USMANBHAI DAWOODBHAI MEMON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal by special leave and the connected special leave petitions are directed against the judgment and order of the Gujarat High Court dated May 12, 1987 and the orders passed by various Designated Courts in the State constituted under S. 9(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, mainly raise two questions of substantial importance. First of these is as to the jurisdiction and power of the High Court to grant bail under S. 439 of the Code of Criminal Procedure, 1973 or by recourse to its inherent powers under S.482 to a person held in custody accused of an offence under Ss. 3 and 4 of the Act, and secondly, as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such person in view of the limitations placed on such power under S. 20(8) of the Act.

(2.) By the judgment under appeal, the High Court has held that under the Act there is total exclusion of the jurisdiction of the High Courts and therefore it cannot entertain an application for grant of bail under S. 439 of the Code. In other cases, the persons under detention have applied for grant of special leave under Art. 136 of the Constitution against the orders passed by various Designated Courts in the State refusing to grant bail on the ground that the power of a Designated Court to grant bail is circumscribed by the limitations prescribed by S. 20(8) of the Act i.e. due to the non-fulfilment of the conditions laid down therein.

(3.) As to the facts. It is enough for our purposes to set out the facts giving rise to Civil Appeal No. 313 of 1987. The prosecution case in brief is as follows. On the morning of March 10, 1987, there was an armed clash between the appellants who are members of a co-operative housing society, and the two sons of the original vendor Babubhai Mansara and Mohamed Ramzan Alabux and their companions took over possession of the disputed plot admeasuring 16,000 square yards resulting in multiple injuries to members of both the groups. The appellants as such members were in possession of the said plot, and as law abiding citizens had instituted Civil Suit No. 108 of 1987 in the Court of the Civil Judge, Junior Division, Narol, applied for and obtained temporary injunction and had gone with the bailiff to have the injunction order served on the opposite party. Their case is that they had entered into an agreement dated August 11, 1979 with the original vendor Babubhai Kansara for the purchase of the disputed plot. The price fixed was Rs. 35 per square yard and Rs. 60,000 were paid as earnest money. They as such members of the society had also paid from time to time by instalments a total amount of Rs. 3,50,000 which was equivalent to 80% of the total sale consideration and had been placed in possession of the land by the vendor by deed acknowledging the receipt of money and mentioning the delivery of possession. After the death of the vendor, his two sons Karam Ali and lqbal Ali disowned the transaction and started creating obstructions in the enjoyment of the land by the society, as a result of which on March 9, 1987 the society was constrained to institute the aforesaid suit and obtain a temporary injunction, and also a direction from the learned Civil Judge ordering the Chief Bailiff to execute the injunction order on the two sons of the original vendor. They had also intimated the police about the grant of injunction and sought help to prevent breach of peace but the police took no action despite the endorsement made by the Inspector of Police on their application directing P.S.I., Satellite Station to take appropriate action and prevent any untoward incident. As apprehended, the two sons of the original vendor Karam Ali and lqbal Ali put up armed resistance and in the scuffle both sides sustained injuries. At the time of the incident, the police arrived at the spot and apprehended the appellants. The appellants were straightway produced before the Designated Court within a period of 24 hours after their arrest without receiving the complaint of facts which constitute offences alleged to have been committed or a police report as required under S. 14(1). The appellants moved an application for bail but the Designated Court by its order dated March 24, 1987 rejected the same holding that there were no reasonable grounds for it to believe that the appellants were not guilty of an offence under S. 3 of the Act apart from various other offences under the Indian Penal Code, 1860.