MUSTHAFA ALI BUDDAN Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioners in these two petitions who are A. 23, A. 24 and A. 21 respectively are accused of offences punishable under Sections 489B, 489C, 120B IPC and Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (in short, the Act). A. 23 and A. 24 are in custody since 27.03.2012. A. 21 is in custody dated 24.05.2012 in this crime, on which date he was brought on prison transit warrant (PT Warrant) from District Jail, Moradabad, Uttar Pradesh State and produced before the lower Court. After investigation, the police filed charge sheet against A. 23 and A. 24 on 31.08.2012. Investigation of the case against A. 21 is pending. Previously, the lower Court granted bail to A.14. As against the said bail order, the State filed Criminal Appeal No. 966 of 2012 in this Court and Division Bench of this Court by order dated 26.09.2012 in Criminal Appeal Miscellaneous Petition No. 2120 of 2012 granted interim suspension of the said bail order.

(2.) Previously this Court by order dated 07.09.2012 granted bail to A. 12 in Crl. P. No. 6562 of 2012. As against the said order, the State filed petition for Special Leave to Appeal (Crl.) No. 7375 of 2012 in the Supreme Court of India and by order dated 19.09.2012 the Supreme Court stayed the said bail order till 24.09.2012 and thereafter by another order dated 24.09.2012 extended the stay while ordering notices to A. 12.

(3.) It is contended by the Special Public Prosecutor that in view of Section 21 of the Act and decision dated 23.12.2010 in Crl. A. No. 2228 of 2010 of the Kerala High Court in Yonus V. Deputy Superintendent of Police; this bail application should be heard by Division Bench of two Judges of this Court. The said contention of the Special Public Prosecutor is contrary to the provision of law and citation relied upon by him, both of which State that a Criminal Appeal filed under Section 21 of the Act including an appeal filed against bail order passed by the Special Court shall be heard by a Bench of two Judges of the High Court. This bail application is not an appeal against any order passed by the Special Court. These are independent applications filed by the respective petitioners invoking Section 439 Cr. P.C. There is no provision in the Act which prescribes that a bail application filed under Section 439 Cr. P.C. before the High Court shall be heard by a Bench of two Judges of this Court. Though Section 21(4) of the Act provides for filing an appeal against an order of the Special Court 'granting or refusing' bail, the said provision contains non-abstante clause making it an exception to Sub-Section (3) of 378 Cr. P.C. and not making it an exception to Section 439 Cr. P.C. Non-abstante clause in Section 21(3) of the Act is limited to Section 378(3) Cr. P.C. only and does not extend to Section 439 Cr. P.C. also.