Activities (Prevention) Act, 1967, ['the UA(P) Act'] by the Unlawful Activities (Prevention) Amendment Act, 2008, the amendments having come into force on 31.12.2008, which introduced and defined certain terms, such as, terrorist Act, terrorist gang, terrorist organization, unlawful association and unlawful activity and made, inter alia, punishable a terrorist act' under section 16 and, by section 17, while the UA(P) Act, as amended by the Unlawful Activities (Prevention) Amendment Act, 2008, made raising of fund terrorist Act punishable, the UA(P)Act also provided punishment a conspiracy, Act of abetment, etc.,- for commission of terrorist Act or any Act preparatory to the commission, of terrorist act. This apart, the UA(P) Act made 'membership' of a terrorist gang or terrorist organization punishable offences and also provided punishment for those, who hold or held proceeds of terrorism. The UA(P) Act made, under section 38, even 'association' by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activities or if he professes to be associated with a terrorist organization with intention to further its activities. The UA(P) Act made, under section 38, even 'association' by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activities or if he professes to be associated with a terrorist organization with intention to further its activities. (ii) The UA(P) Amendment Act, 2008, has also introduced section 43D and put restrictions, by the proviso to sub-section (5) of section 43D, on the court's power to grant bail by imposing condition that an accused shall not be released on bail or on his own bond if the court, on perusal of the case diary, or on the report, made under section 173 of the Code of Criminal Procedure (in short, 'the Code'), is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, the UA(P) Act, 1967, as the same stands today, puts serious fetters on the court's discretion to allow an accused to go on bail. (iii) Yet another development from the enactment of NIA Act, 2008, which came into force on 31.12.2008, is that the Central Government stands empowered to constitute a special agency to be called National Investigation Agency ('NIA') for investigation and prosecution of offences under the acts specified in the Schedule of the NIA Act. Section 11 also empowers the Central Government to constitute Special Courts and, it is out of the order, passed by such a Special Court rejecting bail of the present appellant, that this appeal has been preferred as provided by section 21(1) of the NIA Act read with section 21(4) thereof. (iv) Basistha P.S, Case No. 170/2009, under section 120B/121/12KA), IPC read with section 25(1B)(A) Arms Act, was, initially, registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 1.4.2009, at about 4.00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 were intercepted at 14th Mile G.S. Road, Guwahati, and searched, both the said 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. 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. (v) While investigation of Basistha Police Station Case No. 170/2009 aforementioned was pending with the State police, the Central Government, in exercise of its power under section 6(5), read with section 8 of the National Investigation NIA Act, 2008 ('the NIA Act'), directed, on 1.6.2009, investigation of the said case by the National Investigation NIA (in short, 'the NIA'). In terms of the directions, so issued by the Central Government, the NIA registered a case under the NIA Act, the Case being NIA Case No. 1/2009. (vi) Before, however, registration of the case aforementioned by the NIA, 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. The NIA moved, on 5.6.2009, the Chief Judicial Magistrate, Kamrup, and filed FIR in the NIA Case No. 1/2009 aforementioned. On 6.6.2009, the accused 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 6.6.2009, 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 NIA, the court allowed accused Mohit Hojai and R. H. Khan to be taken into custody by the NIA for a period of 10 days and the three accused, namely, 1. Mihir Barman @ Jewel Garlossa @ Dcbojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were remanded, for a period of 14 days, to the custody of the NIA. (vii) On 11.6.2009, on the prayer of the NIA, the court of the Chief Judicial Magistrate, Kamrup, added sections 17/18/19 of the UA(P) Act, 1967, to the NIA Case No. 1/2009 aforementioned and, on the prayer of the NIA, the court of the Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in purported exercise of its power under section 167 of the Cr.PC, on the ground that no court has so far been constituted under the NIA Act. (viii) By a Gazette Notification, dated 9.7.2009, issued by the Government of India, Ministry of Home Affairs, in exercise of its powers under section 3 of the UA(P) Act, 1967, DHD(J) along with its factions, wings and front organizations came to be declared as 'unlawful organization'. (ix) Three of the accused persons, namely, R.H. Khan, Ahsringdaw Warisa @ Partha Warisha and Sameer Ahmed, then, approached this court seeking to invoke its jurisdiction under section 439 of the Code. None of the accused aforementioned applied for bail to the Chief Judicial Magistrate, Kamrup, or to the Sessions Judge, Kamrup; rather, they applied for bail, directly, to this court under section 439 of the Code. (x) One of the important questions, which arose before the High Court, in the matter of application for bail, which the three accused aforementioned had so made under section 439, Cr.PC to this court, was: whether the bail applications were maintainable in law. 6. Upon a threadbare discussion, the said three bail applications, made under section 439 of the Code, seeking to invoke High Court's jurisdiction to grant bail in favour of the accused aforementioned, were rejected, on 29.7.2009, by one of us (Ansari, J) on the ground of lack of jurisdiction, laying down, inter alia, that under the scheme of the provisions contained in the NIAAct read with the provisions of remand and bail as stand incorporated in the Code of Criminal Procedure, a person, arrested in connection with an offence, under the NIAAct, 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. 7. 7. This court, in the said three bail applications, also held that the source of power of the Special Court or the Court of Sessions, as the case may be, to consider an application for bail is traceable to, and governed by, the provisions of section 437, Cr.PC and while considering such an application for bail, the Special Court or the Court of Sessions, 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 Sessions, as the case may be, would have all the limitations, which a Magistrate has, while deciding an application for bail, under section 437, Cr.PC and the provisions, contained in section 439, Cr.PC, cannot be resorted to for the purpose of granting bail and it was also held by the High Court, in its order, dated 29.7.2009, aforementioned, that against an order, passed by a competent court, rejecting bail, or granting bail, the remedy of an aggrieved party lies in preferring an appeal to the High Court, in terms of section 21(4) of the NIAAct, and in not making any application under section 439 of the Code. This court, therefore, held in its order, dated 29.7.2009, that such an appeal would require hearing by a Division Bench of the High Court and that in such an appeal, even the merit of the order, granting or refusing bail, can be questioned. The decision came to be reported, in Redaul Hussain Khan v. State of Assam and Ors., (2009) 3 GLT 855. While laying down the law, as indicated hereinbefore, the court observed and held as under : "77. What emerges from the above discussion is that it is the Special Court under the NIAAct, or the Court of Sessions, 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 section 437 of the Code. *** *** *** *** *** *** *** *** *** 106. What surfaces from the above discussion, held, as a whole, is that except as provided in section 167(2A) 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 NIA 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, Cr.PC. 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, Cr.PC, 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." (emphasis added) 8. Complying with the position of law, as had been laid down by this court, in Redaul Hussain Khan and Others (supra), one of the accused, namely, Redaul Hussain Khan, filed an application before the Sessions Judge (Special Court), Kamrup, Guwahati, seeking bail, but his bail application came to be rejected on 14.8.2009. Thereafter, on an application, made by the NIA, on 27.8.2009, the learned Sessions Judge (Special Court), Kamrup, Guwahati, by its order, dated 28.8.2009, extended the period for completion of investigation into the case by a further period of 60 days in terms of section 43-D(5)(b) of the UA(P) Act read with section 167, Cr.PC. 9. The order, dated 14.8.20t)9, aforementioned passed by the learned Sessions Judge (Special Court), Kamrup, Guwahati, rejecting the bail applications came to be challenged by Redaul Hussain Khan, before a Division Bench of this court, by way of appeal under section 21(4) of the NIAAct. The said appeal was dismissed by a. Division Bench of this court on 19.9.2009. 10. In the meanwhile, however, the Special Court, Central Bureau of Investigation, Assam, Guwahati, was notified by the Central Government, in exercise of its power under section 11(1) of the NIA Act, vide Gazette Notification, dated 1.9.2009, issued by the Government of India, Ministry of Home Affairs, as the 'Special Court' for the purpose of the NIAAct. 11. 10. In the meanwhile, however, the Special Court, Central Bureau of Investigation, Assam, Guwahati, was notified by the Central Government, in exercise of its power under section 11(1) of the NIA Act, vide Gazette Notification, dated 1.9.2009, issued by the Government of India, Ministry of Home Affairs, as the 'Special Court' for the purpose of the NIAAct. 11. As against the dismissal of his appeal and rejection of bail by the order, dated 19.9.2009, passed by a Division Bench as mentioned above, one of the accused, namely, Redaul Hussain Khan, carried the matter, by way of a Special Leave Petition, to the Supreme Court. By its decision, pronounced on 9.11.2009, Redaul Hussian Khan v. State of Assam and Ors., (2010) 1 SCC 521 , the Supreme Court observed, inter alia, that it had been pointed out, on behalf of the Union of India, that there was little doubt that even on the date, when accused Redaul Hussain Khan was apprehended, DHD(T) had been indulging in terrorist Act, although it came to be declared as an 'unlawful association' some time later, i.e., on 9.7.2009. The Supreme Court made it clear, in its order, dated 9.11.2009, that having considered the submissions, made before it, it was unable to agree with the submissions, made on behalf of the accused-petitioner, Redaul Hussain Khan, that to the facts of the case, the provisions of the UA(P) Act, 1967, were not attracted. The Supreme Court further held that it was unable to accept the submissions, made on behalf of the petitioner, Redaul Hussain Khan, that merely because of the fact that DHD(J) had not been declared as an 'unlawful organization', when Redaul Hussain Khan-was arrested, the said organization could not have been taken to have been indulging in terrorist act, or that the petitioner could not have been alleged to have the knowledge of such activities of the DHD(J). 12. With the conclusions, so reached, as indicated above, me Supreme Court rejected Redaul Hussain Khan's application for bail by laying down that the learned Sessions Judge (Special Court), Kamrup, Guwahati, had the jurisdiction to extend the time for completion of investigation in terms of the amended provisions, introduced by way of section 43D(5)(b) of the UA(P) Act, read with section 167, Cr.PC. The relevant observations, made by the Supreme Court, in Redaul Hussain Khan (supra), read as under : "15. Mr. Rawal submitted that although Mr. The relevant observations, made by the Supreme Court, in Redaul Hussain Khan (supra), read as under : "15. Mr. Rawal submitted that although Mr. Ghosh had referred to some newspaper reports indicating that there was a possibility of amnesty being granted to the members of DHD(J), the same was yet to materialize, and, on the other hand, it also indicated that the said organization was indulging in terrorist activities. Accordingly, in view of the definition of "terrorist Act" in section 15 of the 1967 Act and the provisions of sections 13 to 17 thereof, there was little doubt that even on the date when the petitioner was apprehended, DHD(J) was indulging in terrorist Acts, although, it came to be declared as an "unlawful association" sometime later. Mr. Rawal urged that having regard to the above, the Special Leave Petitions filed against the order of the High Court refusing to grant bail were liable to be dismissed. 16. We have carefully considered the submissions made on behalf of the respective parties and we are unable to agree with Mr. Ghosh that the provisions of the UA(P) Act, 1967, would not be attracted to the facts of the case. We are also unable to accept Mr. Ghosh's submissions that merely because DHD(J) had not been declared as an "unlawful association" when the petitioner was arrested, the said organization could not have indulged in terrorist Acts or that the petitioner could not have hail knowledge of such activities. 17. Accordingly, Mr. Ghosh's submissions regarding the grant of statutory bail have to be rejected since, in our view, the learned Sessions Judge (Special Court) had the jurisdiction to extend the time for completion of the investigation." (emphasis added) 13. Thereafter, three more persons, namely, Jayanta Kumar Ghosh, Debasish Bhattacharjee @ Bappi and Sandeep Kumar Ghosh @ Sambhu, came to be arrested on 30.10.2009. On their production before the Special Court, they were remanded to custody. 14. A charge sheet came to be laid, on 17.11.2009, before the learned Special Court, by the NLA, against as many as 14 accused persons including those persons, whose names have been mentioned above. Three of the accused persons, namely, Jayanta Kumar Ghosh, (i.e., the appellant herein), Debasish Bhattacharjee @ Bappi, and Sandeep Kumar Ghosh @ Sambhu, had jointly applied for bail, but their applications for bail were rejected by the learned Special Court on 31.12.2009. Three of the accused persons, namely, Jayanta Kumar Ghosh, (i.e., the appellant herein), Debasish Bhattacharjee @ Bappi, and Sandeep Kumar Ghosh @ Sambhu, had jointly applied for bail, but their applications for bail were rejected by the learned Special Court on 31.12.2009. As against the order, rejecting their prayer for bail, as indicated above, they had preferred appeals, under section 21 of the NIAAct, to this court. Similarly, accused Ashringdaw Waris and accused Samir Ahmed, too, on failing to obtain bail from the learned Special Court, had, upon filing of the charge sheet against them, preferred appeals. 15. As far as accused Redaul Hussain Khan is concerned, he filed, after the charge sheet already stood laid by the NIA, an application for bail, in the Special Court, at Guwahati, itself, on the ground of his sickness. By order, dated 25.1.2010, the learned Special Judge granted interim bail to accused Redaul Hussain Khan and this direction for interim bail was, eventually, made absolute on 29.1.2010. Aggrieved by the order, dated 29.1.2010, whereby accused Redaul Hussain Khan was granted bail, the NIA preferred an appeal, which gave rise to Criminal Appeal No.25/2010. The appeal has been allowed and the order, granting bail in favour of accused Redaul Hussain Khan, has been set aside by a separate judgment and order delivered by us. 16. While resisting the application for bail, made by accused Redaul Hussain Khan, on the ground of his sickness, what the NIA had submitted is relevant in order to help this court take a holistic view of the case of the NIA and to correctly appreciate die case as against the present appellant, Jayanta Kumar Ghosh, in the present two appeals. The case of the NIA, which NIA had submitted in Redaul Hussain Khan, as indicated hereinbefore, was, and has remained, in substance, thus : (a) During the course of investigation, accused Redaul Hussain Khan and Mohit Hojai were arrested on 31.5.2009. During a search conducted at the house of Redaul Hussain Khan, an amount of Rs.4,00,000 was recovered in cash. The seizure of huge cash, which had been made, on 1.4.2009, from Phojendra Hojai and Babul Kemprai and also recovery of money, in cash, from Redaul Hussain Khan was part of a large criminal conspiracy to wage war against the State by the accused involved in the case aforementioned including Redaul Hussain Khan. The seizure of huge cash, which had been made, on 1.4.2009, from Phojendra Hojai and Babul Kemprai and also recovery of money, in cash, from Redaul Hussain Khan was part of a large criminal conspiracy to wage war against the State by the accused involved in the case aforementioned including Redaul Hussain Khan. (b) In furtherance of the said criminal conspiracy, which was held in November, 2008, in Guwahati, North Cachar Hills and other places and under the directions of Niranjan Hojai, Commander-in-Chief of DHD(J), Depolal Hojai, the then elected Chief Executive Member (GEM) of North Cachar Hills Autonomous Council CNCHAC'), resigned from the office to make way for Mohit Hojai to assume charge as the new CEM, because, Depolal Hojai had been threatened by Niranjan Hojai that unless he (Depolal Hojai) resigned, as had been directed, he would face the same fate as his predecessor in office, who had been killed. It is, thus, under threat and intimidation, exerted on Depolal Hojai, by Niranjan Hojai, that Depolal Hojai had resigned and Mohit Hojai became the CEM. The removal of Depolal Hojai, by Mohit Hojai, created the desired impact, it installed a sense of panic and terror and thereby spread, in the employees and people of NCHAC, deep sense of terror disabling them from questioning any illegality, which they were directed by Mohit Hojai and his group of people to carry out. (c) Consequently, Mohit Hojai and other public servants including Redaul Hussain Khan, contractors, such as, the present appellant, Jayanta Kumar Ghosh, and some others siphoned huge sums of money by threat and extortion from NCHAC and the money, so collected from various illegal means including extortion, misappropriation, etc., used to be carried to Guwahati, Kolkata and Bangalore and, then, through channelized hawala operators, sent out of the country and utilized in purchasing and importing arms and ammunitions for carrying on the subversive activities of DHD(J), which had come to be notified as an 'unlawful association', within the meaning of section 2(m) of UA(P) Act, as mentioned above. (d) The investigation, conducted at Halflong, revealed defalcation of Government funds for the purpose of helping terrorist activities of DHD (J) and the said Redaul Hussain Khan, while working as Deputy Director, Social Welfare Department, had allegedly the sole control of the finances of the Social Welfare Department inasmuch as he used to keep all cheque books, pass-books and other related papers with him only and used to make payments to the suppliers personally without receiving the materials for which orders were placed and, after obtaining receipts from the suppliers, he gave the receipts, bills, challans and vouchers to the office staff with instructions to process the same for payment and make relevant entries of the office records. The office staff processed the bills for payment and made relevant entries in the office records without actually receiving the articles or stock. The interrogation of the office staff revealed that they were threatened by Redual Hussain Khan to do so and that the staff of the said office had been carrying out illegal directions of Redaul Hussain Khan, because of fear and threat to their lives. (e) Accused Redaul Hussain Khan applied for bail at different stages of investigation, but the same came to be rejected by the Special Court, the High Court and also the Supreme Court. In the past, accused Redaul Hussain Khan had cited different reasons for obtaining bail including a plea that he was to appear in MBA examination and the illness of his mother. During pendency of Criminal Appeal No.148/ 2009, arising out of an appeal preferred under section 21(4) by the respondent, Redaul Hussain Khan, challenging therein the order of the learned Special Court refusing to grant him bail. Redaul Hussain Khan had been allowed by the High Court to meet his mother in the hospital, while being escorted by police; but the accused never met his mother in the hospital, because his mother was not seriously ill as had been misrepresented before the High Court and that she already stood discharged by the hospital. (f) A charge sheet, as already mentioned above, was laid, in the Special Court, against as many as 14 accused including Redaul Hussain Khan, who figures as A4, in the charge sheet; and the present appellant, Jayanta Kumar Ghosh, who figures as accused in the said charge sheet. 17. (f) A charge sheet, as already mentioned above, was laid, in the Special Court, against as many as 14 accused including Redaul Hussain Khan, who figures as A4, in the charge sheet; and the present appellant, Jayanta Kumar Ghosh, who figures as accused in the said charge sheet. 17. What may, now, be noticed is that, while the NIA's appeal, which had been preferred, under section 21 of the NIAAct, against the learned Special Court's order (as mentioned above), granting bail to accused Redaul Hussain Khan on the ground of his sickness, was allowed and thereby accused Redaul Hussain Khan's bail was cancelled, all other appeals, including the appeal, preferred by the present appellant, Jayanta Kumar Ghosh, to this court, against rejection of his prayer for bail by the learned Special Court, came to be rejected by a Division Bench of this court, by judgment and order, dated 28.5.2010. 18. In short, thus, the order of the learned Special Court, rejecting the prayer for bail, which the present appellant, Jayanta Kumar Ghosh, had applied for, was upheld by this court in the appeal aforementioned. While the decision, in Redaul Hussain Khan's case stands National Investigation Agency v. Redaul Hussain Khan, 2010 (3) GLT 302, the decision, in the appeals of the present appellant and others, stands reported in Jayanta Kumar Ghosh and Others v. State of Assam and Others, 2010 (4) GLT 1 (2010) 6 GLR 727. 19. Aggrieved by the dismissal of his appeal by this court, the appellant, Jayanta Kumar Ghosh, carried the matter, by way of Special Leave, to the Supreme Court, the Special Leave Petition being SLP (Crl.) 5416 of 2010, wherein the Supreme Court, while declining to interfere with the dismissal of the appeal, gave liberty to the petitioner, (i.e., the present appellant) to apply afresh for bail, if so advised. The relevant observations, made by the Supreme Court, in its order, dated 29.9.2011, passed in the said Special Leave Petition, read as under : ".....considering the nature of the charges, which have been brought against the Petitioner and the other accused persons, we are not inclined to interfere with the order of the High Court refusing to grant bail to the petitioner, but, at the same time, we are of the view that the trial should not be delayed any further. .............this order will not prevent the petitioner from making any fresh application for bail, if so advised." (emphasis added) 20. Thus, the Supreme Court, while declining to interfere with the High Court's order refusing to grant bail to the appellant, Jayanta Kumar Ghosh, did not stop him from making application for bail 'if so advised'. This shows that the rejection of bail of the appellant, Jayanta Kumar Ghosh, by the High Court, was correct, though the appellant was given the option to apply afresh for bail 'if so advised'. The question, therefore, is: whether the Supreme Court permitted the appellant to make repeated applications for bail even if there were no change in the circumstances of the case? 21. Before answering the question, posed above, what may be noted is that the present appellant, Jayanta Kumar Ghosh, made applications seeking bail, in the Special Court, in both the cases, namely, NIACase No. 1/2009 and NIA Case No. 2/2009. However, as the applications for bail, filed by the appellant, Jayanta Kumar Ghosh, were rejected by the learned Special Court, Assam, by order, dated 23.12.2011, these two appeals, namely, Cri. Appeal No. 12 of 2012, and Cri. Appeal No. 15 of 2012, have been preferred by the appellant. Jayanta Kumar Ghosh, under section 21(4) of the NIA Act. 22. What may also be noted is that in the learned Special Court, hearing, with regard to the framing of charge, in NIA Case No. 1/2009, has been concluded. Considering, however, the fact that there are as many as 14(fourteen) accused and each accused has his own counsel and every counsel has made his submissions in the matter of framing of charges, the learned Special Court, due to intricate nature of the questions, which have been raised, has, according to what the NIA has submitted before this court, kept the order, on the framing of charges, reserved in NIA Case No. 1/2009. 23. We have heard Mr. P.K. Goswami, learned Senior counsel, appearing on behalf of the appellant in both the appeals, and Mr. D. K. Das, learned senior counsel, appearing for the NIA. We have also heard Mr. H.P. Rawal, learned Additional Solicitor General, who has appeared on behalf of the Union of India, and Mr. K.N. Choudhury, learned Senior Additional Advocate General, Assam. Preliminary objection to Criminal Appeal No.12/2012 by the NIA 24. D. K. Das, learned senior counsel, appearing for the NIA. We have also heard Mr. H.P. Rawal, learned Additional Solicitor General, who has appeared on behalf of the Union of India, and Mr. K.N. Choudhury, learned Senior Additional Advocate General, Assam. Preliminary objection to Criminal Appeal No.12/2012 by the NIA 24. What may, now, be noted is that the appeal, which has arisen out of NIA Case No. 1/2009, has been resisted, at its threshold, by the NIA, by contending, inter alia, that the appellant, Jayanta Kumar Ghosh, had earlier filed his application for bail, in NIA Case No. 1/2009, and the prayer for bail having been rejected by the learned Special Court, the appellant preferred, under section 21(4) of the NIA Act an appeal to this court and, as this court, too, upheld the order of the learned Special Court rejecting the appellant's prayer for bail and thereby dismissed the appellant's appeal, the appellant carried his grievances to the Supreme Court, but the Supreme Court, too, did not interfere with the order of rejection of bail, though it granted the appellant the liberty to apply for bail afresh, if so advised. 25. Repeated applications for bail, submits Mr. Das, have been discouraged by the Supreme Court and, though the doctrine of res judicata does not apply to bail applications, the person, moving the bail application, if his applications for bail were already rejected, must show new grounds, or change in the circumstances or some new facts having emerged or come on record, which, according to him, entitles him, (i.e., the applicant) to apply afresh for bail. Reliance, in support of his submissions, is placed by Mr. Das on the decision, in State of T.N. v. S.A. Raja, (2005) 8 SCC 380 , wherein the Supreme Court observed as under : "Where a learned Single Judge of the same court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents." (emphasis is added) 26. In the case at hand, submits Mr. Das, there is no change in the circumstances and since not only learned Special Court, but this court, too, and, thereafter, the hon'ble Supreme Court have not found it fit to allow the appellant, Jayanta Kumar Ghosh, to go on bail in the face of the facts of the case at hand and the law relevant thereto, the appellant, logically speaking, cannot seek bail, once again, without any change in the circumstances and without any new material having come on record in his favour. 27. To put it a little differently, when the learned Special Court's earlier order, rejecting bail, in NIA Case No. 1/2009, has been upheld by this court in appeal and thereby the order of the learned Special Court stands, by operation of law, subsumed into the appellate order, passed by this court, in the appellant's earlier appeal, and, hence, unless there is any change in the circumstances, or some new grounds are shown, the bail application, in NIA Case No. 1/2009, wherein charge sheet was submitted, on 17.11.2009, is not sustainable; but, so far as the appeal, arising out of the rejection of the present appellant's prayer for bail by the learned Special Court, in NIA Case No. 2/2009, wherein charge sheet was submitted on 17.11.2009, is concerned, the same can be heard and decided on merit. 28. In the case at hand, particularly, NIA Case No. 1/2009, contends Mr. Das, the appellant, Jayanta Kumar Ghosh, has not been able to show, reiterates Mr. Das, any new ground warranting change in the conclusions of this court, which it had arrived at, while considering the appellant's earlier appeal against the learned Special Court's order rejecting his application for bail. Appellant's reply to the preliminary objection of the NIA 29. Das, the appellant, Jayanta Kumar Ghosh, has not been able to show, reiterates Mr. Das, any new ground warranting change in the conclusions of this court, which it had arrived at, while considering the appellant's earlier appeal against the learned Special Court's order rejecting his application for bail. Appellant's reply to the preliminary objection of the NIA 29. Attempting to repel the above submissions, made on behalf of the NIA, resisting the maintainability of Criminal Appeal No. 14/2012, which has arisen out of NIA Case No. 1/2009 (wherein charge sheet was submitted on 17.11.2009, and the learned Special Court has kept its order, on the framing of charges, reserved) and, apprehending, perhaps, that the failure of the appellant, Jayanta Kumar Ghosh, to obtain bail, in NIA Case No. 1/2009, would frustrate the appellant's attempt to obtain his liberty on bail even if he happens to be granted bail in NIA case No. 2/2009, Mr. P. K. Goswami, learned senior counsel, has submitted that there has been change in circumstances of the present case inasmuch as a 'truce' has been entered into between the Government of India and the State Government, on the one hand, and DHD(J), which had been, at one point of time, declared as an unlawful association, on the other, and, pursuant to this 'truce', Niranjan Hojai, who was alleged to be the Commander-in-Chief of the DHD( J), and its Chairman, Jewel Garlossa @ Mihir Barman @ Dobijit Sinha, had applied for bail in the Special Court, but the learned Special Court declined, on 21.7.2010, to grant them bail, whereupon the said two accused preferred an appeal, which gave rise to Cri. Appeal No. 126/2011. 30. It needs to be pointed out, submits Mr. Appeal No. 126/2011. 30. It needs to be pointed out, submits Mr. Goswami, learned senior counsel, that it was contended by the NIA and also the State of Assam, in learned Special Court, that on the demand of the civil society, a peace process stood initiated with the said outfit and in consonance with the said peace process, the Governments, both, the Central as well as State, had initiated dialogue with the said outfit and, in the such circumstances, the release of the said two appellants, namely, Niranjan Hojai and Jewel Garlossa, would be necessary to sign a peace accord between the said outfit and the State of Assam so that there could be a permanent solution to the insurgency problem in the North Cachar Hills area. 31. It has been pointed out by Mr. P. K. Goswami, learned senior counsel, that a Division Bench of this court, in its order, dated 12.8.2011, passed in Criminal Appeal No. 126/2011, did make an observation that the learned Special Court's rejection of bail, in the light of the interpretation given by it to the provisions of section 43D(5) of the UA(P) Act, is correct, but as the submission, made before the High Court, was that the appellants were not asking for bail, but only interim bail to participate in the peace process and, as the NIA and the Government of Assam had no objection to the interim bail, the High Court granted interim bail to Niranjan Hojai, the self-styled Commander-in-Chief, and Jewel Garlossa, the self-styled Chairman of the said unlawful outfit. 32. Thus, according to Mr. P. K. Goswami, learned senior counsel, while the persons, who had allegedly led DHD( J) and had allegedly wielded and used arms illegally and indulged in terrorist and disruptive activities, have been allowed the liberty of bail, because the interim order for bail, which was initially for a period of four months, has been subsequently extended, in the name of 'truce', the present appellant, Jayanta Kumar ghosh, who was allegedly a mere provider of fund to DHD( J), has been denied bail, interim or otherwise, and has been kept incarcerated for almost three years. 33. In effect, thus, the alleged chief architects of the DHD( J) are, points out Mr. 33. In effect, thus, the alleged chief architects of the DHD( J) are, points out Mr. Goswami, on interim bail, though they were the ones, who had, according to the NIA, taken to arms illegally and controlled and used their cadres for various disruptive activities; whereas the present appellant, Jayanta Kumar Ghosh, is accused of having provided fund to the said outfit by means of misappropriation of Government funds and by carrying the money, so misappropriated, to Mohit Hojai, who was the Chief Executive Member, N.C. Hills Autonomous Council, and who, according to the NIA, was chosen and made the Chief Executive Member of the N.C. Hills Autonomous Council, by removing his predecessor-in-office with the help of threatening call made by Niranjan Hojai, so that the activities of the DHD( J) could be effectively carried out with the help of Mohit Hojai, but the said Niranjan Hojai, now, is enjoying, at the behest of the Government, the benefit of interim bail. This apart, points out Mr. Goswami, a large number of the cadres of the said one-time banned unlawful association, DHD(J), have been recruited into the regular police force of the State. 34. When persons, who allegedly took to arms, according to the NIA, are enjoying the freedom and liberty of bail, though in the form of interim bail, there is no rational cause, grieves Mr. Goswami, for resisting the bail of the present appellant and this, according to Mr. Goswami, is the change in the circumstances since the time the last appeal, seeking bail by the present appellant, was dismissed by this court. 35. Yet another ground for seeking present appellant's bail, points out Mr. Goswami, is that the CBI had registered a case with regard the misappropriation of funds by the public servants in N.C, Hills Autonomous Council, because the NIA had declined to investigate into the case, though the NIA did have the power, under the NIA Act, to investigate such cases, too; and, in the charge sheet, which the CBI has submitted, in this regard, the present appellant's name does not figure as an accused. 36. Coupled with the above, it is further submitted by Mr. 36. Coupled with the above, it is further submitted by Mr. Goswami, learned senior counsel, that the most important ground, which the appellant, Jayanta Kumar Ghosh, seeks to press for consideration is that this court had observed, in the earlier round of litigation, that, while considering an appeal, under section 21 of the NIAAct, arising out of an order either granting bail or rejecting bail by the Special Court, constituted under the NIAAct, this court does not, while sitting as an appellate court, enjoy the special power, which the High Court, otherwise, enjoys under section 439 of the Code. This proposition of law, according to Mr. Goswami, needs to be reviewed inasmuch as this court, contends Mr. Goswami, while sitting, in appeal, against an order rejecting bail or granting bail, passed by the learned Special Court, is not denuded of the special power, which it has and, otherwise, enjoys under section 439 of the Code. 37. In other words, what Mr. Goswami contends is that notwithstanding the restrictive provisions, contained in proviso to section 43D(5) of the UA(P) Act, disempowering the court from granting bail to an accused if the court, on perusal of the case diary or the report, made under section 173, Cr.PC, is of the opinion that there are reasonable grounds for believing that the accusations against the accused are prima facie true, this court, in an appeal under section 21 of the NIAAct, has, nevertheless, the special power, under section 439 of the Code, to grant bail to an accused, who may, otherwise, be covered by the proviso to section 43D(5). 38. Besides the merit of this appeal, which includes the duration of incarceration of the appellant (which we would deal with later), there are, thus, three specific grounds for -seeking an order of bail in the present appeal, namely, (i) 'truce', (ii) the charge sheet, filed by the CBI, does not implicate the appellant and (iii) restrictive provisions, embodied in section 43D(5) of the UA(P) Act, do not apply to the High Court, when the High Court exercises its appellate jurisdiction under section 21(4) of the NIAAct, because the High Court remains free to take recourse to its special power conferred by section 439, Cr.PC and grant, in exercise of its appellate jurisdiction, bail to a person, whose case may fall within the ambit of the proviso to section 43D(5) of the UA(P)Act. Concept of proviso to section 43D(5) 39. We pause, at this stage, for a moment to point out that while dealing with the concept of the proviso to section 43D(5), the Division Bench, in Jayanta Kumar Ghosh v. State of Assam, 2010 (4) GLT 1, observed and held as to what the expression prima facie and the expression time, which appear in the proviso to section 43D(5), convey. The relevant observations, made this regard, read as under: "63. Before proceeding further, it is also, to our mind, necessary to ascertain as to what the scope of the proviso to section 43D(5) is and when would this proviso be attracted. While dealing with this aspect of the appeal, it is necessary to bear in mind that the proviso to section 43D(5) states that such accused person shall not be released on bail or on his own bond if the court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there arc reasonable grounds for believing that the accusation against such person is 'prima facie true'. The expression, 'prima facie true' is an expression, which does not, ordinarily, appear in penal statutes. 64. Let us, therefore, ascertain as to what the word 'prima facie' means. The word, prima facie, has been described in the Black's Law Dictionary as : "sufficient to establish fact or raise a presumption unless disproved or rebutted." Rebuttable presumption means an inference drawn from certain facts that establish a prima facie case, which may be overcome -;' by the introduction of contrary evidence. Rebuttable resumption also means prima facie presumption or disputable presumption or conditional presumption. 65. The Concise Dictionary of Collins has defined, prima facie, as an adjective, thus : "At first sight; as it seems at first." "And prima facie evidence is an evidence that is sufficient to establish a fact or to raise a presumption of tire truth unless controverted." 66. Warton's Law Lexicon defines that a prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, are believed. 67. Warton's Law Lexicon defines that a prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, are believed. 67. The Supreme Court, in Marlin Burn Ltd. v. R.N. Banerjee, 1958 SCR 514 at p. 530 ( AIR 1958 SC 79 at p. 85), observed, thus : "..........A prima facie case does not mean a case proved to the hilt, but a case, which can lie said to be established if the evidence, which is led in support of the same, were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether, on the evidence led, it was possible to arrive at the conclusion, in question, and not whether that was the only conclusion, which could be arrived at on that evidence." 68. The meaning of the word, 'prima facie', given in Marlin Burn Ltd. (supra), has been followed by the Supreme Court, in its later decision, in The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SCC 1352. 69. From the meaning, attributed to the word, 'prima fade', by various dictionaries, as indicated above, and the observations, made by the Supreme Court, in its decisions, in The Management of the Bangalore Woollen Cotton and Silk Mills (supra), what clearly follows is that prima facie is a Latin word, which means, 'At first sight or glance or on its face' and, in common law, it is referred to as 'the first piece of evidence of fact', i.e., considered true unless revoked or contradicted. 70. In the face of the above observations made by the Supreme Court, it may be construed that prima facie case would mean whether the inference drawn is a possible inference or not. 71. The word, 'true', according to Collins Dictionary, means something, which is not false, fictional or illusory, but factual and confirming with reality or exactly in tune. Webster's Third New International Dictionary defines True as : "Something, which is in accordance with fact or reality". 72. The word, 'true' has been defined, in World Book Dictionary, as "Agreeing with fact, not false". 73. Webster's Third New International Dictionary defines True as : "Something, which is in accordance with fact or reality". 72. The word, 'true' has been defined, in World Book Dictionary, as "Agreeing with fact, not false". 73. This the expression, 'prima facie true' would mean that the court shall undertake an exercise to determine as to whether the accusations, made against the accused, are inherently improbable and/or wholly unbelievable. Ordinarily, while considering a complaint, made against an accused, the court assumes the contents of the complaint to be true and correct and, then, proceed to decide as to whether the allegations, made in the complaint, make out a case of commission of offence by the accused or not. No exercise is required to be undertaken by the court to determine the truthfulness or veracity of the accusations. However, when the word, 'prima facie', is coupled with the word, 'true', it implies that the court has to undertake an exercise of cross-checking the truthfulness of the allegations, made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations made are inherently improbable, or wholly unbelievable, it may be difficult to say that a case, which is prima facie true, has been made out. 74. The term 'true' would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are reasonable grounds for believing that the accusation against the accused is prima facie true or false, the court can only look into the materials collected during investigation; and, on its bare perusal, should come to a finding that size accusation is inherently improbable. However, while so arriving at a finding, the court does not have the liberty to come to a conclusion, which may virtually amount to an acquittal of the accused. 75. In the case of State of Gujarat v. Gadhvi Rambhai Nathabai, (1994)5 SCC 111 , the Supreme Court while dealing with the principles governing the granting of bail under the TADA, observed : "8. 75. In the case of State of Gujarat v. Gadhvi Rambhai Nathabai, (1994)5 SCC 111 , the Supreme Court while dealing with the principles governing the granting of bail under the TADA, observed : "8. It is true that for the purpose of grant of bail, the framers of the Act require the Designate Court to be satisfied that there were reasonable grounds for believing that the accused concerned was not guilty of such offence but this power cannot be exercised for grant of bail in a manner which amounts virtually to an order of acquittal, giving benefit of doubt to the accused person after weighing the evidence collected during the investigation or produced before the court. At that stage the Designated Court is expected to apply its mind as to whether accepting the allegations made on behalf of the prosecution on their face, there are reasonable grounds for believing that the accused concerned was not guilty of the offence. At that stage the Designated Court is not required to weigh the material collected, during the investigation." 76. In short, thus, on a bare reading of the materials, as may have been collected during investigation, if the Special Court finds that the materials, so collected, are sufficient to form, when assumed to be true, an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true, the Special Court will be dis-empowered from releasing the accused on bail. At the stage of hail, no minute scrutiny or microscopic dissection of the materials, collected during investigation, shall be undertaken by the Special Court. Credibility or otherwise of the materials collected would not be the subject-matter of scrutiny. What, at best, the Special Court can do, and shall do, is to examine if the accusations made, on the basis of the materials collected, are wholly improbable. When the materials are, on examination by the Special Court, are found to he not wholly improbable and the Special Court finds, on assuming such materials to be true, that the accusations, made against an accused, as regards commission of an offence under Chapter IV and/or Chapter VI of the UA(P) Act, are prima facie true, such materials would be enough to attract the bar imposed by the proviso to section 43D(5). 77. 77. To put it a little differently, the Special Court is required to examine the materials, collected during investigation, assuming the same to be true and if, such materials, on such examination and consideration, are found to make out a case against the accused, the Special Court has to determine if there is any such thing in the materials, so collected, which would make the case, which has been made out against the accused, as a wholly improbable case. If the Special Court, on undertaking such an exercise, finds reasonable grounds to infer that the case, which has been made out against the accused, is not wholly improbable, the case would be treated as a case, which is sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true. 78. The expression, 'reasonable ground', means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offence(s) alleged. Under section 437, Cr.PC, an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence, winch is punishable with death or imprisonment for life. Under section 437, Cr.PC, the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty — See Union of India v. Thamissharasi, (1995) 4 SCC 190 , and Union of India v. Shiv Shankar Kesari, (2007) 7 SCC 798 . 79. Coupled with the above, the proviso to section 43D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapter VI of the UA(P) Act, 1967, can be said to have been made out and when such a case is made out, it would be tantamount to saying that reasonable grounds exist for opining that the accusations are prima facie true. In such a case, the bar, imposed by the proviso to section 43-D(5) on the court's power to grant bail, gets attracted. 80. We may point out that section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('the TADAAct') (since repealed), laid down that no person, accused of an offence punishable under the said Act, or any rule made thereunder, shall, if in custody, be released on bail, or on his own bond, unless, amongst others, the court is satisfied, where the Public Prosecutor opposes that application, that there are reasonable grounds for believing that he is riot guilty of such offence and that he is not likely to commit any offence, while on bail. Section 20(9) of the Act made it clear that the limitation on granting of bail, specified in sub-section (8) of section 20, is in addition to the restrictions, which the Code of Criminal Procedure, or any other law, in force, imposes. 81. There are no corresponding provisions, in the NIAAct, as were present in section 20(8) and section 20(9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-section (8) and/or sub-section (9) of section 20 of the TADAAct) no longer find place in the NIAAct, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a 'Court' other than the High Court and Court of Sessions. In such circumstances, the limitations, imposed by clauses (i) and (ii) of sub-section (1) of section 437, Cr.PC, are applicable to the Special Court too. In such circumstances, the limitations, imposed by clauses (i) and (ii) of sub-section (1) of section 437, Cr.PC, are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to section 43-D(5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar being that the Special Court shall not release the accused on bail or on his own bond if the court, on perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are 'reasonable grounds'for believing that the accusation against such person is prima facie true." (emphasis added) 'Truce' - If can be a ground for bail 40. Before we enter into the question as to whether this court, while sitting in appeal, under section 21(4) of the NIAAct, would continue enjoying its power under section 439 of the Code, notwithstanding the restrictive provisions contained in section 43D(5), we must point out that, having heard the submissions made by Mr. Goswami with regard to the 'truce', which is said to have been entered into between the State, on the one hand, and the DHD(J) and its chief functionaries, on the other, this court wanted to determine if such a 'truce', as had been entered into, and the granting of bail; because of such 'truce', despite the restrictive provisions for bail contained in the proviso to section 43D(5) of the UA(P) Act, is sustainable in law, for, the 'truce', if not sustainable in law, or, if the 'truce', so entered into, runs contrary to the Constitutional scheme of governance and does not empower the court to grant bail in a case of present nature, then, the present appellant cannot complain of discrimination and cannot take advantage of such a 'truce', or the order of interim bail, which may have been passed as a sequel to the said 'truce'. If, on the other hand, the 'truce', which is claimed to have been entered into between the DHD(J) and the Government, is in accord with the constitutional scheme of governance and the relevant legislation in force, then, notwithstanding the resistance to this appeal offered by the NIA and the State, the appellant does have a case for consideration, because it would be highly unreasonable, unjust, unfair and irrational to refuse to grant bail to the appellant, when the appellant was, according to the NIA, merely a fund raiser; whereas the persons, who took to arms and were allegedly involved in various terrorist activities, have been enjoying the liberty of bail, though in the form of interim bail, for, no relief can be granted by a court, in the form of interim relief, if the court is not empowered to grant, ultimately, the relief, which it has granted in the form of interim relief: 41. We, therefore, directed issuance of notices to, amongst others, the Union of India and the State Government so that we could be apprised of the position of law in the matter and thereby decide effectively not only this appeal, but all other appeals, which are pending before us and are being heard by us. 42. In order to make it explicit as to why we directed notices to be issued, as mentioned hereinabove, we reproduce the order below, which was passed, on 26.4.2012, by this court. "We have heard Mr. D.K. Das, learned senior counsel, for the NIA, Mr. Chetry, learned senior Government advocate, Mr. Z. Kamar, learned Public Prosecutor, Assam, and Mr. R. Sharma, learned ASG. Certain facts, surfacing, during the course of hearing of these appeals, are, somewhat, not only astonishing, but even shocking. All these appeals are against the orders passed by the learned Special Judge rejecting the applications for hail of the appellants, who have allegedly committed offences under the UA(P) Act, 1967, by, primarily, funding the terrorist gangs or terrorist Acts. What transpires, broadly speaking, is that there are two categories of persons, involved in the terrorist Acts, one, who had allegedly wielded arms, and the other, who had allegedly arranged funds for such activities. What transpires, broadly speaking, is that there are two categories of persons, involved in the terrorist Acts, one, who had allegedly wielded arms, and the other, who had allegedly arranged funds for such activities. While, those, who had allegedly funded the terrorist gangs or terrorist Acts, are incarcerated, but those, who had allegedly wielded arms and acted as members of the terrorist gangs, are either in a camp, which the State Government has set up, or they have been recruited as members of the State police force, Those, who have been so recruited, were, according to the materials as available today, had been members of the terrorist gang. This apart, the terrorist gang also had leaders and the leaders are on interim bail, because National Investigating Agency ('the NIA) has not raised any objection to their being released on bail inasmuch as the State Government has entered into some kind of 'truce' with the leaders of the terrorist gang and wants to use them for resolving the dispute. No political dialogue can, however, override the Constitution and the scheme of Constitutional governance, or else, people's faith, in rule of law, would completely evaporate, particularly, when, those, who had been allegedly wielding arms, are found to be free, and those, who had allegedly funded the terrorist Acts, are behind the bar. One of the submissions, made on behalf of another set of appellants, in similar appeals, is that the 'truce', which has been entered into by the State Government and the Government of India with DHD(J) is a ground for reconsideration of bail of the appellants. In short, thus, the 'truce', in question, has become the ground for seeking bail. One of the submissions, made on behalf of another set of appellants, in similar appeals, is that the 'truce', which has been entered into by the State Government and the Government of India with DHD(J) is a ground for reconsideration of bail of the appellants. In short, thus, the 'truce', in question, has become the ground for seeking bail. If such a policy is permitted to be continued, the result would be that we would have a class of people in this country, who may violate the law with impunity and receive support from the Government in the name of bringing them into mainstream; whereas the State would be punishing those, whose crime may not be as serious as of the ones, who are receiving support from the Government Such an approach does not appear to have prima facie support from the Constitution and the laws of this country, because the State, in exercise of its sovereign power, cannot override the Constitution and the laws and all its actions have to be, and must always he, subject to and consistent with, the scheme of governance as envisaged by the Constitution. We, therefore, feel constrained to find out from the State as well as the Union Government as to what is their policy decision, whether such a policy decision has the backing of the Constitution and laws of this country and, to be more precise, whether it is permissible for the State to keep the criminal cases pending without formally withdrawing them, but take no action in accordance with law or take action contrary to law inasmuch as the proviso to section 43D(5) of UA(P)Act, 1967, does not permit a Court to grant bail to a person if the court is of the opinion that there are reasonable grounds for believing that the accusation, against such person, is prima facie true. If those, who had allegedly wielded arms, are allowed to go on bail, how can the same law be applied by the State, or resorted to by the State, for keeping the appellants behind bar. This is the dichotomy, which the State has to resolve, and, for tins purpose, requisite facts have to be placed before this court. If those, who had allegedly wielded arms, are allowed to go on bail, how can the same law be applied by the State, or resorted to by the State, for keeping the appellants behind bar. This is the dichotomy, which the State has to resolve, and, for tins purpose, requisite facts have to be placed before this court. For the moment, therefore, we direct the Commissioner and Secretary to the Government of Assam to appear, in person, along with all relevant records and clarify to this court as to what is the Government's policy, for that reason the policy has been adopted and whether the policy has the backing of law. In order to comprehensively understand the issues and decide these appeals effectively, we direct that notices be issued to the Union Home Secretary, Attorney General of India and the Advocate General of Assam, too, making the same returnable on 3.5.2012. We make it clear that in case, we find it absolutely indispensable, we may direct appearance of the appropriate officer(s) from the Union Home. Ministry with all relevant records and also the Director General, NIA. Furnish a copy of this order to the learned Standing Counsel, NIA, learned Senior Government Advocate, Assam, learned Public Prosecutor, Assam, and the learned ASG for doing the needful. List these appeals, for further hearing, on 30.4.2012." (emphasis added) 43. In pursuance of the order, dated 26.4.2012, passed by us, both, the Union of India as well as the State Government, have filed their affidavits and we have heard, as already indicated above, Mr. H. P. Rawal, learned Additional Solicitor General, on behalf of the Union of India, and Mr. K.N. Choudhury, learned Senior Additional Advocate General, Assam, on behalf of the State Government. We have also heard Mr. P.K. Goswami, learned senior counsel, for the appellant, and Mr. D. Das, learned senior counsel, appearing on behalf of the NIA. 44. The sum and substance of what has been submitted, on behalf of the Union of India and the State Government, to the query raised by this court, by order, dated 26.4.2012 (reproduced above), is as under: (i) The NCHAC, which is covered by the Sixth Schedule to the Constitution, has been provided, under the scheme of the Constitution, with certain degree of autonomy, for, the area, covered by NCHAC, consists of tribals. Their autonomy, therefore, includes some measure of legislative and executive power, which include financial and other administrative powers for the purpose of carrying on the administration, in the said area, in a manner, which would protect not only the cultural identity of the people of the area concerned, but also would, at the same time, improve their living standards, education and economy. With the emergence of militancy in the area, development activities were adversely affected in the entire region. In course of time, various groups launched arms struggle against the State raising issues of social, economic, cultural, ethnic and political rights for the people of the NCHAC. (ii) Realising the futility of violence, a.faction of the DHD, (i.e., Dima Halam Daogah) came forward, in the year 2002, for peace negotiation with the Government of India, seeking solution to their grievances within the ambit of the Constitution of India, while another faction of DHD opposed such peace talks. This oppositing group of militants, eventually, formed a terrorist gang, known as DHD(J), under the leadership of Jewel Gallows and Niranjan Hojai as their Chairman and Commander-in-Chief respectively. (iii) After the NIA was entrusted with the investigation of the case, which had given rise to NIA Case No. 1/2009, the situation changed and a demand was raised by some members of the civil society to bring the misguided militant youths to the mainstream of the society. The scheme for surrender-cum-rehabilitation of militants was, therefore, initiated by the Government with the object of weaning the misguided youths and hardcore militants from being strayed into the fold of militancy. (iv) The Government, both the Central as well as the State, have been, therefore, following a multi-pronged policy to deal with the insurgency and militant activities. The scheme for surrender-cum-rehabilitation of militants was, therefore, initiated by the Government with the object of weaning the misguided youths and hardcore militants from being strayed into the fold of militancy. (iv) The Government, both the Central as well as the State, have been, therefore, following a multi-pronged policy to deal with the insurgency and militant activities. The 'truce', which is one of the grounds for seeking bail by the present appellant, Jayanta Kumar Ghosh, is, thus, a step towards the holistic approach, which the State Government, in tandem with the Central Government, has adopted in order to restore normalcy in the area, which falls under NCHAC, and since the peace process, so initiated, could not have been successfully concluded if the leaders of the militant outfit remained incarcerated in jail, the Government decided that the leaders of the DHD(J), particularly, its Chairman, Jewel Garlossa, and its Commander-in-Chicf, Niranjan Hojai, may be provided with interim bail in order to facilitate the dialogue for peace and for reaching necessary conclusion, in this regard. (v) Pursuant to this understanding, an application for bail was moved by Jewel Garlosa and Niranjan Hojai, in the learned Special Court, but the learned Special Court, relying upon the proviso to section 43D(5), declined to grant bail. The said two accused, namely, Jewel Garlosa and Niranjan Hojai, therefore, preferred an appeal, under section 21 of the NIA Act, and, as already indicated above, a Division Bench of this court, by its order, dated 12.8.2011, passed in Crl. Appeal No. 126/2011, allowed the said two persons to go on bail subject to certain conditions imposed by the court. 45. Besides what have been mentioned above, Mr. Rawal, learned Additional Solicitor General of India, has, referring to the provisions of articles 73 and 162 of the Constitution of India, submitted that the executive power of the Union, under article 73, and the executive power of the State, under article 162, are co-extensive with their respective legislative powers and, hence, whatever can be done or could have been done by way of legislation, the Union as well as the State can do so in exercise of their respective executive powers, too, meaning thereby that in exercise of executive power, the State or the Union, as the case may be, can adopt a policy to enter into a dialogue with the militants so as to bring them to mainstream. The 'truce", in question, is, according to Mr. Rawal, a result of such a policy decision of the Government and the court would not, ordinarily, interfere with such a policy decision. 46. The present initiative for 'truce', contends learned Additional Solicitor General, is not outside the scheme of the Constitution of India and the laws, in force, in India, inasmuch as the executive power of the State or of the Union is co-extensive with their respective legislative powers and it is not necessary that there must be a legislation in existence or a legislation in force in order to enable the Executive to adopt a policy and implement the same in exercise of its executive powers. Reliance is heavily placed, on this proposition, by Mr. Rawal, learned Additional Solicitor General, as well as Mr. K.N. Choudhury, learned Sr. Additional Advocate General, on the decision of the Supreme Court, in Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab, AIR 1955 SC 549 . 47. Notwithstanding what has been submitted by the learned Addl. Solicitor General of India, it needs to be placed on record that there can be no dispute that the executive powers of the Union or the State are co-extensive with their respective legislative powers; but one can also not lose sight of the fact that the exercise of executive powers is subject to the provisions of the Constitution. This position was also not disputed. We have, therefore, having regard to the submissions made by the State as well as the Central Government, pointedly put to the learned Addl. Solicitor General if there is a legislation in place, whether the Union or the State, as the case may be, can, in exercise of its executive powers, take action contrary to the legislation. Keeping in tune with the dignity of the high office, which he holds, and the fairness, which such an office demands, the unhesitant answer of Mr. Rawal to the query, so put to him by the court, was that neither the Centre nor the State can do an act, in exercise of its executive powers, if the act is contrary to a legislation. 48. The logical extension of what Mr. Rawal has submitted and Mr. Rawal to the query, so put to him by the court, was that neither the Centre nor the State can do an act, in exercise of its executive powers, if the act is contrary to a legislation. 48. The logical extension of what Mr. Rawal has submitted and Mr. K.N. Choudhury, learned Advocate General, has not disputed, is that if the case of Niranjan Hojai and Jewel Garlosa were covered by the proviso to section 43D(5) of the UA(P) Act, then, they could not have been enlarged, on bail, by the learned Special Court and the High Court, as an appellate court, cannot interfere with such an order, when the learned Special Court's order is not contrary to, or inconsistent with, the proviso to section 43D(5). 49. When the above aspect of the matter was pointedly put to Mr. Rawal and Mr. Choudhury, none of them claimed that even if the cases of Niranjan Hojai and Jewel Garlosa were covered by the proviso to section 43D(5), they could have been enlarged on bail, interim or otherwise, by the High Court in exercise of its appellate jurisdiction under section 21(4) of the NIA Act. 50. Clearly, therefore, release of the said two accused persons, on interim bail, were, even according to the Government, not supported by law and, hence, their release, on interim bail, cannot be cited as an example by the present appellant to demand that he, too, be released on bail, or else, the State would be discriminating him as against those, who had taken resort to arms. The law, on this subject, is more than abundantly clear. 51. Before a person alleges discrimination, he must show that the action, which was taken in favour of someone, but is being refused to be taken in his case, was in accordance with law meaning thereby that if an action, executive or otherwise, of the Union or the State, is found to be contrary to law, then, no person can claim that the State must repeat such act in the name of removing discrimination. 52. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat the illegality, the Supreme Court has expressed its anxiety on such approach and has laid down the position of law, in Chandigarh Administration and Anr. 52. Noticing that the High Courts, in exercise of their writ jurisdiction, have been passing orders to remove discrimination and thereby asking the authorities concerned to repeat the illegality, the Supreme Court has expressed its anxiety on such approach and has laid down the position of law, in Chandigarh Administration and Anr. v. Jagjit Singh and Anr., (1995] 1 SCC 745, in the following words : "8. We arc of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent authority has passed a particular order in case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be allowed and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/ unwarranted order, it does not entitle the High Court to compel the authority to repeat the illegality over again and again. T1ie illegal/ unwarranted action must be corrected, if it can be done according to law — indeed, wherever, it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law — but even if it cannot be corrected, it is difficult to sec how it can be made a basis for its repetition. T1ie illegal/ unwarranted action must be corrected, if it can be done according to law — indeed, wherever, it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law — but even if it cannot be corrected, it is difficult to sec how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such please would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather tan examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenience to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case, than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course — barring exceptional situations -would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and illegal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. Each case must be decided on its own merits, factual and illegal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial word. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises." (emphasis added) 58. What follows from the above discussion is that the 'truce' does not give any right to the present appellant to demand his release on bail, when the 'truce' and the subsequent action, which the Government has taken pursuant to such 'truce' of getting Niranjan Hojai and Jewel Garlosa released, by ignoring the law, such an action of the Government cannot be said to be a validly changed situation warranting the appellant's release on bail. If we acted wrongly in the past, though may be unconsciously, it would not be fair, on our part, to act wrongly today and that, too, fully conscious that our action was earlier wrong. 54. Coupled with the above, it has been specifically submitted, on behalf of the Union of India, by Mr. Rawal, learned Addl. Solicitor General of India, that the present appellant, as a provider of fund to the DHD(J), is not entitled to bail nor is any of the other appellants, in the present scries of appeals, is, according to Mr. Rawal, entitled, in the face of the materials on record, to be released on bail. 55. It has been further made clear by Mr. Rawal, learned Additional Solicitor General, that as far as the present appellant, Jayanta Kumar Ghosh, is concerned, he cannot derive any strength or support from the 'truce', in question, and' his case, according to Mr. Rawal, being fully covered by the proviso to section 43D, cannot be considered on the same footing as the cases of DHD(J) leaders, namely, Jewel Garlosa and Niranjan Hojai. 56. Supporting the submissions of the learned Additional Solicitor General, Mr. Rawal, being fully covered by the proviso to section 43D, cannot be considered on the same footing as the cases of DHD(J) leaders, namely, Jewel Garlosa and Niranjan Hojai. 56. Supporting the submissions of the learned Additional Solicitor General, Mr. D. K. Das, learned senior counsel, appearing for the NIA, has also resisted, as already indicated above, the present appellant's prayer for bail on the ground that the appellant's case is fully covered by the proviso to section 43D(5) and, hence, the present appellant's case cannot be considered fit for being granted bail. 57. In effect, thus, notwithstanding the fact that the 'truce', which the Central and the State Government have claimed to have entered into with DHD( J), the Union of India and the NIA have resisted the present appeal on the ground that the appellant's case, being fully covered by the proviso to section 43D(5), the appellant is not entitled to be granted bail. 58. Resisting the present appeal, Mr. Rawal, learned Additional Solicitor General, has also submitted that no insurgent outfit or terrorist gang or unlawful association can function and survive without funds being made available to such terrorist gang or unlawful association by way of extortion or otherwise. In the case at hand, according to learned Additional Solicitor General, there are sufficient materials on record showing a criminal conspiracy to wage war against the State and also to commit various 'terrorist Acts', the present appellant was a party to the said criminal conspiracy and he had made available funds, by various means, to the executants of the DHD( J) and not only the appellant, but also the persons, similarly situated as the appellant is, may not be given the benefit of bail, for, their liberty on bail, contends the learned Additional Solicitor General, would have adverse affect not merely on the ongoing peace process, but would also create impediments in the orderly and fair trial inasmuch as the appellant can, if released on bail, influence the witnesses and persons, acquainted with the facts of the case, by making use of the money, which the appellant has had access to; and thereby defeat justice-. 59. We may also place on record the submissions of Mr. 59. We may also place on record the submissions of Mr. D. Das, learned Senior counsel, appearing for the NIA, who resisted the appeal tooth and nail, both on the ground of law and on the grounds of facts, by contending, inter alia, that the appellant had been a part of the larger conspiracy, as indicated in the charge sheet, and had not only helped the DHD( J) by misappropriation of Government funds, but also by carrying money from one place to another for the functionaries of the DHD(J). In this regard, Mr. Das further points out that it was on 9.7.2009 that the DHD( J) was declared as an unlawful association for a period of two years; and though the said Notification has not been renewed or/or no new Notification has been published in this regard, DHD(J), its members and associates are still required to be treated as members of the unlawful association, within the meaning of the UA(P) Act, at the time, when they had acted in the manner as they are claimed, in the charge sheet, to have acted. 60. What surfaces from the above discussion is that the fact that there has been so-called 'truce' between the Government of India or the State, on the one hand, and the DHD( J), on the other, such a 'truce' does not empower either the Union or the State Government to act contrary to law in the name of exercising sovereign authority of the State inasmuch as every organ of the State, be it Executive, Legislature or Judiciary, derives its source of authority from the Constitution and when the Constitution does not permit any of these organs including, obviously, the Executive to act, in exercise of its power, contrary to the legislation, which occupies the field, the present appellant, Jayanta Kumar Ghosh, cannot claim, depending upon the release of Niranjan Hojai and Jewel Garlosa, on interim bail, that he, too, shall be released on bail, because Niranjan Hojai and Jewel Garlosa were the ones, who had allegedly used arms; whereas the present appellant had alleged to have funded the DHD(J) by acting what Mohit Hojai had directed,especially, when not merely Mohit Hojai, but even the present appellant, Jayanta Kumar Ghosh, formed integral part of the conspiracy, which Jewel Garlosa and Niranjan Hojai had entered into with Mohit Hojai to carry out their 'terrorist Act'. Whether the restrictions imposed on a court by the proviso to section 43D(5) of the UA(P) Act apply to the High Court, when the High Court exercises its appellate jurisdiction under section 21(4) of the NIA Act, or whether the High Court can, while exercising its appellate jurisdiction, under section 21(4) of the NIA Act, take recourse to its special power, under section 439, Cr.PC, for granting bail to a person, accused of an offence, whose case is covered by the proviso to section 43D(5)? 61. Coming to the question as to whether the High Court can, while exercising its appellate jurisdiction under section 21 of the NIAAct, grant bail to an accused, whose case is covered by the proviso to section 43D(5) of the UA(.P) Act by taking resort to, if necessary, its special power under section 439, we must put on record that it has been, in no uncertain words, submitted by Mr. Rawal, learned Addl. Solicitor General, that as against the order of granting bail, or refusing to grant bail, to an accused by a Special Court, constituted under the NIA Act, the remedy to an aggrieved accused has been made available, by way of appeal, under section 21(4) of die NIAAct, and this power of appeal, according to Mr. Rawal, is co-extensive with the power of the trial court and, in exercise of its power, what the High Court is required to determine is as to whether the order, granting bail, or the order, refusing to grant bail, is, in the light of the facts on record and the law relevant thereto, was or was not justified and sustainable? If the High Court, points out Mr. Rawal, finds that the order, which stands impugned in an appeal under section 21(4), is an order, which is in tune with the materials available in the case diary, or the police report submitted under section 173, Cr.PC vis-a-vis the law relevant thereto, then, the High Court would have no reason to interfere with such an order of the Special Court; but, if the order is, otherwise; the High Court, in exercise of its appellate power, can interfere with the order of the Special Court. 62. 62. While considering an appeal under section 21(4), the High Court cannot, further contends the learned Additional Solicitor General, take aid of, or take recourse to, its special power of granting bail, as embodied in section 439 of the Code. For the purpose of sustaining the submissions, so made by him, the learned Additional Solicitor General has extensively relied on the decisions, in Redaul Hussain Khan and Others v. State of Assam and Others, 2009 (3) GLT 855, and Jayanta Kumar Ghosh and Another v. State of Assam and Others, 2010 (4) GLT 1, and National Investigation Agency v. Redaul Hussain Khan, 2010 (3) GLT 302 (2010) 5 GLR 704. 63. It may be noted that in support of his contention that the power given to die High Court, under section 439 of the Code, remains available to the High Court even when it is sitting as an appellate court, in exercise of its powers contained in section 21(4) of the NIA Act, against an order of the Special Court granting or refusing to grant bail, Mr. Goswami points out that unlike the Terrorist and Disruptive Activities Act, 1987 (TADA), and/or the Prevention of Terrorist Act, 2002 ('POTA'), section 2(d) of the UA(P) Act defines a 'Court'to mean a "Criminal Court having jurisdiction, under the Code, to try offences under the UA(P)A Act, and includes Special Court constituted under section 11 or section 21 of the NIA Act, 2008. 64. Thus, the word, 'Court', appearing in the proviso to section 43D(5), covers, according to Mr. Goswami, criminal courts, which are subordinate to the High Court, but does not include the High Court itself and that the word 'High Court' means, according to section 2(c) of the NIA Act, the High Court within whose jurisdiction a Special Court is situated. 65. In other words, what Mr. Goswami contends is that unlike TADA or POTA, the UA(P) Act defines 'Court' and this definition of court does not, according to Mr. Goswami, include High Court and, hence, the High Court, while exercising its appellate jurisdiction under section 21(4) of the NIA Act, is not disempowered from using its special power contained in section 439 of the Code, for, the word, 'Court', which appears in the proviso to section 43D(5), does not, reiterates Mr. Goswami, cover the High Court. 66. Resisting the above submissions, made on behalf of the appellant, Mr. Goswami, cover the High Court. 66. Resisting the above submissions, made on behalf of the appellant, Mr. Rawal, learned Additional Solicitor General, and Mr. Das, learned senior counsel, have heavily relied upon this court's conclusion, in Redaul Hussain Khan and Others v. State of Assam and Others, 2009 (3) GLT 855, and Jayanta Kumar Ghosh and Another v. State of Assam and Others, 2010 (4) GLT 1, that the High Court's power, while sitting in appeal, under section 21 of the NIA Act, against the Special Court's order, granting or refusing to grant bail, is co-extensive with the power of the Special Court and that the special power of the High Court, as provided in section 439 of the Code, will not be available to the High Court. 67. In short, thus, what the learned Additional Solicitor General and the learned senior counsel, appearing on behalf of the NIA, contend is that this court's appellate power is co-extensive with the power of the Special Court and when the Special Court was within the ambit of its power in not granting bail to an accused, whose case is covered by the proviso to section 43D(5) of the NIA Act, the High Court, too, cannot grant bail to such an accused by taking recourse to its special power under section 439 of the Code. 68. Coupled with the above, the learned Additional Solicitor General has pointed out that against this court's order, refusing to grant bail to accused Redaul Hussain Khan, the said accused carried the matter to the Supreme Court by way of Special Leave Petition, which gave rise to Special Leave Petition (Crl.) No. 5063/2010, but, on 25.8.2011, when the matter was called for hearing, accused Redaul Hussain Khan sought dismissal of his appeal, as withdrawn, with leave to him to approach the trial court, once again, with a fresh application for bail. 69. 69. The above submission, which had been so made on behalf of accused Redaul Hussain Khan, was resisted by the Union of India on the ground that since the High Court had cancelled the bail, which had been granted by the trial court, it should not be understood by the trial court that by virtue of the order, which accused Redaul Hussain Khan was seeking, the order of the High Court stood set aside or interfered with by the Supreme Court, whereupon the Supreme Court made it clear that this court's order, cancelling the appeal of the accused, Redaul Hussain Khan, was not being interfered with by the court. The relevant portion of the Supreme Court's order, dated 25.8.2011, read as under : "Having regard to the submissions made, we allow the prayer made on behalf of the petitioner to withdraw the Special Leave Petition [being SLP (Crl.) No. 5063/2010] mid the same is, accordingly, dismissed as withdrawn, with liberty to the petitioner to apply to the trial court afresh for grant of bail in the event there are any change in circumstances or any fresh facts are placed before the court. We also make it clear that we are not interfering with the order of the High Court." (emphasis is added) 70. Two things become crystal clear from the above directions of the Supreme Court, namely, (i) the liberty to apply afresh for bail has been granted provided there is any change in the circumstances or any fresh facts are placed before the court, and (ii) the High Court's order, refusing to grant bail to accused Redaul Hussain Khan, was upheld meaning thereby that the propositions of law, as regards the contours of the High Court's appellate jurisdiction, under section 21(4) of the NIAAct, as laid down in Redaul Hussain Khan (supra), by this court, have not been disagreed with. 71. relying upon the order, which has been reproduced above, Mr. 71. relying upon the order, which has been reproduced above, Mr. Rawal has submitted that notwithstanding the fact that the appeal was allowed to be withdrawn by the appellant, R.H. Khan, the Supreme Court has not disagreed with this court's views and conclusions, reached therein, and has saved the same and, in such circumstances, it logically follows that so long as the order of the Supreme Court remains undisturbed, there can be no escape from the conclusion that the power, vested in the High Court by section 439 of the Code, cannot be taken recourse to, or resorted to, by the High Court, while exercising its appellate jurisdiction under section 21(4) of the NIAAct. 72. Referring to the speech, which had been made by the mover of the two Bills, namely, the National Investigation Agency Bill, 2008, and the Unlawful Activities (Prevention) Bill, 2008, for a combined discussion, in the Lok Sabha, Mr. Goswami points out that it has been specifically submitted by Mr. P. Chidambaram, as Home Minister, in the Lok Sabha, while moving the said two Bills, that there is only one provision as regards the Bill, which is restrictive in nature inasmuch as it lays down that when the court is of the opinion that there are reasonable ground for believing that the accusation, against the accused person, is prima facie true, then and then alone, bail can be refused and that the High Court and the Supreme Court have ample powers and this restriction, imposed on the Special Court, would not, in anyway, bind the High Court and/or the Supreme Court. 73. Seeking to derive strength from the above speech of the mover of the Bills, Mr. Goswami, learned senior counsel, points out that when the mover of the Bills himself did not want to bind the High Court and the Supreme Court by the restrictive provisions, contained in the proviso to section 43D, there is no reason for this court to put upon itself the restrictions of not applying the provisions of section 439 of the Code even when sitting as an appellate court in exercise of its power under section 21(4) of the NIAAct. 74. In support of his above submissions, Mr. 74. In support of his above submissions, Mr. Goswami has presented before us the speeches, made by the mover of the Bills, and also by the then Minister of Science and Technology, when the National Investigation Agency Bill, 2008, and the Unlawful Activities (Prevention) Bill, 2008, were introduced, as indicated above, for a combined discussion in the Lok Sabha. The speech of the mover of the Bills reads as under: "Then, we say under what circumstances bail cannot be granted. This is one provision that I would like to draw your kind attention. We are saying that if on a perusal of the case diary or the report under section 173 — that is the final report or what we call the challan — the court is of the opinion that there are reasonable grounds for believing that the accusation against a person is prima facie true, then and then alone can bail be refused. Please remember that in POTA and other Acts, it was the other way round. The court must come to the conclusion that the accused person is not guilty of the offence and that he is not likely to commit any other offence while in bail, which really meant prejudging the case. So, what we have said is, you can refuse bail only under one circumstance, namely, if on a perusal of the case diary or the report under section 173, you come to the conclusion that there are reasonable grounds to believe that the accusations against the accused are prima facie true, only then the court can decline hail. Again, the High Courts and the Supreme Court have ample powers and this does not, in any way, bind the High Courts and the Supreme Courts. This will apply mainly to the trial court." (emphasis supplied) 75. While participating in the debate, the then Minister of Science and Technology and Minister of earth Sciences, Sri Kapil Sibal, had stated thus : "Sir, the second provision is the bail provision. The provision under POTA was the following that the Public Prosecutor will be heard and the court will grant bail if the court comes to the conclusion that the accused is not guilty of the offence. Now, as you would know, before the trial no Court can ever come to the conclusion that the accused is not guilty of the offence. Now, as you would know, before the trial no Court can ever come to the conclusion that the accused is not guilty of the offence. Therefore, no bail could ever be granted. We have deviated from that in the present law. We have not accepted that in the present law. The present law says what the Code of Criminal Procedure says that the prosecutor will be heard but bail will only be granted if the court comes to the conclusion that there are reasonable grounds to believe that there is a prima facie case against the accused. So, there is a departure. They seem to be under some misapprehension that after 10 years we are again adopting POTA. That is not right. This is an amendment to the Unlawful Activities Prevention Act. We, in Government, we in politics learn from experiences just as they have learnt. There for, we do believe that in given circumstances, in the context of the situation that is currently there, it is important for us to amend certain prolusions of bail to make sure that you cannot tell the public at large that look, this Government is not doing anything about dealing with an emergent situation that faces the nation. That is the kind of politics you play. We want to tell the country that we, as a political party, the UFA as an entity, are definitely tough on terror, but, at the same time, we do not want to throw in the dustbin valuable Human Rights and the balance of the two is important for formulating any law in the country. That is the basis on which we have moved forward. We must take care that human rights are not infringed and, at the same time, we must make sure that we shall have enough laws in hand to take care of terror." (emphasis supplied) 76. In other words, what Mr. Goswami contends is that, while sitting as an appellate court, under section 21(4) of the NIA Act, the High Court does not have the restrictions, which apply to the Special Court or an ordinary criminal court inasmuch as the word, 'Court', which appears in the proviso to section 43D(5), cannot, according to Mr. Goswami, include, and may not be interpreted to include, a High Court. 77. Are Mr. Goswami, include, and may not be interpreted to include, a High Court. 77. Are Mr. Goswami's above submissions that (i) the word 'Court', which appears in the proviso to section 43D(5), does not include a High Court, and (ii) even while exercising appellate jurisdiction, under section 21(4), the High Court can take the aid of its special power, under section 439 of the Code, to grant bail correct and sustainable in law? 78. Our quest for an answer to the above question brings us to the scheme of the Code of Criminal Procedure, 1973 ('Code') and, particularly, to the question as to whether the High Court, while considering an application for bail, under section 439 of the Code, can exercise its special power overriding the restrictive provisions, which may have been made in a special penal statute. 79. In other words, what this court is required to determine is: when a High Court considers an application for bail, under section 439 of the Code, arising out of a case covered by a special enactment, whether the High Court can take recourse to its special power, embodied in section 439 of the Code, overriding the restrictive provisions, which may have been made by the special enactment? 80. Having heard Mr. Goswami, learned senior counsel, on his contention that unlike TADA or POTA, the UA(P) Act defines 'Court' and, hence, the word, 'Court.', which stands defined in section 2(d) of the UA(P) Act, would not include a High Court, it had to be pointed out by this court to Mr. Goswami that there was no necessity, in the TADA, to define a 'Court' inasmuch as TADA created offences, prescribed punishments as well as the procedures for investigation, remand of an accused and trial and, thus, the designated Court, under TADA, was the singular Court, which had the power to deal with the applications for bail, pass orders of remand, etc., in terms of section 167 of the Code, and there was, therefore, no requirement to define as to what a 'Court' meant. 81. It has been further pointed out by us to Mr. 81. It has been further pointed out by us to Mr. Goswami that as far as POTA was concerned, offences, created by POTA, prescribed not merely punishments, but also the procedure for investigation and trial and that POTA also contained the power of the Special Court, during investigation as well as trial, and, hence, neither in the case of TAD A nor in the case of POTA, there was necessity of defining 'Court', because TADA as well as POTA envisaged creation of a singular Court, which was to deal with not only remand of an accused in terms of section 167 of the Code, but also in respect of matters relating to granting or refusing bail and no court, other than Designated Court, in TADA, and no court, other than Special Court, constituted in POTA, could have dealt with offences under the TADA or POTA, as the case may be. However, the significant difference between the two, namely, Designated Court, under the TADA, and the Special Court, under the POTA, was that while, in the case of TADA, refusal of bail could have been challenged before the Supreme Court, POTA made, same as in the case of NIA Act, specific provisions for appeal to the High Court and, in this regard, there is no difference between Special Court, constituted under the POTA, and the Special Court, constituted under the NIAAct; whereas offences, under the UA(P) Act, (before the UA(P) Act underwent amendment, in the year 2008), were triable by ordinary Criminal Courts and, in fact, some of the offences, under the unamended UA(P) Act, could have been tried even by a Magistrate and not necessarily by a Sessions Court. However, with the amendment/ introduced in the year 2008, since a Special Court, constituted under the NIA Act, was required to exercise the power given to an ordinary Court, on account of the legislative scheme of the NIAAct, to try offences under the UA(P) Act, it became necessary to include a Special Court, constituted under the NIAAct, within the meaning of the term 'Court'. Obviously, therefore, the definition of Court', as appearing in section 2(d) of the UA(P) Act, had to be expanded in order to include, within the expression 'Court', a 'Special Court', constituted under the NIAAct. 82. Obviously, therefore, the definition of Court', as appearing in section 2(d) of the UA(P) Act, had to be expanded in order to include, within the expression 'Court', a 'Special Court', constituted under the NIAAct. 82. On being pointed out by this court as to why the definition of Court' had to be expanded in the UA(P) Act, Mr. Goswami, learned senior counsel, reacts by submitting that depending upon the Investigating Agency, the UA(P) Act has envisaged two kinds of Courts, one is an ordinary Criminal Court and me other is a Special Court, constituted under the NIAAct, and that in the case of an ordinary Criminal Court, the special power of the High Court to grant bail by taking recourse to section 439 of the Code would be available; whereas no such power, according to the respondents, would be available to a High Court, in an appeal under section 21(4), if the application for bail is either granted or rejected by a Special Court. 83. The above classification, according to Mr. Goswami, is highly unreasonable, discriminatory and, therefore, not sustainable in the face of article 14 of the Constitution inasmuch as the High Court, while sitting as a court of appeal under section 21(4), would be denuded of its special power, under section 439 of the Code, to grant bail. To create such a classification unreasonably and arbitrarily, depending upon which Investigating Agency has conducted the investigation, is, according to Mr. Goswami, wholly illogical and cannot be sustained. 84. According to Mr. Goswami, therefore, the provisions, embodied in the NLA Act, have to be interpreted in such a manner that there is no discrimination between two persons, accused of commission of same offence under the UA(P) Act, merely because the Investigating Agencies are different. Since such an interpretation, if attributed to the provisions of bail, would make the NLA Act discriminatory, it is the duty of this court, contends Mr. Since such an interpretation, if attributed to the provisions of bail, would make the NLA Act discriminatory, it is the duty of this court, contends Mr. Goswami, that the NIAAct be interpreted in such a manner that notwithstanding the classification, which has been made by the NLA Act read with the UA(P) Act, the relevant legislations are saved and this can be done if it is held that even while sitting, in appellate jurisdiction, over an order passed by a Special Court, constituted under the NIA, granting or refusing bail, the High Court would nevertheless have special power under section 439 of the Code to allow an accused to go on bail. Contending that it is the duty of the court to interpret a legislation in such a manner that the interpretation renders the legislation valid, Mr. Goswami places reliance on Kedar Singh v. State of Bihar, AIR 1962 SC 955 , M. Rathinaswami v. State ofTamilnadu, (2009) 5 SCC 625 and Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 . 85. Having, thus, settled that the interim bail granted to Jewel Garlosa and Niranjan Hojai cannot become the basis for granting bail to the present appellant, let us, now, turn to Mr. Goswami's argument that while exercising appellate jurisdiction, under section 21(4) of the NIA Act, the High Court cannot be said to have been denuded of its special power given to it by section 439 of the Code and, therefore, the special power, as embodied in section 439 of the Code, would always remain available to the High Court for the purpose of granting bail, even when the High Court is sitting, in appeal, against the order of the Special Court rejecting the appellant's application for bail. 86. Let us, first, clearly understand the meaning and effect of the expression 'Court', which, in the light of the definition of Court', as given by section 2(d) of the, UA(P) Act, means, 'a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008.' 87. While considering the question as to what the definition of 'Court", given in the UA(P) Act, means and conveys, when it states that 'Court' means a criminal court having jurisdiction, under the Code, to try offences under this Act, (i.e., the UA(P) Act), it is exceedingly important to bear in mind that it is the Code, which gives us classification of courts. Section 6 of the Code reads: "CONSTITUTION OF CRIMINAL COURTS AND OFFICES 6. Classes of criminal courts. — Besides the High Courts and the courts constituted under any law, other that this Code, there shall be, in every State, the following classes of criminal courts, namely : (i) Court of Sessions; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates." 88. From a bare reading of what section 6 embodies, it is clear that within the classes of criminal courts fall not merely Court of Sessions or Judicial Magistrates of First Class or Metropolitan Magistrates or Judicial Magistrate of Second Class and Executive Magistrates, but also High Courts and Courts, which are constituted under any law other than the Code. 89. The expression, 'Court', therefore, would include not merely courts, which, ordinarily, exercise criminal jurisdiction, but also High Court inasmuch as section 6 read with section 407(1)(iv) of the Code makes it crystal clear that 'High Court' has the power to transfer 'any case' to itself and 'try' the same. Necessarily, therefore, in a given situation, High Court can try a case, covered by the UA(P) Act, provided that the case is triable or is being tried by an ordinary Criminal Court other than a Special Court, constituted under the NLA Act. What it cannot try, in the light of A.R. Antulay v. R. S. Nayak, (1984) 2 SCC 500 , is a case, which is triable by the Special Court constituted under the NIA Act, for, in terms of section 13(2), as rightly pointed out by Mr. Goswami, a case, pending in the Special Court, can be transferred, in terms of section 13(2), to a Special Court only either within the same State or to any other State. 90. The expression 'Court', which appears in the proviso to section 43D(5), does not, therefore, exclude the High Court within whose jurisdiction the Special Court, constituted under the NIAAct, is situated. 90. The expression 'Court', which appears in the proviso to section 43D(5), does not, therefore, exclude the High Court within whose jurisdiction the Special Court, constituted under the NIAAct, is situated. When the High Court falls within the definition of 'Court' as given by section 2(d) of the UA(P) Act, it is not only undesirable, but wholly impermissible to exclude from the expression 'Court', which appears in the proviso to section 43D(5), a High Court, within whose territorial jurisdiction, a given Special Court, under the NIA Act, is situated. 91. We, therefore, find no force in the contention of Mr. Goswami that merely because of the fact that mover of the Bills, in question, made an observation, while moving the Bills in the Lok Sabha, that the restrictions of granting of bail, imposed on Special Court, would not cover High Court, the High Court is free to take recourse to its special power under section 439 of the Code even though it is sitting, as an appellate court, on the order of the Special Court. Otherwise also, when a Special Act imposes certain restrictions on the grant of bail to a person accused of certain offence(s), such restrictions cannot be ignored by the High Court, while exercising its special power to grant bail under section 439 of the Code. A glaring example, in this regard, is the role of the High Court in matters of bail to be granted to a person, accused of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985. 92. Can the High Court, by taking recourse to its special power under section 439 of the Code, grant bail to a person, accused of an offence, when the case of such a person falls within die restrictive provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985? The answer to this question has to be an emphatic 'no'. 93. The Unlawful Activities (Prevention) Act, 1967, which is being referred to in these appeals as the UA(P) Act, is a Special Act, as amended in the year 2008, with a view to provide stringent measures to combat terrorism and secure thereby the resolution adopted by the Security Council of the United Nations on 28th September, 2001. 94. 93. The Unlawful Activities (Prevention) Act, 1967, which is being referred to in these appeals as the UA(P) Act, is a Special Act, as amended in the year 2008, with a view to provide stringent measures to combat terrorism and secure thereby the resolution adopted by the Security Council of the United Nations on 28th September, 2001. 94. To find a correct answer to the question as to whether High Court, under section 439 of the Code, or under its appellate jurisdiction, under section 21(4) of the NIA Act, has the power to override the statutory provisions embodied in section 43D(5) of the UA(P) Act, which is a 'special enactment', one must bear in mind that section 43D(5) starts with non-obstante clause, stating that "notwithstanding anything contained in the Code, no person, accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released, on bail or on his own bond, unless the Public Prosecutor has been given an opportunity of being heard on the application for such release provided that such accused person shall not be released on bail or on his own bond if the court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true". 95. With regard to the above, one has to also bear in mind section 4 of the Code, which reads as under : "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 oilier law shall he investigated, inquired into, tried, and otherwise dealt with according to the same provisions, hut 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." 96. From the provisions, embodied in section 4 of the Code, it can be clearly seen that when there is a special enactment, in force, relating to the manner of the investigation, enquiry or otherwise dealing with such offence, the other powers of the Code should be subjected to the provisions of the special enactment. 97. From the provisions, embodied in section 4 of the Code, it can be clearly seen that when there is a special enactment, in force, relating to the manner of the investigation, enquiry or otherwise dealing with such offence, the other powers of the Code should be subjected to the provisions of the special enactment. 97. What logically follows from the above is that the power to grant bail, even under the provisions of section 439 of the Code, is subject to the conditions, which the proviso to section 43D(5) imposes. 98. Coupled with the above, one also needs to bear in mind that when a particular section starts with non-obstante clause, it must be given its due meaning and in case of inconsistency between the provisions of section 439 of the Code and section 43D(5) of the UA(P) Act, section 43D(5) shall prevail over section 439 of the Code as per section 4 of the Code itself. It is, therefore, not difficult to conclude that the proviso to section 43D(5) would prevail over the special power of the High Court under section 439 of the Code. 99. Moreover, the limitations, on granting bail specified in section 43D (5) of the UA(P) Act, are in addition to the limitations under the Code or any other law for the time being in force as per provisions of section 43D(6) of the UA(P) Act itself, for, section 43D(6) of the UA(P) Act reads, "The restrictions on granting of bail in sub-section (5) are in addition to the restrictions under the Code or any other law for the time being in force on granting of bail." 100. One may pause, at this stage, and refer to the provisions of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act') inasmuch as section 37 of the NDPS Act, too, is a Special Act and imposes certain restrictions, as does the UA(P) Act, on the grant of bail to an accused. One needs to note, in this regard, that both the provisions, namely, section 37 of the NDPS. Act as well as section 43D(5) start with non-obstante clause and, therefore, provide, logically speaking, additional restrictions on the court's power apart from the restrictions, which are imposed by the Code on the court's power to release a person on bail. 101. One needs to note, in this regard, that both the provisions, namely, section 37 of the NDPS. Act as well as section 43D(5) start with non-obstante clause and, therefore, provide, logically speaking, additional restrictions on the court's power apart from the restrictions, which are imposed by the Code on the court's power to release a person on bail. 101. No High Court can, therefore, exercise its special power, under section 439 of the Code, ignoring the restrictions, which may have been imposed on the court's power to grant bail by a Special Act, particularly, when sub-section (6) of section 43D makes it clear that the limitations, on the court's power to grant bail, are in addition to the limitations, which exist under the Code or under any other law for the time being in force. 102. The above position of law may be looked into from yet another angle. For this purpose, section 37 of the NDPS Act is reproduced below : "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless — (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) 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. (2) The limitations on granting bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail." 103. Section 37 of the NDPS Act starts with non-obstante clause meaning thereby that notwithstanding anything contained in the Code, no person, accused of an offence, shall be released on bail unless the conditions prescribed therein are satisfied. 104. Section 37 of the NDPS Act starts with non-obstante clause meaning thereby that notwithstanding anything contained in the Code, no person, accused of an offence, shall be released on bail unless the conditions prescribed therein are satisfied. 104. It is abundantly clear that the provisions of the section 37 of the NDPS Act limits, in negative terms, the scope of applicability of the provisions of the Code regarding bail and it cannot, therefore, be held that the special power of the High Court to grant bail, under section 439 of the Code, is not subject to the limitations prescribed by section 37 of the NDPS Act. 105. The non-obstante clause, with which section 37 starts, clearly intends to restrict the special power, given under section 439, to grant bail. Moreover, if there is any inconsistency between the provisions of section 439 of the Code and the other provisions of bail, incorporated in the special enactment, the provisions, embodied in the special enactment, shall, in the light of the provisions of section 37 of the NDPS Act, read with section 4 of the Code, prevail over section 439 of the Code. 106. What may, now, be noted is that that the NDPS Act provides, under sub-section (3) of section 36 A, a special power, as regards granting of bail. Section 36A(3) of the NDPS Act reads as under: "Nothing contained in this section shall be deemed to effect the special power of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the powers under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36." 107. In Narcotic Control Bureau v. Kishan Lal, (1991) 1 SCC 705 , a contention was raised that the limitations, placed on the High Court's power by section 36A(3) of the NDPS Act, car of create any fetters in the exercise of the High Court's power under section 439 of the Code. In Narcotic Control Bureau v. Kishan Lal, (1991) 1 SCC 705 , a contention was raised that the limitations, placed on the High Court's power by section 36A(3) of the NDPS Act, car of create any fetters in the exercise of the High Court's power under section 439 of the Code. Commenting on this contention, the Supreme Court, in Kishan lal (supra), held that the powers of the High Court to grant bail, under section 439 of the Code, to a person arrested under NDPS Act, is subject to the limitations contained in the provisions of section 37 of the NDPS Act and the restrictions placed, on the powers of the court under the said section, are applicable to the High Court, too, in the matter of granting bail. 108. The Supreme Court, in the case of Union of India v. Abdullah, (2004) 13 SCC 504 , relying on its previous decision, in Superintendent NCB v. R. Paul Swamy, (2000) 9 SCC 549 , held that in matters arising out of the NDPS Act, grant of bail is controlled by section 37 of the Act and it is mandatory for the court to hear public prosecutor and come to a prima facie conclusion that there is no material to come to the conclusion that the accused could be held guilty of the charges levelled against him and if the said provision is not complied with, High Court cannot release a person on bail. 109. The decision, in Abdullah (supra), R. Paul Swamy (supra) and Kishan lal (supra), furnish glaring examples of the High Court's power being subject to the limitations, which may be imposed on the power to grant bail by a Special Act even when section 439 of the Code, otherwise, applies; whereas the case at hand is one, where section 439 of the Code does not apply, when the High Court considers, in an appeal, the correctness of the order of the Special Court, constituted under the NIA Act, granting or refusing to grant bail. 110. 110. Leaving none in doubt, the Supreme Court, in NCB v. Karma Phuntsok, (2005) 12 SCC 480 , further held that section 37 of the NDPS Act has an overriding effect over other provisions of the Code and, hence, the High Court must follow the provisions of section 37 of the NDPS Act, while considering the application for bail even under its appellate jurisdiction under section 389 of the Code. 111. With regard to the above, one may also refer to rule 184 of the Defence and Internal Security of India Rules, 1971, which had imposed special restrictions on the power to grant bail. 112. Rule 184 of the Defence and Internal Security of India Rules, 1971, read as follows : "184. Special Provision regarding bail : Notwithstanding anything contained in the Code of 'Criminal Procedure, 1898 (5 of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless — (a) The prosecution has been given an opportunity to oppose the application for such release, and (b) Where the prosecution opposes the application and the contravention is of any such provision of these rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the court is satisfied that there arc-reasonable grounds for believing that he is not guilty of such contravention." 113. Considering the fact that rule 184 of the Defence and Internal Security of India Rules, 1971, commences with a non-obstante clause and its operative part imposes a ban on release of an arrested person on bail or on release of a person convicted for contravention of the Rules, the Supreme Court held, in Balchand Jain v. State of M.P., (1976) 4 SCC 572, that though Rule 184 does not stand in the way of Court of Sessionss or High Court in granting anticipatory bail on the ground that the two provisions operate at two different stages, yet the policy, behind this rule, would have to be borne in mind by the Court, while exercising its power to grant anticipatory bail under section 438 of the Code too.- 114. In Balchand Jain (supra), it was pointed out by the Supreme Court that the rule making authority obviously thought that offences, arising out of contravention of the said Rules and Orders made thereunder, were serious offences as they might imperil the defence of India or civil defence or internal security or public safety or maintenance of public order or hamper maintenance of supplies or services to the life of the community and, hence, it provided in rule 184 that no person, accused or convicted of contravention of any rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application of such release and, in case of contravention of a rule or order specified, in this behalf, in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the rule making authority for releasing, on bail, a person arrested on an accusation of having committed contravention of any rule or order made under the Rules, it must follow a fortiori, concludes the Supreme Court, that the same conditions must provide the guidelines, while exercising the power to grant anticipatory bail to a person apprehending arrest on such accusations, though they would not be strictly applicable. 115. The restrictions, imposed by the proviso to section 43D(5) of the UA(P) Act to grant bail, is applicable not only to the Special Court constituted under the NIA Act, but would apply, with equal vigour, to each and every Court, which has the jurisdiction under the Code to try an offence under the UA(P) Act, for, the UA(P) Act has clearly defined the meaning of the word, 'Court' under section 2(d) of the Act. 116. The limitations, imposed on the grant of bail by the proviso to section 43D(5), apply to every court, which has jurisdiction to try offences under the UA(P) Act and this power would apply as much to the High Court as the same apply to any ordinary Criminal Court, for, the High Court, under section 407(1) (iv) of the Code, can withdraw any criminal case and try the same. 117. 117. When an ordinary criminal court, other than the Special Court, constituted under the NIAAct, deals with a case, under the provisions of the UA(P) Act, such a case, as already pointed out above, can be withdrawn by the High Court in exercise of its power under section 407(1)(iv) and the High Court would be free to try such a case. The limitations, which are, thus, created for the court, in general, by the proviso to section 43D(5), would apply even to the High Court. It may, now, be noted that since the NDPS Act does not make any provisions for bail as against the order granting or refusing to grant bail by a Court dealing with an offence under me NDPS Act, the application for bail is made to the High Court for invoking its special power under section 439 of the Code. However, while exercising it special power under section 439 of the Code, the High Court cannot override special restrictions, which have been imposed on the court's power to grant bail by the NDPS Act. Same is the situation in the present case, because even the High Court, while exercising power under section 439 of the Code, would not be able to release a person if such a person's case falls within the ambit of the proviso to section 43D(5). 118. From the reading of the section 21 of the NIAAct, it can be seen that when a scheduled offence, under the NIA Act, is being investigated by National Investigating Agency, which we have referred to as NIA, a person, arrested by the NIA, would, automatically, lose his right to approach High Court or Court of Sessions under section 439 of the Code for his release on bail. On the other hand, when a person is arrested by police personnel, other than the personnel of the NIA, for the commission of the same scheduled offence and same is investigated by an investigating authority other than the National Investigating Agency, then, such a person can approach the High Court under section 439 of the Code for his release on bail; but, while considering a bail application, even the High Court would not be able to ignore the limitations imposed on the power to grant bail by the proviso to section 43D(5) of the UA(P)Act. 119. 119. The Legislature has created the above procedural difference, with regard to die provisions of bail, with some underlying principle so as to bring more stringent provisions for release of a person on bail, while the offence is being investigated by the National Investigating Agency. The Legislature by virtue of section 21(4) of National Investigation Agency Act, 2008, has, therefore, with its underlying principle, intentionally restricted the right of an individual to seek bail under section 439 of the Code, which is, otherwise, a special power conferred upon the High Court. 120. The procedural difference for investigation, trial and enquiry by two different Investigating Agencies, while investigating a particular offence, under the same statute, may be different at different points of time. This is well recognized and accepted principle in criminal jurisprudence. For example, when an offence, under the NDPS Act, is being investigated by Customs Officials, the statement of an accused, recorded by customs officials during investigation, is admissible in evidence as per section 108 of the Customs Act, 1962, inasmuch as the customs officials are not police officials as per section 25 of the Evidence Act - See Illias v. Collector of Customs, AIR 1970 SC 1065 and Raj Kumar Karwal v. Union of India, AIR 1991 SC 45 . See also State of Punjab v. Barkat Ram, AIR 1962 SC 276 , Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 , Badaku Joti Savant v. State of Mysore, AIR 1966 SC 1746 , State of U.P. v. Vyas Tewari, AIR 1981 SC 635 , Raju Premji v. Customs, NER, Shillong Unit, (2009) 16 SCC 496 , Pyare lal Bhargava v. State of Raj as than, AIR 1963 SC 1094 and Kanhaiyalal v. Union of India, (2008) 4 SCC 668 . Moreover, as the said customs officials are not police official, they are nor empowered to file charge sheet under section 173 of the Code and, therefore, they can only file a complaint within the meaning of section 2(d) of the Code on completion of investigation under section 36A(d) of the NDPS Act. On the other hand, when the same offence is being investigated by police officials under NDPS Act, the statement of an accused, recorded during investigation, is inadmissible in evidence due to the specific bar contained in section 25 of the Evidence Act. On the other hand, when the same offence is being investigated by police officials under NDPS Act, the statement of an accused, recorded during investigation, is inadmissible in evidence due to the specific bar contained in section 25 of the Evidence Act. This principle of law has been further reiterated by the Supreme Court in Rajkumar Karwal v. Union of India, (1990) 2 SCC 409 . 121. The Legislature, while curtailing the some right of an individual to apply for bail, under section 439 of the Code, has simultaneously incorporated the provisions of appeal under section 21(4) of NIAAct in order to bring perfect balance between the conflicting interests. 122. When there is a special enactment, in force, the NIAAct, relating to the manner of the investigation, enquiry or otherwise dealing with any offence or class of offences, the power, under the Code, should be subject to such special enactment. In interpreting the scope of such a statute, the dominant purpose, underlying the statute, has to be borne in mind. 123. The Supreme Court, therefore, in Lt. Colonel Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 , observed as follows : "The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognized canons of construction is that the Legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the court should adopt literal construction if it docs not lead to any absurdity." 124. By enacting the NIAAct, the Legislature has treated terrorism as one of the scheduled, offences and thereby created a Special Court to deal with the special problem and also provided a special procedure for release of a person on bail booked under the scheduled offences. The Parliament, in its wisdom, has, thus, created a new class of offences under its schedule and provided a special procedure for trial of such offences and special procedure for bail as well. The manifest intention of the Parliament is to minimize the scope of the power of the High Court, with regard to the provisions of bail in respect of the scheduled offences under the NIAAct. Otherwise, the Legislature would not have made provisions for appeal to the High Court restricting use of the special power embodied in section 439 of the Code. 125. Otherwise, the Legislature would not have made provisions for appeal to the High Court restricting use of the special power embodied in section 439 of the Code. 125. Heavily relying on the decision, in State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others, (2003) 8 SCC 50 , Mr. Goswami, learned senior counsel, has submitted that while sitting in an appeal, the High Court can examine Special Court's order, on merit, 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 merits of the case or not. The relevant observations, appearing in this regard, in Salimbhai Abdulgaffar Shaikh (supra), which Mr. Goswami relies upon, read as follows : "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 34 of 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 contradiction 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 hail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court." (emphasis is added) 126. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court." (emphasis is added) 126. While interpreting section 34(4) of POTA, the Supreme Court has held, in Salimbhai Abdulgaffar Shaikh (supra), that while exercising the appellate jurisdiction, even an order granting bail can be examined, on merit, 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 or not. 127. While considering the above observations, made in Salimbhai Abdulgaffar Shaikh (supra), it needs to be noted that while sitting, in an appeal, against an order of the Special Court, the High Court has to exercise the appellate court's power without any kind of fetters on its powers. The expression, 'without any kind of fetters on its powers', which appears in the observations made in Salimbhai Abdulgaffar Shaikh (supra), would not mean that the High Court's appellate powers would not be co-extensive with the Special Court's power or that the High Court's appellate power would be far in excess of the Special Court's power. 128. It is important to note, at this stage, that the High Court's power, under section 439 of the Code, can be taken recourse to not merely for the purpose of seeking bail, but also for the purpose of cancellation of bail. In the case of cancellation of bail, the High Court would not, ordinarily, interfere unless the accused is shown to have abused his liberty of bail; whereas this limitation does not apply at all to the High Court, when the High Court, in exercise of its appellate power, examines the Special Court's order allowing an accused to go on bail. If an accused did not, on the basis of the facts of a given case, deserved to go on bail, the High Court, while sitting as an appellate court, can interfere with such an order even if the accused has not abused his liberty of bail. This is what had been precisely done, in Redaul Hussain Khan's case (supra), by this court. 129. This is what had been precisely done, in Redaul Hussain Khan's case (supra), by this court. 129. What needs to be borne in mind is that, ordinarily, when a court, subject to the territorial jurisdiction of a High Court, grants bail, the High Court would not interfere with such an order under section 439 of the Code even if it takes the view that it would have been more reasonable, on the part of the lower court, to have not allowed bail. However, sitting as an appellate court, the High Court can, when there are two views possible, take the view that it was not reasonable to grant bail and can, therefore, cancel bail even if the accused did not abuse the liberty of bail. Leaving none in doubt, the Supreme Court had, in fact, in Salimbhai Abdulgaffar Shaikh (supra), which Mr. Goswami, learned senior counsel, so heavily relies upon, observed that the provisions of POTA are clear contra-distinction with that of the Code, where no appeal has been provided against an order granting bail and that existence of an order of the Special Court, either allowing bail or refusing bail, is a sine qua non for approaching High Court for bail. In the face of such a clear declaration of law, it is impossible to take the view, as contended on behalf of the appellant, that the High Court, while exercising its appellate jurisdiction under section 21(4), is not denuded of its special power under section 439 of the Code and/or can freely take the aid of its special power, under section 439 of the Code, to allow an accused to go on bail even if his case happened to be covered by the restrictive provisions of the proviso to section 43D(5). 130. In order to show the width of the power of the appellate court, Mr. Goswami has also referred to Snehadeep Structures (P.) Ltd. v. Maharashtra Small Scale Industry Development Corporation Ltd., (2010) 3 SCC 34 , wherein it has been observed as follows : "36. On a perusal of the plethora of decisions aforementioned, we are of the view that appeal is a term that carries a wide range of connotations with it and that appellate jurisdiction can he exercised in a variety of forms. It is not necessary that the exercise of appellate jurisdiction will always involve re-agitation of entire matrix of facts and law. It is not necessary that the exercise of appellate jurisdiction will always involve re-agitation of entire matrix of facts and law. We have already seen in Abhayakar that even an order passed by virtue of limited power of revision under section 115 of the Code is treated as an exercise of appellate jurisdiction, though under that provision, the court cannot go into the questions of facts. Given the weight of authorities in favour of giving such a wide meaning to the term appeal, we are constrained to disagree with the contention of the learned counsel for the respondent Corporation that appeal shall mean only a challenge to a decree or order where the entire matrix of law and fact can be re-agitated with respect to the impugned order/decree. There is no quarrel that Section 34 envisages only limited grounds of challenge to an award; however, we see no reason why that alone should take out an application under section 34 outside the ambit of an appeal especially when even a power of revisions is treated as an exercise of appellate jurisdiction by this court and the Privy Council." 131. While considering the above observations, made in Snehadeep Structures (P.) Ltd. (supra), it needs to be noted that an appeal is creature of statute. An appeal can be restrictive in nature or it may be, if the Legislature so desires, absolute. For instance, though there is an appeal provided against an award of a Motor Accident Claims Tribunal, the ground of interference, in the case of an appeal, preferred by an insurance company, is restricted as compared to an appeal, which may be preferred by a claimant or by an owner of a vehicle. 132. In no way, therefore, the decision, in Snehadeep Structures (P.) Ltd. (supra), can be read to mean that even when the Special Court is wholly justified in either granting bail or refusing to grant bail, the High Court can, in exercise of its appellate jurisdiction under section 21 (4), pass an order contrary to what the Special Court has passed. 133. 133. Because of the fact that we find that even when a court, other than Special Court, considers the question of bail of a person, accused of an offence under the UA(P) Act, the restrictive provisions of the proviso to section 43D(5) would apply and that even the High Court cannot ignore the restrictions, which have been imposed on the power to grant bail by the proviso to section 43D(5), we do not find that there is any unreasonable classification, more particularly, when the constitutionality or the validity of none of the provisions of the UA(P) Act or the NIAAct is under challenge in the present appeals. Reference, therefore, made by Mr. Goswami to the cases ofKedar Singh v. State of Bihar, AIR 1962 SC 955 , M. Rathinaswami v. State of Tamilnadu, (2009) 5 SCC 625 and Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , have no application at all. 134. Mr. Goswami, learned senior counsel, also refers to the case of People's Union For Civil Liberties and Another v. Union of India, (2004) 9 SCC 580 , for the purpose of impressing upon this court, that the Supreme Court has held, in People's Union For Civil Liberties (supra), that the restrictions, contained in section 49(6) of the POTA, would not disempower a Special Court from granting bail even before expiry of a period of one year from the date of detention of the accused and that, upon hearing Public Prosecutor, an accused can be released on bail without applying the rigor of section 49(7) of the POTA, which had prescribed a period of one year from the date of detention for application of sub-section (6) of section 47. 135. While considering the case of People's Union For Civil Liberties (supra), it needs to be noted that some Courts had interpreted the proviso to section 49(7) to mean that in order to enable a Special Court to grant bail under section 49(6) of the POTA, the detention of the accused must have been for a period of one year. For such restrictive interpretation, these courts had applied the proviso to section 49(7), which read as under: "Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) of this section shall apply." 136. For such restrictive interpretation, these courts had applied the proviso to section 49(7), which read as under: "Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) of this section shall apply." 136. Interpreting the proviso to section 49(7), the Supreme Court, in People's Union For Civil Liberties (supra), pointed out that it was an accidental omission or mistake, in making the legislation, when the word, 'not', after the word, 'shall', before the word 'apply', had not been included meaning thereby that the proviso to section 49(7) did not prevent an accused from approaching the Special Court for bail even if his period of detention was less than one year or if the period of detention of one year had not expired. This becomes more than abundantly clear from the observations, appearing in this regard, at paragraph 70, in People's Union For Civil Liberties (supra), which read as under: "70. Proviso to section 49(7) provides that the condition enumerated in sub-section (6) will apply after the expiry of one year, There appears to be an accidental omission or mistake of not including the word, 'not' after the word 'shall' and before the word 'apply'. Unless such a word is included the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of proviso to section 49(7) is that an accused can resort to ordinary bail procedure under the Code after the period of one year. At the same time the proviso does not prevent such an accused to approach the court for bail in accordance with the provisions of POTA under sections 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account the complexities of terrorism-related offences and intention of the Parliament in enacting a special Law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of section 4.9." 137. In the present case, there is no parity between what had been done by adding the proviso to section 49(7) of the POTA and the proviso to section 43D(5). We uphold the validity of section 4.9." 137. In the present case, there is no parity between what had been done by adding the proviso to section 49(7) of the POTA and the proviso to section 43D(5). We, therefore, fail to see as to how the case of People's Union For Civil Liberties (supra) can entitle the present appellant to seek bail if his case is, otherwise, covered by the proviso to section 43D(5). 138. What crystallizes from the above discussion is that the restrictive provisions, embodied in section 43D(5), would apply to all situations, both in original application for bail and also in the appellate consideration of the bail orders. When a special statute commences with a non-obstante clause overriding the provisions of the Code, particularly, the provisions with regard to bail, then, it is the special statute, which would prevail upon the Code. 139. Situated thus, it becomes clear that the restrictions, imposed on the power to grant bail by the proviso to section 43D(5), cannot be ignored by High Court even when the High Court considers an application for bail, on the original side, by taking recourse to its special power under section 439 of the Code. 140. From the discussions held above, it can be clearly seen that it is immaterial whether the High Court is considering a question of bail, in exercise of its original jurisdiction, under section 439 of the Code or in exercise of its appellate jurisdiction, under section 21(4) of the NIAAct, so far as the High Court's power to grant bail is concerned inasmuch as restrictions, on the grant of bail, as embodied in the proviso to section 43D(5), would apply, with equal vigor, to both the situations, namely, when the High Court considers an application for bail, in exercise of its original jurisdiction, under section 439 of the Code, or when it considers an application for bail, in exercise of its appellate jurisdiction, under section 21(4) of the NIAAct. 141. Once it is accepted, as one must accept, that the appellate court cannot exercise power to do a thing, which the original court was not empowered to do, then, the rigor, which applies to the original court, would apply, with equal force, to the appellate court too. An appellate court cannot pass an order, which the original court could not have passed: 142. An appellate court cannot pass an order, which the original court could not have passed: 142. Hence, while considering the correctness of rejection of bail by a Special Court under the NIAAct if the High Court finds that the order was correct, then, the High Court would have no power to overturn the order of the Special Court. Even when a High Court considers an application for bail under section 439 of the Code, it cannot grant bail to a person, covered by the proviso to section 43D(5). Thus, if we may reiterate, there is no discrimination, when section 439 of the Code is not resorted to by the High Court, while considering an appeal under section 21(4), particularly, when no prejudice is caused to an accused whether the application for bail is considered under section 439 or in exercise of appellate jurisdiction under section 21(4). In either case, the restrictive provisions, embodied in the special statute, and in the present case, the restrictive provisions embodied in the proviso to section 43D(5), would remain applicable to both the class of cases or situations. 113. We must remember that our subject-matter is the offence and not the agency investigating the offence. If the offence is under the UA(P) Act, then, the proviso to section 43D(5) would apply, no matter whether the investigation is carried out by the NIA or investigation is carried out by ordinary police. 144. Most importantly, the language, employed in section 43D(5), makes it quite clear that the proviso applies to a situation, where a person, accused of an offence under Chapters IV and VI of the UA(P) Act, is required to be released on bail or on his own bond. Hence, even while considering his application for bail, under its special power under section 439 of the Code, the High Court cannot ignore the restrictive provisions embodied in the proviso to section 43D(5). Similarly, while exercising its appellate jurisdiction under section 21(4), the High Court would not be able to release such an accused, on bail, if his case is found to be covered by the proviso to section 43D(5). 144A. Similarly, while exercising its appellate jurisdiction under section 21(4), the High Court would not be able to release such an accused, on bail, if his case is found to be covered by the proviso to section 43D(5). 144A. Reverting to the liberty, which has been granted by the Supreme Court to the appellant to apply afresh for bail 'if so advised' even though the Supreme Court had declined to interfere with the High Court's order refusing to grant bail to the appellant, it is imperative to have a clear understanding of the nature of the orders passed by the High Court in exercise of its appellate jurisdiction under section 21(4) of the NIAAct. 145. Admittedly, section 21(4) of the NIAAct provides that an order of the Special Court, granting or refusing bail, is an appeallable order. The NIAAct, it must be very clearly understood, has not vested, in the High Court, the power to grant bail as a court of first instance. The question of granting or refusing bail would, in the High Court, arise, in such a case, only when an appeal is brought to the High Court against an order passed by the Special Court refusing or granting bail. At the same time, if one examines the power of the High Court under section 439, Cr.PC, an accused can, (though not ordinarily), approach the High Court seeking bail, under section 439, Cr.PC, without even moving the trial court for bail. An appeal, if provided by a statute, is a continuation of a proceeding to a higher forum. The provisions for appeal do not imply conferring of independent jurisdiction on the High Court; rather, the appellate power confers jurisdiction on the High Court to examine legality, correctness or propriety of the order, which may be challenged, but the ambit of the power remains co-extensive with the power of the trial court and, in the present case, the Special Court constituted under section 21(4) of the NLA Act. 146. Thus, the difference in jurisdiction between a trial court and appellate court lies in the power of the later to sit, as an appellate court, over the judgment and order, as the case may be, of the trial court. Insofar as the law applicable to the subject-matter is concerned, there is no distinction between the trial court and an appellate court. Insofar as the law applicable to the subject-matter is concerned, there is no distinction between the trial court and an appellate court. For instance, if a trial court holds an accused person's case covered by the proviso to section 43D(5) and this finding is upheld by the High Court as the appellate court, the appellate court cannot hold that notwithstanding the fact that the finding of the trial court is correct, it would still allow the accused to go on bail. This apart, when an order is passed by the appellate court agreeing or disagreeing with the order of the trial court, the trial court's order is subsumed by the appellate court's order by virtue of the doctrine of merger. Explaining the doctrine of merger, though in the context of a writ appeal, this court observed, in the case of State of Arunachal Pradesh v. NEFA Udyog, 2005 (1) GLR 497, as under : "22. What emerges from the law laid down in Kunhayammed (supra) is that where an appeal is provided against an order passed by a court and the appeal is preferred, then, the decision of the lower court forum merges into the decision of the appellate court and it is the latter's decision, which subsists, remains operative and is capable of enforcement in the eyes of law. The position of the special leave applications made under article 136 is, somewhat, different. The jurisdiction conferred by article 136 of the Constitution is divisible into two stages. The first stage is up to the disposal of the prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of the doctrine of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of the doctrine of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against only when it exercises appellate jurisdiction, (i.e., after the leave to appeal is granted) and not while it exercises the discretionary jurisdiction on the question as to whether the petition for special leave to appeal shall be granted or non. The doctrine of merger, therefore, in such cases, comes into play if the special leave to appeal is granted and not when the question as to whether the leave would be granted or not is considered and decided. An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. What such an order implies is that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed. If the order refusing leave to appeal is a speaking order, i.e., when reasons are assigned for refusing the grant of leave, then, tire order has two implications. Firstly, the statement of law contained in such an order is a declaration of law by the Supreme Court within the meaning of article 141 of the Constitution. Secondly, other than the declaration of law. whatever is stated in the order are the findings recorded by the Supreme Court, which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country; but is does not mean that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. Once leave to appeal has been granted and the appellate jurisdiction of supreme Court has been involved, the order passed in appeal would attract the doctrine of merger. On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court, the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of rule (1) of order 47 of the CPC.", (emphasis added) 147. In the light of the observations, made in NEFA Udyog (supra), when one considers the liberty, which has been granted by the Supreme Court to the present appellant to apply afresh for bail to the trial court 'if so advised', it becomes abundantly clear that having earlier refused to interfere with the order passed by the High Court, when the Supreme Court permitted the present appellant to apply for bail afresh 'if so advised', it did not mean that the appellant would be entitled to reopen the case for bail; rather, the appellant as well as the trial court, would still remain bound by the order passed by the High Court as the appellate court, under section 21 of the NIA Act unless there is any change in the circumstance or any fresh fact becomes available on record. 148. Thus, the liberty granted by the Supreme Court to the appellant to 'make fresh application if so advised' would mean that the refusal to interfere with the High Court's order, in the Special Leave Petition, would not prohibit the appellant from seeking bail from the learned Special Court provided that the appellant can show change in the circumstances since after the appellant's earlier appeal was dismissed. 149. Unlike rejection of appeal, under section 437, Cr.PC, which is not an appealable order, the bail, granted or refused by a Special Court under the NIAAct, is an appealable order. In an appeal, the power of the appellate court is co-extensive with the power of the trial court meaning thereby that the High Court, as the appellate court, has no greater power than the trial court, (i.e., the Special Court) and, if the order of the trial court is affirmed by the appellate court, the order of the trial court merges into the order of the appellate court and it is the appellate court's order, which remains in force. Consequently, so long as the facts, settled in the appellate court's order, remain undisturbed and intact, the trial court cannot change or vary its order unless there is any change in the circumstances or any new facts come on record. Thus, there must be change in circumstances or emergence of fresh facts on record, since after passing of the appellate court's order, in order to enable the trial court, (i.e., the Special Court in the present case), to allow an application for bail by the present appellant. When, therefore, this court, in its earlier appellate order, clearly concluded that there was reasonable grounds to believe that the accusations against the accused-appellant were prima facie true attracting the proviso to section 43D(5) of the UA(P) Act, this conclusion cannot be disturbed by the learned Special Court unless fresh fact emerges or change, in the circumstances, could be shown by the appellant to have taken place. 150. We are unable to appreciate the argument of Mr. Goswami, learned senior counsel, that since the CBI has not named the present appellant, Jayanta Ghosh, in the charge sheet, which has been filed by the CBI, in another case, the appellant becomes entitled to bail in this appeal. The matter, investigated by the CBI, is in a context of role allegedly played by the appellant in another case. This court, at present, is not empowered to decide whether the fact, that the CBI has not filed any charge sheet against the present appellant, in another case, is or is not factually correct or in accordance with law relevant thereto. The decision of the present appeal will depend on the facts and law relevant to the present case and not what the CBI has done in another case. The mere fact, therefore, that the appellant has not been charge sheeted in another case, would not mean that the prima facie case, within the meaning of the proviso to section 43D(5), which was, otherwise, found to have been made out against the appellant, would stand effaced. The present appeal can be decided only on the basis of the materials pertinent to this case and, any extraneous matter, which is shown to have no bearing in the present appeal, cannot be taken into consideration. 151. The present appeal can be decided only on the basis of the materials pertinent to this case and, any extraneous matter, which is shown to have no bearing in the present appeal, cannot be taken into consideration. 151. In the light of the doctrine of merger, which we have discussed above, the order, passed by the learned trial court, would no longer survive independent of the appellate order. 152. In the case at hand, the High Court earlier upheld the order passed by the learned Special Court refusing to grant bail to the present appellant and, hence, unless there is any change in the circumstances or fresh facts are brought on record, it would not be permissible for the Special Court to grant bail on the basis of the same materials, which were available before it, at the time, when the earlier application for bail was made and disallowed by the learned Special Court as the trial court. 153. In short, thus, the restrictive provisions, embodied in section 43D(5), apply to the High Court, too, when the High Court exercises its appellate jurisdiction under section 21(4) of the NIA Act. Viewed from this angle, it is clear that the High Court has already examined once the appellant's case on merit and, having found his case to be covered by the proviso to section 43D(5), the High Court has dismissed the appellant's earlier appeal. Thereafter, the appellant has not been able to show any change in the circumstances nor any fresh material has surfaced on record, which would entitle him to go on bail. 154. Situated thus, we do not find any merit in this appeal, particularly, when we notice that even the Supreme Court refused to interfere with the earlier order of the High Court dismissing the appellant's appeal by observing, "Having heard the learned counsel and considering the nature of the charges, which have been brought against the petitioner and the other accused persons, we are not inclined to interfere with the order of the Pligh Court refusing to grant bail to the petitioner, but, at the same time, we are of the view that the trial should not be delayed any further", (emphasis added) 155. Because of what have been discussed and pointed out above, this appeal fails and the same shall accordingly stand dismissed. _____________