Bombay High Court
Surendra Pundlik Gadling vs State Of Mah., Thr. P.S. Etapalli ... on 11 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
ba109.2020 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO. 109/2020
Surendra P. Gadling
...VERSUS...
State of Maharashtra
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri S.P. Dharmadhikari, Sr. Adv a/b Shri N.B. Rathod, Adv for applicant
Shri V.A. Thakare, APP for the non-applicant/State
CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
AUGUST 11, 2021
1] In view of Section 21(4) of the National
Investigation Agency Act, 2008 (for short "NIA Act"), the
papers of the present matter are placed before us in
pursuance of the order passed by the learned Single Judge
dated 04/08/2021.
2] For adjudication of the issue which we are called
upon to decide, it is necessary to state the relevant
background facts which are as under :-
F.I.R. No. 35/2016 came to be registered against
the applicant for the offences punishable under Sections 307,
341, 342, 435, 323, 504, 506, 143, 147, 148, 149 & 120-B of
the Indian Penal Code, Section 5/28 of the Arms Act, Section
135 of the Maharashtra Police Act & Sections 16, 18, 20 & 23
of the Unlawful Activities (Prevention) Act, 1967 (for short
"the Act of 1967") with Police Station Aheri. It is undisputed
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fact that the investigation for the offences alleged against the
applicant was carried out by the State Investigation Agency
and not by the National Investigation Agency.
3] The applicant initially preferred regular bail
application under Section 439 of the Code of Criminal
Procedure before the learned Sessions Judge, Gadchiroli
which came to be rejected by the learned Sessions Judge on
23/09/2019. The applicant has therefore filed the present
application seeking his release on bail under Section 439 of
the Code of Criminal Procedure.
4] The issue which we are called upon to decide is
as to whether the Division Bench or Single Judge of this Court
can decide the bail application of the applicant in the light of
the Bombay High Court Appellate Side Rules and NIA Act.
5] Learned Senior Advocate appearing for the
applicant submitted that in view of Section 21(4) of the said
Act, the present application will have to be treated as appeal
and only the Division Bench of this Court has the power to
decide the bail application in the light of the judgments of the
Hon'ble Supreme Court in the case of State of Andhra Pradesh
vs. Mohd. Hussain reported in (2014) 1 SCC 258, and in the
case of Bikramjit Singh vs. State of Punjab reported in (2020)
10 SCC 616. He submitted that all the offences under the
UAPA Act, whether investigated by the National Investigation
Agency or by the Investigating Agencies of the State
Government, have to be tried exclusively by the Special Court
set up under Section 22 of the said Act.
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6] Per contra, learned APP invited our attention to
Section 13(1) of the said Act to submit that unless the
Scheduled offences are investigated by the National
Investigation Agency, the Special Court under the said Act will
not get jurisdiction to try the Scheduled offence. He invited
our attention to Sections 6 and 10 of the said Act. He
submitted that till the Central Government decides to transfer
the investigation to the National Investigation Agency, the
State Investigation Agencies have the power to investigate the
offences under Scheduled II of the said Act.
7] Learned Senior Advocate invited our attention
to the judgment of the Hon'ble Supreme Court in the case of
Bikramjit Singh (supra). The Hon'ble Supreme Court in para
no. 26 has observed as under :-
"26. ............This Scheme has been completely done
away with by the NIA Act, 2008 as all Scheduled
Offences i.e. all offences under the UAPA, whether
investigated by the National Investigation Agency or by
the investigating agencies of the State Government, are
to be tried exclusively by Special Courts set up under
that Act................"
(emphasis supplied)
8] Placing reliance on the above observations, he
submitted that the Sessions Court which has rejected the bail
application of the applicant needs to be treated as Special
Court under the provisions of Section 22 of the said Act.
Consequently, the present application filed under Section 439
of the Code of Criminal Procedure needs to be treated as
appeal under Section 21(4) of the said Act.
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9] At this stage, it is necessary to consider the
judgment of the Hon'ble Supreme Court in the case of Central
Bureau of Investigation vs. Prakashan C & Ors. in Criminal
Appeal No. 519/2017. The question involved before the
Hon'ble Supreme Court in the said case was whether the case
investigated by the CBI could be tried by the Special Court
constituted by the State of Kerala in terms of the notification
dated 30/05/2014 in respect of the offences in second
Schedule under Section 15(1)(a)(i) read with Sections 16(a)
and 19 of the Act of 1967. The Hon'ble Supreme Court after
considering the scheme of the Act laid down in para no. 9 as
under :-
"9. In view of above provisions, it is clear that every
scheduled offence covered by the NIA Act is not
investigated by the NIA. Decision in this regard is taken
by Central Government as per prescribed statutory
procedure. If investigation is by NIA, Special Court
under Section 11 tries the offence. If investigation is by
State agency, trial is by regular Court or Special Court
under Section 22. Though NIA Act is silent for cases
investigated by CBI, the notification issued by Kerala
State provides for such a situation."
10] We have carefully perused the judgment of the
Hon'ble Supreme Court in the case of Bikramjit Singh (supra)
relied upon by the applicant. The issue involved in the said
case was in relation to grant of default bail to the accused
who was charged with the offences under the provisions of
the Act of 1967. The accused therein was remanded by the
Sub-Divisional Judicial Magistrate after expiry of 90 days in
custody. The applicant therein applied for default bail under
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Section 167(2) of the Code of Criminal Procedure which was
rejected by the Sub-Divisional Judicial Magistrate. The said
order was challenged by way of revision before the Additional
Sessions Judge which was the Special Court set up under the
NIA Act. The revision was allowed by the Additional Sessions
Judge (Special Court under NIA Act). The High Court of
Punjab and Haryana by the order dated 30/10/2019 allowed
the petition of the accused. The accused therefore moved the
Hon'ble Supreme Court. The State of Punjab submitted before
the Hon'ble Supreme Court that nothing in the NIA Act would
affect the powers of the State Government to investigate and
prosecute the accused for any Scheduled Offences in view
Section 10 of the NIA Act. It was submitted that the entire
investigation was done only by the State Police and not by the
National Investigation Agency. Therefore, the Ilaqa Magistrate
had jurisdiction to extend time. In the context of the aforesaid
facts, the Hon'ble Supreme Court in para no. 26 observed that
all the offences under the UAPA, whether investigated by the
National Investigation Agency or by the Investigating
Agencies of the State Government are to be tried exclusively
by the Special Court set up under the said Act, which
amounts to the ratio of the said judgment.
11] In the facts of the case in Prakashan C (supra),
the question involved before the Hon'ble Supreme Court was
whether a person accused of commission of the offences
under second Schedule of the NIA Act can be tried before the
Court under Section 13(1) of the said Act if the investigation
was carried out by the Investigating Agency other than the
National Investigation Agency. The submissions made by both
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the parties were in relation to the jurisdiction of the Court
under Section 13(1) of the said Act as the investigation was
carried out by the agency other than the National
Investigation Agency. It is also a deliberate judicial decision
arrived at after hearing an argument on the said question.
12] In our view, the judgment delivered in the case
of Prakashan C (supra) is by two Judges of the Hon'ble
Supreme Court and the judgment by the Hon'ble Supreme
Court in the case of Bikramjit Singh (supra), being a
judgment delivered by Larger Bench of three Judges of the
Apex Court, we are bound by the decision in the case of
Bikramjit Singh (supra). We therefore hold that all Scheduled
Offences i.e. all offences under the UAPA, whether
investigated by the National Investigation Agency or by the
investigating agencies of the State Government, are to be
tried exclusively by Special Courts set up under that Act.
13] Having concluded on the point of applicability
of NIA Act, the question remains is as to whether an
application under Section 439 of the Code of Criminal
Procedure can be filed by the applicant when the applicant
has remedy of statutory appeal under Section 21(4) of NIA
act.
14] Section 21(5) of the NIA Act mandates appeal
under the said Section to be filed within 30 days from the
date of the judgment or order. Proviso to the said Section
enables the High Court to entertain the appeal after the
period of 30 days of sufficient cause being shown by the
appellant. The second proviso to the said Section bars appeal
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being entertained after period of 90 days. In the facts of the
present case, the learned Sessions Judge rejected the bail
application of the applicant on 23/09/2019. The applicant
has filed the present application on 31/03/2020. Therefore,
in the present proceedings, this Court cannot adjudicate about
the sufficient cause being shown by the applicant herein
unless the applicant, as a matter of fact, shown such sufficient
cause by instituting statutory appeal as contemplated by Sub-
Section (5) of Section 21 of the NIA Act. This Court may
consider entertaining the statutory appeal under Section
21(4) of the NIA Act if the conditions under Sub-Section (5)
of Section 21 are fulfilled and if it is permissible for this Court
under second proviso to Section 21(5) of the NIA Act. At this
stage, in view of Section 21(5) of the NIA Act, we cannot
treat the application under Section 439 of the Code of
Criminal Procedure as appeal under Section 21(4) of the NIA
Act.
15] The Hon'ble Supreme Court in the case of State
of Gujarat vs. Salimbhai Abdul Gaffar Shaikh reported in
2003 8 SCC 50 has held that power under Section 439 cannot
be exercised when there is specific provision in the statute for
filing appeal before the High Court against an order of
granting or refusing bail to the accused. The Hon'ble Supreme
Court in para no. 11 of the judgment has held as under:-
"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
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any kind of fetters on its powers and it can come to an
independent conclusion whether the accused deserves
to be released on bail on the merits of the case. The
considerations which are generally relevant in the
matter of cancellation of bail under sub-section (2) of
Section 439 of the Code will not come in the way of
the High Court in setting aside an order of the Special
Court granting bail. It is, therefore, evident that the
provisions of POTA are in clear contradistinction with
that of the Code of Criminal Procedure where no
appeal is provided against an order granting bail. The
appeal can lie only against an order of the Special
Court and unless there is an order of the Special Court
refusing bail, the accused will have no right to file an
appeal before the High Court praying for grant of bail
to them. Existence of an order of the Special Court is,
therefore, a sine qua non for approaching the High
Court."
16] Learned Senior Advocate has placed reliance
upon the judgment of the Hon'ble Supreme Court in the case
of State of Andhra Pradesh vs. Md. Hussain (supra). This
judgment refers the judgment in the case of Salimbhai Abdul
Gaffar Shaikh (supra) holding that the High Court under the
special statute could not be said to have both appellate and
original jurisdiction in respect of the same matter. The
Hon'ble Supreme Court observed as under:-
"23. It is material to note that the view taken in
Usmanbhai [Usmanbhai Dawoodbhai Memon v. State
of Gujarat, (1988) 2 SCC 271 : 1988 SCC (Cri) 318 :
AIR 1988 SC 922] was further confirmed by this Court
in State of Gujarat v. Salimbhai Abdulgaffar Shaikh
[(2003) 8 SCC 50 : 2003 SCC (Cri) 2006], to which
our attention was drawn by Mr. Luthra, the learned
Additional Solicitor General appearing for NIA. This
time the Court was concerned with similar provisions
of the Prevention of Terrorism Act, 2002 ("POTA", for
short). Section 34 of POTA is entirely identical to
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Section 21 of the NIA Act except that it did not contain
the second proviso to sub-section (5) of Section 21 of
the NIA Act (which has been quoted above), and which
proviso has no relevance in the present case. It was
specifically contended in that matter by the learned
counsel for the respondent that the power of the High
Court to grant bail under Section 439 Cr.PC had not
been taken away by POTA.
24. In para 13 of the judgment this Court confirmed
the view taken in Usmanbhai [Usmanbhai Dawoodbhai
Memon v. State of Gujarat, (1988) 2 SCC 271 : 1988
SCC (Cri) 318 : AIR 1988 SC 922] in the following
words: (Salimbhai Abdulgaffar Shaikh case [(2003) 8
SCC 50 : 2003 SCC (Cri) 2006], SCC p. 58)
"13. Section 20 of TADA contained an identical
provision which expressly excluded the applicability of
Section 438 of the Code but said nothing about Section
439 and a similar argument that the power of the High
Court to grant bail under the aforesaid provision
consequently remained intact was repelled in
Usmanbhai Dawoodbhai Menon v. State of Gujarat
[Usmanbhai Dawoodbhai Memon v. State of Gujarat,
(1988) 2 SCC 271 : 1988 SCC (Cri) 318 : AIR 1988 SC
922] . Having regard to the scheme of TADA, it was
held that there was complete exclusion of the
jurisdiction of the High Court to entertain a bail
application under Section 439 of the Code. This view
was reiterated in State of Punjab v. Kewal Singh [State
of Gujarat v. Salimbhai Abdulgaffar Shaikh, 1990 Supp
SCC 147 : 1990 SCC (Cri) 640] ."
25. In this judgment in State of Gujarat v. Salimbhai
Abdulgaffar Shaikh [(2003) 8 SCC 50 : 2003 SCC (Cri)
2006], the Court specifically rejected the plea based on
Section 439 of the Code by holding that the High Court
under the special statute could not be said to have both
appellate and original jurisdiction in respect of the
same matter. The Court observed in para 14 thereof as
follows: (Salimbhai Abdulgaffar Shaikh case [(2003) 8
SCC 50 : 2003 SCC (Cri) 2006] , SCC pp. 58-59)
"14. That apart, if the argument of the learned
counsel for the respondents is accepted, it would mean
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that a person whose bail under POTA has been rejected
by the Special Court will have two remedies and he can
avail any one of them at his sweet will. He may move a
bail application before the High Court under Section
439 CrPC in the original or concurrent jurisdiction
which may be heard by a Single Judge or may prefer
an appeal under sub-section (4) of Section 34 of POTA
which would be heard by a Bench of two Judges. To
interpret a statutory provision in such a manner that a
court can exercise both appellate and original
jurisdiction in respect of the same matter will lead to
an incongruous situation. The contention is therefore
fallacious."
26. Thus, the law on the issue in hand is very well
settled, and there are three previous judgments of this
Court already holding the field, and yet the same
challenge is being raised once again, though now in
respect to the NIA Act.
27. The order passed by this Court on 2-8-2013 in
State of A.P. v. Mohd. Hussain [State of A.P. v. Mohd.
Hussain, (2014) 1 SCC 706] is therefore clarified as
follows:
27.1. Firstly, an appeal from an order of the Special
Court under the NIA Act, refusing or granting bail shall
lie only to a Bench of two Judges of the High Court.
27.2. And, secondly as far as Prayer (b) of the petition
for clarification is concerned, it is made clear that
inasmuch as the applicant is being prosecuted for the
offences under the MCOC Act, 1999, as well as the
Unlawful Activities (Prevention) Act, 1967, such
offences are triable only by the Special Court, and
therefore application for bail in such matters will have
to be made before the Special Court under the NIA Act,
2008, and shall not lie before the High Court either
under Section 439 or under Section 482 of the Code.
The application for bail filed by the applicant in the
present case is not maintainable before the High
Court."
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17] We are therefore of the view that the Court
trying offences under second Schedule of the NIA Act being
the Special Court as contemplated by Section 22 of the NIA
Act, the person aggrieved by an order of refusing bail is
required to file appeal under Section 21(4) of the NIA Act
and the application under Section 439 of the Code of
Criminal Procedure is not maintainable before the High
Court.
18] The applicant can avail remedy of statutory
appeal under Section 21(4) of the NIA Act if permissible in
law and subject to limitation.
19] In view of the aforesaid, the criminal application
is disposed.
(JUDGE) (JUDGE)
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