JUDGMENT AND ORDER : Ujjal Bhuyan, J. 1. The two appeals are before us on a reference made by the Division Bench to examine and decide the following two questions of law:- "(i) Whether a person accused of an offence punishable under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 and is in detention for the same would not be entitled to a consideration for bail under section 43D (5) of the said Act once charge is framed against the accused for such offence? (ii) Whether the view taken by a Division Bench of this High Court in Y. Brajabidhu Singh that once charge is framed against an accused for an offence punishable under Chapters IV and VI of the Unlawful Activities (Prevention) Act, 1967 and unless the same is challenged and set-aside by a superior court, he would not be entitled to bail in view of the proviso to sub-section 5 of section 43D of the said Act lays down the correct proposition of law?" 2. The referral order dated 15.07.2016 has succinctly placed the context in which the reference has been made and, therefore, it would be apposite to examine the referral order in its entirety, which is extracted hereunder:- "The appellants are being prosecuted for offences under sections 148/302/149/436 & 506 of the Indian Penal Code read with sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (in short 'Act of 1967'). Trial of appellants is pending in the Special Court constituted under the provisions of National Investigation Agency Act, 2008 (in short "Act of 2008"). According to section 16(3) of the Act of 2008, the Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. The Special Court therefore, framed the aforesaid charges against the appellants by exercising powers under section 228 of the Code of Criminal Procedure, 1973. 2. It is reported that trial has progressed substantially and number of prosecution witnesses have been examined. 3. The Special Court therefore, framed the aforesaid charges against the appellants by exercising powers under section 228 of the Code of Criminal Procedure, 1973. 2. It is reported that trial has progressed substantially and number of prosecution witnesses have been examined. 3. The appellants, who are Forest Officers of the State Government and were posted at Manas National Park, applied for bail, but the Special Court, relying upon the judgment dated 19.06.2014 passed by a Division Bench of this Court in Criminal Appeal No. 117/2014 (Y. Brajabidhu Singh vs. National Investigation Agency), has rejected their applications. Aggrieved, the appellants have filed the present appeals. 4. Section 43D (5) of the Act of 1967 deals with releasing of accused in custody on bail. It reads as under:- "Notwithstanding anything contained in the Code, no persons 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." 5. In the aforesaid case of Y. Brajabidhu Singh (supra), the Division Bench of this Court referring to Section 43D (5) of the Act of 1967 has held that once the charge is framed against an accused for an offence punishable under Chapter IV and VI of the Act of 1967 and unless the same is challenged and set aside by the superior court, there can be no scope during the trial to hold that accusation against the accused is not prima facie true. Meaning thereby that till charge framed for an offence as mentioned above is not set aside, there shall be presumption that there are reasonable grounds for believing that the accusation against the accused is prima facie true and he will not be entitled for bail in view of proviso to sub-section 5 of section 43D. 6. Meaning thereby that till charge framed for an offence as mentioned above is not set aside, there shall be presumption that there are reasonable grounds for believing that the accusation against the accused is prima facie true and he will not be entitled for bail in view of proviso to sub-section 5 of section 43D. 6. It is to be noted that charge is framed by the Special Court under section 228 of the Code of Criminal Procedure, when the Court is of the opinion that there is ground for presuming that the accused has committed an offence. and section 43D of the Act of 1967, nowhere mandates that once the charge is framed against the accused, he shall not be entitled for bail or Court shall presume that he has committed the offence. Not only this, the Act of 1967 being a Penal Statute, its provisions are to be read strictly. 7. We are, therefore, of the considered view that the law laid down by the Division Bench in the case of Y Brajabidhu Singh (supra) deserves to be examined by a larger Bench. We, accordingly, direct that the matter be placed before the larger Bench for decision on the following questions of law:- ......." 3. Before examining the correctness of the view taken by the Division Bench in Y. Brajabidhu Singh vs. National Investigation Agency (Crl. Appeal No. 117/2014), as referred to us, relevant legal provisions may be adverted to. 4. The National Investigation Agency Act, 2008 (NIA Act) has been enacted by the Parliament to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto. 5. Section 3 of the NIA Act provides for constitution of a special agency to be called the National Investigation Agency (NIA) for investigation and prosecution of offences under the Acts specified in the schedule. The schedule appended to the NIA Act includes the Unlawful Activities (Prevention) Act, 1967. As per section 11, Special Courts are to be constituted by the Central Govt. for trial of scheduled offences. The schedule appended to the NIA Act includes the Unlawful Activities (Prevention) Act, 1967. As per section 11, Special Courts are to be constituted by the Central Govt. for trial of scheduled offences. The Special Court is to be presided over by a Judge of the rank of Sessions Judge/Addl. Sessions Judge to be appoint by the Central Govt. on the recommendation of the Chief Justice of the High Court within whose jurisdiction the Special Court is situated. Section 21 deals with appeals. An appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court, both on facts and on law, to be heard by a Bench of two Judges of the High Court. As per sub-section (4) of Section 21 of the NIA Act, notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (Cr.PC), an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. 6. This is how rejection of the prayer for bail of the appellants by the Special Court are being impugned in the appeals before the Division Bench, out of which this reference arises. 7. The Unlawful Activities (Prevention) Act, 1967 (briefly 'the ULAP Act' hereafter) was initially enacted by the Parliament for more effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith. However, by a subsequent amendment in the year 2004, the objective of the Act was enlarged to deal with terrorist activities which poses grave threat to the country and the citizens. Chapter IV of the ULAP Act deals with punishment for terrorist activities whereas, Chapter VI thereof deals with terrorist organisations. Chapter VII of the ULAP Act contains miscellaneous provisions. Section 43D, which is included in Chapter VII, mentions about modified application of certain provisions of the Cr.PC. Sub-section (5) of section 43D is relevant. Though this provision has been quoted in the referral order, considering that this provision is central to the deliberation, the same is extracted once again. Chapter VII of the ULAP Act contains miscellaneous provisions. Section 43D, which is included in Chapter VII, mentions about modified application of certain provisions of the Cr.PC. Sub-section (5) of section 43D is relevant. Though this provision has been quoted in the referral order, considering that this provision is central to the deliberation, the same is extracted once again. Section 43D (5) reads as under:- "(5) 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." 8. Before proceeding further, it will be useful to first notice and then attempt an examination of the key expressions finding place in section 43D (5). The provision starts with the word 'notwithstanding'. The provision says that notwithstanding anything contained in the Cr.PC, an accused who is in custody with accusation of committing an offence punishable under Chapters IV and VI of the ULAP Act shall not be released on bail without hearing the Public Prosecutor and without perusal of the case diary or the report made under section 173 of the Cr.PC where after the Judge shall form an opinion that there are reasonable grounds for believing that the accusation against the accused is prima-facie true. From a dissection of this provision, we find that there are three pre-conditions which must be fulfilled before enlarging a person accused of committing an offence under Chapters IV and VI of the ULAP Act on bail. As per the first requirement, on an application for bail, the Public Prosecutor must be given an opportunity of being heard. From a dissection of this provision, we find that there are three pre-conditions which must be fulfilled before enlarging a person accused of committing an offence under Chapters IV and VI of the ULAP Act on bail. As per the first requirement, on an application for bail, the Public Prosecutor must be given an opportunity of being heard. Second requirement is perusal of the case diary or the report made under section 173 Cr.PC by the Judge and the third requirement is that upon perusal of the case diary or the report under section 173 Cr.PC, the Judge must form an opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Therefore, the second key expression is "reasonable grounds" and the third key expression is "prima facie true." 9. In Y. Brajabidhu Singh (supra), a Division Bench of this Court, as an appellate forum, under section 21(4) of the NIA Act was considering the legality and validity of the order passed by the Special Judge rejecting the application of the accused for bail. That was a case where charges were framed against the accused under sections 120B and 121A of IPC read with sections 17, 18, 20 and 21 of the ULAP Act and the trial had commenced. During the pendency of the trial, the accused moved for bail, which was rejected by the Special Judge which led to filing of appeal. The Division Bench examined the provisions of sections 227 and 228 Cr.PC on the one hand and section 43D (5) of the ULAP Act on the other hand and took the view that framing of charge under section 228 Cr.PC clearly indicates existence of a prima facie case for trial and proceeded to hold that unless the charge framed against the accused is challenged and set aside, there can be no scope during the trial to hold that the accusation against the accused is not prima facie true. Relevant portion of the order passed by the Division Bench in Y. Brajabidhu Singh (supra) is extracted hereunder: - "(10) .......................... The basis for satisfaction regarding existence of a prima-facie true case is the evidence/materials revealed by the case diary or the report submitted under Section 173 Cr.PC. Such finding is not dependent on the evidence, rendered during the trial. Relevant portion of the order passed by the Division Bench in Y. Brajabidhu Singh (supra) is extracted hereunder: - "(10) .......................... The basis for satisfaction regarding existence of a prima-facie true case is the evidence/materials revealed by the case diary or the report submitted under Section 173 Cr.PC. Such finding is not dependent on the evidence, rendered during the trial. So for disposing an application for bail, the evidence collected by the Investigating Officer, during the investigation and the report submitted under Section 173 Cr.PC are to be considered. As provided by Sections 227 and 228 Cr.PC for framing charge, the evidence and such other materials, collected by the Investigating Officer are to be considered. In view of Section 228 Cr.PC, charge can be framed in the event of existence of ground for presuming that the accused has committed the offence. (11) A criminal court after framing the charge, on the basis of the incriminating evidence, collected by the investigating agency, can't review/modify its order. The only option is to proceed with the trial and pass necessary order at the end of the trial. However, the aggrieved party may challenge the correctness of the charge, before the appropriate forum, by filing appropriate application. In the case at hand, though some of the witnesses have been examined, there are other witnesses, who are yet to be examined. Hence, it can't be held, at this stage, that the charges are unfounded and liable to be set aside. In view of the said statutory provisions, the framing of the charge clearly indicates existence of a prima-facie case for trial." 10. In other words, what the Division Bench has held is that once charge is framed against an accused for offence punishable under Chapters IV & VI of the ULAP Act and until and unless the same is set aside by a superior court on challenge being made, there can be no scope during the trial to hold that the accusation against the accused is not prima facie true, meaning thereby that till the charge framed is set aside, there shall be presumption that there are reasonable grounds for believing that the accusation against such person is prima facie true and consequently, he would not be entitled to bail in view of the proviso to sub-section (5) of section 43D of the ULAP Act. 11. 11. In this reference, we are called upon to examine the correctness of this view. 12. At this stage, reference may be made to sections 227 and 228 Cr.PC. Having regard to the interplay of the two provisions, section 228 cannot be read and examined dehors section 227. For ready reference sections 227 and 228 Cr.PC are extracted hereunder:- "227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which:- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 13. Going through the provisions of section 227 Cr.PC, it is seen that after consideration of the case record and the related documents submitted and after hearing submissions on behalf of the accused and the prosecution, if the Judge considers that there is no sufficient ground for proceeding against an accused, he shall discharge the accused and record his reasons for doing so. Discharge of an accused is a final order. Discharge of an accused is a final order. It denotes finality in the sense that upon consideration of the case record and relevant documents and after hearing the parties, if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall be discharged and reasons of such discharge shall be recorded. An order passed under section 227 would mean termination of the criminal proceeding against the accused before commencement of trial on the Judge arriving at the conclusion that there is no sufficient ground for proceeding against the accused. However, such an order of discharge must be supported by reasons. 14. On the other hand, an analysis of section 228 Cr.PC would go to show that if after consideration of the case record and after hearing the parties, the Judge forms an opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge in writing against the accused, if the charge is exclusively triable by the Court of Session. If the offence is not exclusively triable by a Court of Session, the Judge may frame a charge against the accused and pass an order transferring the case for trial to the concerned Magistrate, whether the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Magistrate to whom the case is transferred where after the concerned Magistrate shall try the offence. Thus it is seen that the condition precedent for framing of charge is formation of opinion by the Judge that there is ground for presuming that the accused has committed an offence. 15. As per Black's Law Dictionary, 6th Edition, the word 'presume' has been defined to mean to assume beforehand whereas, the word 'presumption' has been defined to mean an inference in favour of a particular fact; a presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action; a presumption is not evidence. Therefore, going by the dictionary meaning, the word 'presuming', as appearing in section 228 Cr.PC, would mean drawing of an inference upon consideration of the case record and hearing the parties that the accused has committed the offence alleged. 16. Therefore, going by the dictionary meaning, the word 'presuming', as appearing in section 228 Cr.PC, would mean drawing of an inference upon consideration of the case record and hearing the parties that the accused has committed the offence alleged. 16. In State of Bihar vs. Ramesh Singh, reported in (1977) 4 SCC 39 , the Supreme Court examined the distinction between sections 227 and 228 of Cr.PC. The Supreme Court observed that reading the two provisions together in juxtaposition, it would be clear that at the initial stage of the trial, the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged; nor is any weight to be attached to the probable defence of the accused. The standard of test which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under sections 227 or 228 of the Cr.PC. At that stage, Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial in all eventualities would end in his conviction. Distinguishing the standard of test at the threshold of the trial and at the conclusion of the trial, the Supreme Court observed that strong suspicion against the accused cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed the offence as alleged, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The distinction between the two stages was highlighted by the Supreme Court by way of an illustration. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. The distinction between the two stages was highlighted by the Supreme Court by way of an illustration. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228 Cr.PC, then in such a situation, ordinarily and generally, the order which will have to be made, will be one under section 228 Cr.PC and not under section 227 Cr.PC. 17. Elaborating on this aspect, the Supreme Court in Stree Atyachar Virodhi Parishad vs. Dilip Nathumal, reported in (1989) 1 SCC 715 , held that at the stage of passing an order under section 227 or 228 Cr.PC, all that the Court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. If the answer is yes, then charge has to be framed under section 228 Cr.PC, but if the answer is no, then an order of discharge has to be passed under section 227 Cr.PC. But it will all depend upon the facts of each case and it is difficult to lay down a rule of universal application. 18. In Amit Kapoor vs. Ramesh Chandar, reported in (2012) 9 SCC 460 , the Supreme Court considered both the provisions of section 227 and section 228 Cr.PC and held that under both these provisions, the Court is required to consider the record of the case and documents submitted therewith, and after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exist, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. Satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. This presumption is not a presumption of law as such. Satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than prima facie case. Delineating the fine distinction between language of sections 227and 228 Cr.PC, it was held that section 227 Cr.PC is an expression of a definite opinion and judgment of the Court while section 228 Cr.PC is tentative. At the initial stage of framing of a charge, the Court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. 19. The word 'presuming' as appearing in section 228 Cr.PC again received the attention of the Supreme Court in Vinay Tyagi vs. Irshad Ali @ Deepak, reported in (2013) 5 SCC 762 . After extensive deliberation, the Supreme Court concluded that the word 'presuming' as appearing in section 228 Cr.PC is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution's record, at that stage, has to be examined on the plea of demur. Presumption is of a very weak and mild nature. It would cover the cases where some lacuna has been left out and is capable of being supplied and proved during the course of the trial 20. Having discussed the above, we may now proceed to examine section 43D(5) of the ULAP Act. Basic requirements of section 43D(5) of the ULAP Act have already been noticed above. A person arrested on the accusation of committing an offence under Chapters IV and VI of the ULAP Act shall not be released on bail unless the Public Prosecutor has been given an opportunity of being heard and upon perusal of the case diary or the report made under section 173 Cr.PC, Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. 21. In Jayanta Kumar Ghosh vs. National Investigation Agency, reported in 2010 (4) GLT 1, a Division Bench of this Court had the occasion to analyse the provisions contained in section 43D(5) of the ULAP Act. 21. In Jayanta Kumar Ghosh vs. National Investigation Agency, reported in 2010 (4) GLT 1, a Division Bench of this Court had the occasion to analyse the provisions contained in section 43D(5) of the ULAP Act. While doing so, the expression 'prima facie true' as appearing in the said section was gone into in some detail. After referring to various dictionary meanings of the expression prima facie, the Division Bench held 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. Thus, it may be construed that prima facie case would mean whether inference drawn is a possible inference or not. Thereafter, the Division Bench went on to examine the word 'true', which has been used in conjunction with the expression prima facie. After referring to various dictionary meanings, it was held that 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. Though the Division Bench went on a detailed exposition of the expression 'prima facie true', without elaboration, it can safely be said that it would mean that the accusation against the accused person is a possibility which is inferable from the materials on record. 22. In the case of Chenna Boyanna Krishna Yadav vs. State of Maharastra, reported in (2007) 1 SCC 242 , the Supreme Court considered challenge to an order of the High Court rejecting the bail application of the appellant who was accused of committing offences under the Maharashtra Control of Organized Crimes Act, 1999. Section 21(4) of the aforesaid Act deals with prayer for bail, which is somewhat identical to the provisions contained in section 43D(5) of the ULAP Act. The expression 'reasonable grounds' appears in section 21(4) (b) of the Maharashtra Control of Organized Crimes Act, 1999, inasmuch as after hearing the Public Prosecutor, Court must be satisfied that there are 'reasonable grounds' for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The expression 'reasonable grounds' appears in section 21(4) (b) of the Maharashtra Control of Organized Crimes Act, 1999, inasmuch as after hearing the Public Prosecutor, Court must be satisfied that there are 'reasonable grounds' for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is in this context that the Supreme Court examined the expression 'reasonable grounds' and held that the expression 'reasonable grounds' would mean something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. 23. In Union of India vs. Shiv Shanker Kesari, reported in (2007) 7 SCC 798 , the Supreme Court while construing section 37 (1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which also deals with provision for bail of a person accused of committing an offence under the said Act, explained the expression 'reasonable grounds' appearing therein to mean something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. In other words, the expression 'reasonable grounds' connote something more than prima facie grounds. 24. The said position was reiterated by the Supreme Court in Union of India vs. Ratan Mallik, reported in (2009) 2 SCC 624 , where also the expression 'reasonable grounds' appearing in section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 came up for consideration. 25. Finally a Division Bench of this Court in NIA vs. Redaul Hussain Khan, reported in 2010 (3) GLT 302, after examining various Apex Court judgments held that 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 alleged. 25. Finally a Division Bench of this Court in NIA vs. Redaul Hussain Khan, reported in 2010 (3) GLT 302, after examining various Apex Court judgments held that 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 alleged. In the context of section 43D(5) of the ULAP Act, the Division Bench held that if the Special Court on examination of the materials collected during investigation finds reasonable grounds to infer that the case which has been made out against the accused is not wholly improbable, it would be sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusation made against the accused is prima facie true. 26. Having noticed the operational fields of section 228 Cr.PC on the one hand and section 43D(5) of the ULAP Act on the other hand, what emerges from the above is that while scrutinising the materials on record, if there is a strong suspicion that the accused has committed the offence or there is strong suspicion about the culpability of the accused, that would be sufficient for the Court to frame charge against the accused under section 228 Cr.PC. However, while considering bail of a person arrested on an accusation of having committed an offence under Chapters IV and VI of the ULAP Act, the Court must not only form an opinion that the accusation against the accused is prima facie true, but such opinion has to be based on reasonable grounds, which has been explained to mean something more than prima facie grounds, contemplating substantial probable causes for believing that the accused is guilty of the accusation. Thus, the standard of scrutiny in both the fields are different. While it is strong suspicion at the stage of framing of charge, on the other hand, while considering bail under section 43D(5), it is something more than prima facie grounds for believing that accused is guilty of the alleged offences. In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under section 43D(5) is much higher than at the stage of framing of charge. 27. In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under section 43D(5) is much higher than at the stage of framing of charge. 27. Having said that, it has to be borne in mind that sub-section (5) of section 43D of the ULAP Act starts with the expression "notwithstanding anything contained in the Code", which means that the said provision starts with a non-obstante clause. A non-obstante clause is a legislative device, which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or in some other enactment. Such a device is employed to avoid operation and effect of all contrary provisions. It is equivalent to saying that in spite of the provisions of the Act mentioned in the non-obstante clause, the provisions indicated in the non-obstante clause will not be an impediment to the operation of the enactment. In other words, a non-obstante clause is used with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause. 28. In Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, reported in (1986) 4 SCC 447 , the Apex Court held as follow:- "67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in South India Corporation (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum & Another, AIR 1964 SC 207 at 215-[1964] 4 SCR 280. 68. See in this connection the observations of this Court in South India Corporation (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum & Another, AIR 1964 SC 207 at 215-[1964] 4 SCR 280. 68. It is well settled that the expression 'notwithstanding' is in contradistinction to the phrase 'subject to', the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. This will be clarified in the instant case by comparison of sub-section (1) of section 15 with sub-section (1) of section 15A. We are therefore unable to accept, with respect, the view expressed by the Full Bench of the Bombay High Court as relied on by the learned single judge in the judgment under appeal." 29. Having noticed the legal position as above, provisions of section 43D(5) of the ULAP Act may once again be examined. It starts with the expression "notwithstanding anything contained in the Code". In other words, it would mean notwithstanding the provisions of Cr.PC, section 43D(5) of the ULAP Act would have overriding effect. In the present context, it would mean two things. Firstly, it would mean notwithstanding the provision of section 228 Cr.PC, section 43D(5) of the ULAP Act would have overriding effect. Secondly, it would mean that section 43D(5) of the ULAP Act would be in addition to the provisions relating to bail contained in the Cr.PC such as section 437. If that be so, there can be no manner of doubt that operation of section 43D(5) of the ULAP Act is independent of section 228 Cr.PC and the latter provision cannot control operation of the former. The referral order is right when it points out that section 43D of the ULAP Act nowhere mandates that once charge is framed against the accused under section 228 Cr.PC, the Court shall presume that he has committed the offence and shall not be entitled to bail. It is trite that a penal provision has to be read and interpreted strictly. 30. We also have to keep in mind that we are considering prayer for bail at a stage post framing of charge. No doubt, section 43D (5) of the ULAP Act is a special provision, which has been introduced as part of the State's response to the menace of terrorism, which is affecting large parts of our country and that its conditions are extremely stringent. No doubt, section 43D (5) of the ULAP Act is a special provision, which has been introduced as part of the State's response to the menace of terrorism, which is affecting large parts of our country and that its conditions are extremely stringent. Here we have to bear in mind that by specifically mentioning the words "on a perusal of the case diary or the report made under section 173 of the code" in the proviso to section 43 D (5) of the ULAP Act, the legislature has prohibited consideration of any material beyond the case diary or the report made under section 173 Cr.PC for consideration of bail; the inevitable consequence being that any evidence led after framing of charge would remain outside the purview of consideration for the limited purpose of granting bail. But having said so, it cannot also be overlooked that grant of bail is a discretionary power conferred upon the Court. Though extremely stringent conditions are imposed while considering bail under section 43D(5) of the ULAP Act, it is one thing to say that discretion is to be exercised by the Court with circumspection having regard to the stringent nature and overall object of the provision, but it would be an altogether different proposition to say that Court would have no discretion at all to consider bail once charge is framed. Having regard to the bail jurisdiction of our country which has evolved over the years, there cannot be formulation of a legal proposition which says that once charge is framed, there can be no bail. Bail jurisprudence stands on a different footing altogether and as a legal principle, the Court cannot be denuded of the discretion to consider bail at any stage of the proceeding. It is not unusual to find that even after conviction, at the appellate stage, the Appellate Court is not denuded of the power to consider bail of the accused appellant even though presumption of innocence of the accused appellant would no longer be available at the appellate stage. In Redaul Hussain Khan (supra), a Division Bench of this Court observed that no legal formula of universal application can be evolved as to when a person accused of an offence be allowed to go on bail. It would be inappropriate to try to evolve an universal formula for application of discretionary jurisdiction of the Court in the matter of bail. It would be inappropriate to try to evolve an universal formula for application of discretionary jurisdiction of the Court in the matter of bail. In Gurcharan Singh vs. State (Delhi Administration), reported in (1978) 1 SCC 118 , the Supreme Court held that there cannot be an inexorable formula in the matter of granting bail. Facts and circumstances of each case will govern the exercise of judicial discretion while considering bail. 31. In view of the discussions made above, we are of the considered opinion that the view taken by the Division Bench in Y. Brajabidhu Singh (supra) that once charge is framed against an accused for an offence punishable under Chapters IV and VI of the ULAP Act and unless the same is challenged and set aside by a superior court, the accused would not be entitled to bail in view of the proviso to sub-section (5) of section 43D of the ULAP Act does not lay down the correct law. The view taken in Y. Brajabidhu Singh (supra) is thus overruled. As a consequence, question No. 1 is answered in the negative by holding that a person, accused of an offence punishable under Chapters IV and VI of the ULAP Act and is under detention for the same would be entitled to a consideration for bail under section 43D (5) of the said Act irrespective of whether charge is framed against the accused or not, subject of course to the limitations imposed by the said provision and having regard to the object thereof. In so far question No. 2 is concerned, it has already been answered above by holding that Y. Brajabidhu Singh (supra) does not lay down the correct law. 32. Reference is answered accordingly. 33. Registry to place the appeals before the Division Bench for adjudication on merit.