Bombay High Court
Sudha Bharadwaj vs National Investigation Agency ... on 1 December, 2021
Bench: S.S. Shinde, N. J. Jamadar
.. 1 .. BA-2024-2021=ba-1458-2019+ J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.2024 OF 2021
Digitally
signed by
SHRADDHA Sudha Bharadwaj
SHRADDHA KAMLESH
KAMLESH TALEKAR Aged about 59 years,
TALEKAR Date:
2021.12.01 Currently incarcerated in
11:31:54
+0530 Byculla District Prison,
(U.T. No. 177), Clare Road,
Byculla, Mumbai
Otherwise residing at :
F4/216, South End Apartments,
Eros Garden Colony
Surajkund, Faridabad ...Applicant/Accused No.9
Vs.
1. National Investigation Agency
7th Floor, Cumballa Hill,
MTNL Telephone Exchange Building,
Peddar Road, Mumbai 400 026.
2. State of Maharashtra
Through Vishrambaug Police
Station ...Respondents
WITH
CRIMINAL APPLICATION NO.1458 OF 2019
WITH
INTERIM APPLICATION NO.376 OF 2020
IN
CRIMINAL APPLICATION NO.1458 OF 2019
1. Sudhir Prahlad Dhawale
Aged 50 years, Indian Inhabitant,
having address at Sarnath Tower, A-Wing,
7th Floor, Room No. 707, Buddha Nagar
Co-op. Housing Society, Nimonibaug,
Govandi, Mumbai.
2. Rona Jacob Wilson
Aged 48 years, Indian Inhabitant,
having address at G-1, DDA Flats,
Munirka, New Delhi-110067
Mrs. S.K.Talekar,PS 1/120
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3. Surendra Pundlik Gadling
Aged 51 years, Indian Inhabitant,
having address at Plot No. 79, Misal Lay
Out Vaishali Primary School, Samrat
Ashok Chowk, Post Jaripatka, Nagpur.
4. Dr. Shoma Kanti Sen
Aged 61 years, Indian Inhabitant,
Having address at S/5, 2nd Floor,
Ruturaj Apartment, Bharat Nagar,
Amravati Road, Nagpur-440033.
5. Maheash Sitaram Raut,
Aged 33 years, Indian Inhabitant,
having address at Plot No. 83,
Dhangavdi, Pimpal Road, Nagpur.
6. P. Varavara Rao,
Aged 80 years, Indian Inhabitant,
having address at 419, Himasai Heights,
Lane No. 6, Jawahar Nagar, Secunderabad
7. Vernon Stanislaus Gonsalves
Aged 62 years, Indian Inhabitant,
having address at C3, New Prem
Vasundhara, Mahakali Caves Road,
Andheri (East), Mumbai.
8. Arun Thomas Ferreira
Aged 46 years, Indian Inhabitant,
401, Sharon C.H.S. Annaji Sundar
Marg, Charai, Thane - 400 601.
All Applicants are at present in
Judicial Custody and lodged at
Yerwada Central Prison, Pune ....Applicants
Versus
1. The State of Maharashtra,
2. The ACP Swargate,
Pune City, Pune.
Mrs. S.K.Talekar,PS 2/120
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2A The Director General,
National Investigation Agency,
CGO Complex, Lodhi Road,
New Delhi. ...Respondents
****
Dr.Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Ms.Chandni
Chawla for applicant in BA/2024/2021.
Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya
Thakkar, Mr. Chintan Shah, Ms. Smita Thakur, Mr. Pranav
Thakur and Mr. Vishal Gautam for respondent- NIA in
APL/2024/2019.
Mr.Sudeep Pasbola a/w. Mr.Barun Kumar, Mr. Karl Rustomkhan
and Ms. Susan Abraham i/b Mr. R. Sathyanarayanan for
applicants in APL No.1458/2019 and IA/376/2020.
Mr.A.A. Kumbhakoni, Advocate General a/w. Smt. A.S. Pai, PP,
Mrs. S.D. Shinde, APP and Mr. Akshay Shinde, "B" Panel Counsel
for respondent-State.
Mr.Anil C. Singh, ASG a/w. Mr. Sandesh Patil, Mr. Aditya
Thakkar, Mr. Chintan Shah and Mr. Pranav Thakur for
respondent-NIA in APL/1458/2019.
****
CORAM : S.S. SHINDE &
N. J. JAMADAR, JJ.
RESERVED ON : 1st SEPTEMBER, 2021
PRONOUNCED ON : 1st DECEMBER, 2021
----------
JUDGMENT : (PER N.J. JAMADAR, J.)
1. These applications under section 482 of the Code of
Criminal Procedure, 1973 ('the Code') seek enlargement of the
applicants on bail under section 167(2) of the Code read with
Mrs. S.K.Talekar,PS 3/120
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section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967
(UAPA) in National Investigation Agency (NIA) Special Case No. 871
of 2020, arising out of frst information report, initially registered
with Vishrambaug Police Station, being frst information report
No.4 of 2018, on the ground that the learned Judge, who extended
the period for investigation under section 43-D(2) of UAPA and
took cognizance of the offences punishable under sections 120B,
121, 121(A), 124(A), 153A, 505(1)(b), 117, 23 of Indian Penal Code,
1860 ('the Penal Code') and sections 13, 16, 17, 18, 18-B, 20, 38,
39 and 40 of UAPA was not legally empowered to grant such
extension and take cognizance.
2. Since the factual backdrop is, by and large, similar and
common questions of law arise for consideration, both these
applications are determined by this common judgment and order.
3. The background facts leading to these applications can be
summarized as under:
CRIMINAL BAIL APPLICATION No. 2024 OF 2021:-
Tushar Ramesh Damgude lodged a report on 8th January,
2018 with Vishrambaug Police Station in connection with a
programme organized under the banner "Elgar Parishad" at
Mrs. S.K.Talekar,PS 4/120
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Shanivar Wada, Pune on 31st December, 2017 alleging commission
of the offences punishable under sections 153A, 505(1)(b), 117
read with 34 of the Penal Code. On 6 th March, 2018 an offence
punishable under section 120B of the Penal Code came to be
added. During the course of investigation, searches were
conducted at various places. On 17th May, 2018 the offences
punishable under sections 13, 16, 17, 18, 18-B, 20, 38, 39 and 40
of UAPA were added. On 28 th August 2018, the applicant,
P.Varavara Rao, Gautam Navlakha, Vernon Gonsalves and Arun
Ferreira were arrested by the Pune police.
4. The applicant was produced before the Chief Judicial
Magistrate, Faridabad, Haryana, who granted transit remand for
two days. On the very same day, a Habeas Corpus petition was
fled on behalf of the applicant, being Criminal Writ Petition No.
701 of 2018 before the Punjab & Haryana High Court. The
applicant was directed to be kept under house arrest under the
supervision of Surajkund police. Writ Petition No. 260 of 2018 was
fled by Romila Thapar & Others in the Supreme Court. By an
order dated 29th August, 2018, the house arrest came to be
extended till further orders. Eventually, the said writ petition
Mrs. S.K.Talekar,PS 5/120
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came to be dismissed on 28th September, 2018. However, the
interim order was continued for a period of four weeks. The bail
application preferred by the applicant came to be dismissed by the
Sessions Court, Pune, on 26th October, 2018.
5. On 27th October, 2018, the applicant was taken into
custody by Pune police. The learned Additional Sessions Judge,
Pune (Shri K.D. Vadane), before whom the applicant was
produced, remanded the applicant to police custody for ten days.
6. On 22nd November, 2018 the Public Prosecutor fled a report
(Exh.33) seeking extension of period for investigation. On 26 th
November, 2018, the applicant fled an application (Exh.43) for
bail under section 167(2) of Code as 90 days period from the date
of applicant's arrest and production before the Magistrate expired.
The learned Sessions Judge passed an order on the report of the
Public Prosecutor (Exh.33) and extended the period of detention
by 90 days.
7. Eventually, the charge-sheet was fled against the applicant
and the co-accused in the Court of learned Additional Sessions
Judge, Pune. By an order dated 21 st February, 2019, the learned
Additional Sessions Judge (Shri. K.D.Vadane) took cognizance of
Mrs. S.K.Talekar,PS 6/120
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the offence and issued process against the applicant and the co-
accused.
8. The applicant and the co-accused fled a joint application for
default bail (Exh. 164) on 17th May, 2019. Another application
(Exh.169) was preferred on 21 st June, 2019. By order dated 5th
September, 2019, passed by the learned Additional Sessions
Judge (Mr. Ravindra Pande), the default bail application (Exh.169)
was rejected. Whereas the frst and second bail applications
(Exh.43 & 164) were rejected by the learned Additional Sessions
Judge (Mr. S.R. Navandar) by order dated 6th November, 2019.
9. It would be contextually relevant to note that on 24 th
January, 2020, the Central Government passed an order under
section 6(5) read with section 8 of the National Investigation
Agency Act, 2008 ('NIA Act') directing respondent No.1-NIA to take
up investigation of frst information report No. 4 of 2008 registered
with Vishrambaug Police Station. Consequently, NIA registered
frst information report No. RC-01/2020/NIA/Mum. under
sections 153A, 505(1)(b), 117 read with 34 of the Penal Code and
sections 13, 16, 18, 18-B, 20, 39 of UAPA on 24 th January, 2020.
Mrs. S.K.Talekar,PS 7/120
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10. On 14th February, 2020, the learned Additional Sessions
Judge, Pune (Mr.S.R. Navander) passed an order directing that the
record and proceedings of Special Case (ATS) No. 1 of 2018 and
entire muddemal property be sent to Special (NIA) Court, Mumbai.
Eventually, on 9th October, 2020, the NIA fled charge-sheet under
sections 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117 and 23 of
the Penal Code and sections 13, 16, 17, 18, 18-B, 20, 38, 39 and
40 of UAPA.
11. The applicant has preferred this application for default bail
on the ground that Shri K.D.Vadane, learned Additional Sessions
Judge, Pune, who passed order on the prosecutor's report under
section 43-D(2) of the UAPA extending the applicant's detention by
90 days and took cognizance of the offences by an order dated 21 st
February, 2019 was not competent to do so as he was not
designated as a Special Judge either under section 11 or section
22 of the NIA Act.
12. The applicant asserts that information was obtained
under the Right to Information Act to the effect that Shri K.D.
Vadane and Shri R.M. Pande were never appointed as Special
Judges/Additional Sessions Judges by the Central Government
Mrs. S.K.Talekar,PS 8/120
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for the period 1st January, 2018 to 31st July, 2019. Nor Shri S.R.
Navandar had been appointed as the Special Judge by the
Government of Maharashtra under the NIA Act for the period 5 th
September, 2019 to 14th February, 2020. It was further informed
that Shri Aniruddha Yashwant Thatte, Shri Abhay Narharrao
Sirsikar and Shri Shyam Hariram Gwalani, the learned Additional
Sessions Judges were appointed as Special Judges/ Additional
Special Judges by the Government of Maharashtra for the trial of
cases under section 22 of the NIA Act for Pune District vide
Notifcations, dated 5th March, 2019, 29th June, 2018 and 11th July,
2017.
13. The applicant asserts that, in particular, Shri K.D. Vadane,
learned Additional Sessions Judge, who extended the detention of
the applicant by order dated 26 th November, 2018 and took
cognizance of the offences by order dated 21 st February, 2019 was
not at all appointed as Special Judge/ Additional Special Judge by
the Government of Maharashtra under section 22 of the NIA Act
or by the Government of India under section 11 of the NIA Act,
and, thus, had no jurisdiction to deal with the Scheduled Offences
under the NIA Act. Resultantly, the orders dated 26 th November,
2018 and 21st February, 2019 passed by Shri K.D.Vadane, learned
Mrs. S.K.Talekar,PS 9/120
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Additional Sessions Judge lack jurisdiction and legal authority
and thus are null and void. Adverting to the provisions contained
in sections 13 and 22 of the NIA Act, applicant asserts that every
Scheduled Offence investigated by the investigation agency of the
State Government, shall be tried only by the Special Court within
whose local jurisdiction it was committed. Since the Special
Courts were already constituted by the State Government under
section 22 of the NIA Act in Pune District, vide Notifcations dated
11th July, 2017, 29th June, 2018 and 5 th March, 2019, the orders of
extension of period of detention and taking cognizance were non-
est in the eye of law.
14. The applicant has averred that the case is covered by the
pronouncement of the Supreme Court in the case of Bikramjit
Singh vs. State of Punjab 1, wherein Supreme Court held that the
Special Court alone had jurisdiction to extend detention upto 180
days under the provisions of section 43-D(2)(b) of UAPA.
15. The applicant asserts that since the applicant had applied
for release on default bail under section 167(2) of the Code, prior
1 (2020) 10 Supreme Court Cases 616.
Mrs. S.K.Talekar,PS 10/120
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to the fling of the charge sheet, the applicant had a right to be
released on default bail and ought to have been so released on
26th November, 2018. Even if the period of house arrest is
excluded from consideration, the 90 days period would have
expired on 25th January, 2019 and since the charge-sheet was
fled on 21st February, 2019 and the bail application of the
applicant was pending on that day, the applicant ought to have
been released on bail. Hence, this application for quashing and
setting aside the orders dated 26th November, 2018 and 21st
February, 2019 passed by the learned Additional Sessions Judge
and the release of the applicant on bail.
CRIMINAL APPLICATION No. 1458 of 2019 :-
16. The applicants, who have been arraigned as accused Nos. 1
to 8 in Special (ATS) Case No.1 of 2018, arising out of C.R.No. 4 of
2018 registered with Vishrambaug Police Station have preferred
this application for quashing and setting aside the order dated 5 th
September, 2019 passed by the learned Additional Sessions Judge
(Mr. Ravindra Pande) on the application (Exh.169) for default bail
and declaration that the learned Judge had no power to take
cognizance of the offences, and release the applicants on bail on
the ground that the cognizance taken by the learned Judge was
Mrs. S.K.Talekar,PS 11/120
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bad in law. In the said application (Exh.169), the applicants had
averred that the learned Judge had no jurisdiction to take
cognizance as a Court of original jurisdiction, since the case was
not committed by the learned Magistrate.
17. In the instant application, the applicants assert that the
UAPA does not contain any provision for the appointment of a
Special Judge or for constitution of Special Courts. Thus, the
usurpation of the jurisdiction by the learned Additional Sessions
Judges, under a misnomer of Special Judge, was wholly illegal.
Consequently, the orders granting remand, authorizing detention
of the accused and taking cognizance were all illegal. Referring to
the Notifcations issued by the State Government under section 22
of the NIA Act, the applicants aver that, well before arrest and
detention of the applicants, Special Courts were constituted by
the State Government under section 22 of the NIA Act and thus
the Courts, other than designated Special Court, could not have
entertained any of the proceedings in relation to the Scheduled
Offences. The charge-sheet thus cannot be said to have been
lodged before a competent Court. Therefore, the applicants, who
had preferred application for default bail under section 167(2) of
Mrs. S.K.Talekar,PS 12/120
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the Code ought to have been released on bail.
18. An affdavit in reply is fled on behalf of NIA in both the
applications.
19. The application preferred by the applicant-Sudha Bharadwaj
(Bail Application No. 2024 of 2021) is resisted on the ground that
the application is based on a complete misreading of the
provisions of the NIA Act, UAPA and the Code. Since UAPA does
not contemplate any special procedure for the offences defned
therein, much less creation of Special Courts, the jurisdiction of
ordinary criminal courts functioning under the Code is kept intact
and the procedure prescribed therein is required to be followed.
20. The NIA contends that the Special Court constituted under
NIA Act has no jurisdiction to deal with the offences unless the
offences are Scheduled Offences, as enumerated under the
Schedule to the NIA Act, and those offences are investigated by
National Investigation Agency. According to the respondent- NIA,
the Special Courts constituted under section 22 of the NIA Act
have the jurisdiction to try the Scheduled Offences investigated by
the Agency, only when the National Investigation Agency transfers
the case to the State Government for investigation and trial of the
Mrs. S.K.Talekar,PS 13/120
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offences under section 7(b) of the NIA Act. Since NIA entered into
investigation in this case on 24 th January, 2020, pursuant to the
orders passed by the Central Government, only the Court
constituted under section 11 of the NIA Act is the competent
court. Since no Court was constituted by the Central Government
under section 11 of the NIA Act at Pune, there was no legal
impediment for the learned Additional Sessions Judge (Shri
Vadane) to entertain the remand and authorize detention of the
applicant.
21. The respondent-NIA asserts that pronouncement in the case
of Bikramjit Singh (Supra) is of no assistance to the applicant. In
any event, since the applicant is assailing the legality and
correctness of the order dated 26 th November, 2018 and 21st
February, 2019, the proper remedy is to fle an appeal under
section 21 of the NIA Act. Thus, the application, in the present
form, is not tenable. The respondent No. 1 further contends that
even if it is assumed that the cognizance of the offences was taken
by the learned Additional Sessions Judge, who was not
empowered to do so, in view of the provisions contained in section
460 of the Code, the proceeding does not get vitiated on that
count alone.
Mrs. S.K.Talekar,PS 14/120
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22. In addition to the aforesaid grounds, the application of
Sudhir Prahlad Dhawale and Others (Criminal Application No.
1458 of 2019) is contested on the ground that the composite
application fled by all the applicants is not maintainable since
the cause of application for fling the application is different for all
the accused, as they were arrested on different dates. Secondly,
the charge-sheet was lodged on 15 th November, 2018; whereas the
application (Exh.169) was preferred on 21 st June, 2019. Thus, the
application for default bail under section 167 of the Code
presented after fling of the charge-sheet was not tenable and,
therefore, rightly dismissed by the learned Additional Sessions
Judge. The respondent -NIA reiterated that even if it is assumed,
for the sake of argument that, a Court under section 22 of the NIA
Act was constituted for Pune district, the said Court would not get
jurisdiction unless the investigation was transferred to the State
Investigation Agency under section 7(b) of NIA Act and mere
existence of the Court would not imply that the said Court would
have exclusive jurisdiction.
23. We have heard Dr. Yug Chaudhary, the learned counsel for
the applicant in Bail Application No.2024 of 2021, Mr. Sudeep
Mrs. S.K.Talekar,PS 15/120
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Pasbola, the learned counsel for the applicants in Criminal
Application No.1458 of 2019, Mr. A.A. Kumbhakoni, the learned
Advocate General for the Respondent No.2-State and Mr. Anil
Singh, the learned Additional Solicitor General for respondent-NIA
in both the applications. With the able assistance of the learned
counsels for the parties, we have perused the material on record
including the impugned orders and the Notifcations whereunder
the Special Courts have been constituted by the State Government
under section 22 of the NIA Act.
24. In the backdrop of the challenge, in the instant applications,
before adverting to note the submissions canvassed across the
bar, it may be advantageous to note the facts, which are rather
uncontroverted. This would facilitate the appreciation of the
submissions in correct perspective, and also narrow down the
controversy.
25. The facts relevant for the determination of the controversy at
hand, can be stated as under :-
(1) On 8th January 2018, Tushar Ramesh
Damgude lodged FIR at Vishrambaug Police Station,
Pune being FIR No.4 of 2018 for the offences
Mrs. S.K.Talekar,PS 16/120
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punishable under sections 153A, 505(1)(b) and 117
read with 34 of the Penal Code alleging, inter-alia,
that in the programme organized by the members of
Kabir Kala Manch under the banner of 'Elgar
Parishad', the speeches and performances were
provocative and had the effect of creating communal
disharmony. It was further alleged that the said
programme provoked the incidents of violence near
Bhima Koregaon, Pune on 1st January 2018, resulting
in the loss of life and property and creation of social
disharmony.
(2) On 22nd January 2018, the investigation in FIR
No.4 of 2018 came to be entrusted to the Assistant
Commissioner of Police, Swargate Division, Pune City.
(3) On 6th March 2018, charge under section 120B
of the Penal Code was added.
(4) On 17th May 2018, sections 13, 16, 17, 18-B, 20,
38, 39 and 40 of UAPA were applied. The applicant
Nos.1 to 5, namely, Sudhir Prahlad Dhawale, Rona
Wilson, Surendra Gadling, Dr. Shoma Sen and
Mahesh Raut in Criminal Application No.1458 of 2019
Mrs. S.K.Talekar,PS 17/120
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were arrested on 6th June 2018.
(5) The applicant Nos.6 to 8 in Application No. 1458
of 2019, namely P. Varavara Rao, Vernon Gonsalves
and Arun Ferreira were arrested on 28th August 2018.
(6) The applicant-Sudha Bharadwaj in Bail
Application No. 2024 of 2021 was also arrested on
28th August 2018.
(7) On 15th November 2018, the State Police (Anti-
Terrorist Squad) fled a charge-sheet against the
applicant Nos.1 to 5 in Application No. 1458 of 2019,
leading to Special ATS Case No.1 to 2018.
(8) On 22nd November 2018, the learned Public
Prosecutor, Pune fled report (Exh.33) under section
43-D(2) of UAPA read with section 167(2) of the Code
for extension of the period for investigation and the
consequent detention of the accused.
(9) On 26th November 2018, Sudha Bharadwaj fled
an application for default bail asserting inter-alia that
the statutory period of 90 days for completion of
investigation under section 167(2) of the Code from
the date of the arrest of the applicant had expired
Mrs. S.K.Talekar,PS 18/120
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and thus she deserved to be enlarged on bail.
(10) By an order dated 26th November 2018,
impugned herein, the learned Additional Sessions
Judge (Shri K.D. Vadane) extended the period of
detention of applicant Nos. 6 to 8, P. Varavara Rao,
Vernon Gonsalves and Arun Ferreira in Application
No.1458 of 2019 and Sudha Bharadwaj, the applicant
in Bail Application No.2024 of 2018, by 90 days.
(11) On 21st February 2019, the State Police fled
supplementary charge-sheet against the applicant
Nos. 6 to 8 and Sudha Bharadwaj. By the order of
even date (impugned herein), the learned Additional
Judge (Shri K.D. Vadane) took cognizance of the
offences alleged against the applicants and issued
process.
(12) On 17th May 2019, applicant Nos.6 to 8 and
Sudha Bharadwaj fled the second application
(Exh.164) for bail under section 167(2) on the premise
that investigating agency had fled incomplete charge-
sheet based on incomplete investigation and thus the
applicants were entitled to be released on bail.
Mrs. S.K.Talekar,PS 19/120
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(13) On 21st June 2019, all the applicants preferred
application (Exh. 169) for bail under section 167(2) of
the Code read with section 43-D(2) of UAPA alleging
inter-alia that cognizance of the offences was not
taken by the competent Court.
(14) On 5th September 2019, the said
application (Exh.169) was rejected by another
Additional Sessions Judge (Shri Ravindra M. Pande).
(15) On 6th November 2019, the frst (Exh. 43) and
second (Exh.164) bail applications and another
application (Exh.163) were rejected by Additional
Sessions Judge, Pune (Shri S.R. Navandar) holding
that since charge-sheet came to be fled within the
extended period, there was no scope to entertain the
applications for default bail.
(16) On 24th January 2020, the Central Government
passed an order directing the NIA to take up
investigation in C.R. No. 4 of 2018 (ATS Case No. 1 of
2018) under section 6(5) of the NIA Act.
(17) On 14th February 2020, the learned
Additional Sessions Judge, Pune (Shri S.R. Navandar)
Mrs. S.K.Talekar,PS 20/120
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passed an order directing the transmission of the
record and proceedings of Special ATS Case No. 1 of
2018 to Special (NIA) Court, Mumbai.
26. It would be contextually relevant to notice, at this stage
itself, the Notifcations issued by the State Government
constituting the Special Courts under NIA Act. The existence or
otherwise of the Special Courts at Pune constituted by the State
Government under section 22 of the NIA Act bears upon the
issues raised in these applications.
[A] By a Notifcation dated 11th July 2017, the State
Government, by invoking the powers under the NIA
Act and Maharashtra Control of Organised Crime Act,
1999 ('MCOC Act') constituted the Court of Special
Judge at Pune presided over by Shri Shyam Hariram
Gwalani for Pune City/range. Shri Anil Shripati
Mahatme was appointed as an Additional Special
Judge.
[B] On 29th June 2018, Shri Anil Shripati Mahatme
was appointed as a Special Judge for exercising
jurisdiction under NIA Act and MCOC Act. Shri
Abhay Narharrao Sirsikar was appointed as an
Mrs. S.K.Talekar,PS 21/120
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Additional Special Judge.
[C] Subsequently, by a Notifcation dated 5th March
2019, Shri Aniruddha Yashwant Thatte was
appointed as a Special Judge to preside over the
Special Court constituted under section 22 of the NIA
Act, in the place of Shri A.S. Mahatme.
[D] By a Notifcation dated 29th August 2008, the
State Government, in exercise of the powers under
sections 11 and 185 of the Code, designated the
Court of Judicial Magistrate, First Class, Anti
Corruption, Shivajinagar, Pune and the Court of
Sessions, Pune to deal with the proceedings
investigated by the Anti-Terrorist Squad, Maharashtra
State ('ATS') for areas falling within the limits of Pune
Police Commissionerate, Solapur Police
Commissionerate, all Districts in Kolhapur region,
Ranagiri and Sindhudurg Districts in Kokan Region.
[E] Consequent thereto and in connection therewith,
by an order dated 2nd August 2014, the learned
Sessions Judge, Pune designated the Court of
District Judge-3 and Additional Sessions Judge,
Mrs. S.K.Talekar,PS 22/120
.. 23 .. BA-2024-2021=ba-1458-2019+ J.doc
Pune as a Special Judge for trial of offences
investigated by ATS, until further orders.
27. In the light of the aforesaid Notifcations, Shri Kumbhakoni,
the learned Advocate General, in his usual fairness, submitted
that the respondents do not contest the fact that Shri K.D.
Vadane, Shri R.M. Pande and Shri S.R. Navandar, the learned
Additional Sessions Judges, Pune, who passed the orders referred
to above, were not appointed as the Special Judges to preside over
the Special Courts constituted by the State Government under
section 22 of the NIA Act. The fact that in some of the orders
referred to above, the learned Additional Sessions Judges have
superscribed the designation of Special Judge/Additional Special
Judge or Special Judge, UAPA is thus of little consequence.
28. We deem it appropriate to note and consider the
submissions on behalf of the counsels for the parties with this
clarity that the above-named learned Additional Sessions Judges
were not appointed as the Special Judges to preside over the
Special Courts constituted under section 22 of the NIA Act.
SUBMISSIONS IN CRIMINAL BAIL APPLICATION NO. 2024 OF
2021 :
29. Dr. Chaudhary, the learned counsel for the applicant-
Mrs. S.K.Talekar,PS 23/120
.. 24 .. BA-2024-2021=ba-1458-2019+ J.doc
Sudha Bharadwaj canvassed multi-pronged submission. First and
foremost, in view of the provisions contained in NIA Act, the
Scheduled Offences can be tried only before a Special Court
constituted either under section 11 or section 22 of the NIA Act.
Since UAPA is one of the Acts mentioned in the Schedule of the
NIA Act, 2008, all the offences punishable under UAPA are
Scheduled Offences for the purpose of NIA Act. Since sections 13,
16, 17, 18, 18-B, 20, 38, 39 and 40 of UAPA were added to FIR
No.4 of 2018, by the State Police on 17 th May 2018, the jurisdiction
lay with the Special Court constituted under section 22 of the NIA
Act. Secondly, as a corollary to the frst submission, Dr.
Chaudhary would urge that the Special Court so constituted
under section 22 of the NIA Act alone had the power to extend the
period of detention under section 43-D(2) of the UAPA.
30. Inviting the attention of the Court to the defnition of the
'Court' contained in section 2(d) of UAPA, it was urged that once
the Special Court was constituted at Pune under section 22 of the
NIA Act, only the said Special Court had jurisdiction to extend the
period of detention under section 43-D(2) of the UAPA and no
other. To bolster up this submission, a very strong reliance was
placed on the judgment of the Supreme Court in the case of
Mrs. S.K.Talekar,PS 24/120
.. 25 .. BA-2024-2021=ba-1458-2019+ J.doc
Bikramjit Singh (Supra). Since Shri K.D. Vadane, the learned
Additional Sessions Judge, was not a Special Judge to preside
over the Special Court under section 22 of the NIA Act, the
extension of period of detention beyond 90 days by the impugned
order dated 26th November 2018 is non-est in the eye of law.
31. Thirdly, the act of taking cognizance of the offences by order
dated 21st February 2019, upon presentment of the charge-sheet
by the State Police, according to Mr. Chaudhary, was also tainted
with the vice of complete lack of jurisdiction, both under the Code
and provisions of NIA Act. Amplifying this submission, Mr.
Chaudhary strenuously urged that in view of the interdict
contained in section 193 of the Code, the learned Additional
Sessions Judge, being a Court of Session, could not have taken
cognizance of the offences as a Court of original jurisdiction
unless the case was committed to him by a Magistrate under the
Code.
32. As a second limb, it was submitted that the NIA Act, under
section 16(1) creates Court of original jurisdiction, by empowering
the Special Court to take cognizance of the offences without the
accused being committed for trial. Thus, only the Special Courts
Mrs. S.K.Talekar,PS 25/120
.. 26 .. BA-2024-2021=ba-1458-2019+ J.doc
constituted under sections 11 or 22 of the NIA Act, are competent
to take cognizance of the offences without the case being
committed.
33. Dr.Chaudhary further submitted that the impugned orders
passed without jurisdiction are a nullity and non -est in law. The
exercise of jurisdiction by a Court which is not vested in it
prejudices not just the accused but impairs the rule of law as well.
All the consequent actions, based on such orders passed without
jurisdiction, are devoid of any legal sanctity.
34. In support of these submissions, Dr.Chaudhary placed
reliance on the judgments of the Supreme Court in the cases of
Fatema Bibi Ahmed Patel Vs. State of Gujarat & Anr. 2, Zuari
Cement Limited Vs. Regional Director, Employees' State Insurance
Corporation, Hyderabad and Ors. 3
and Shrisht Dhawan (Smt.)
Vs. M/s. Shaw Brothers 4. Dr. Chaudhary would further urge that
as the issue of jurisdiction goes to the very root of the matter, it
can be agitated at any stage of the proceedings and aspects of
delay and latches, estoppel, waiver, and res-judicata do not
constitute an impediment in considering the plea of want of
2 (2008) 6 SCC 789
3 (2015) 7 SCC 690
4 (1992) 1 SCC 534
Mrs. S.K.Talekar,PS 26/120
.. 27 .. BA-2024-2021=ba-1458-2019+ J.doc
jurisdiction divesting the court/tribunal of the authority to pass
the order.
35. Mr. Kumbhakoni, the learned Advocate General joined the
issue by stoutly submitting that the applications are misconceived
and based on an erroneous understanding of the very object of
enactment of NIA Act. The learned Advocate General would urge
that till the investigation was entrusted to NIA by the Central
Government under section 6 of the NIA Act, the provisions of the
NIA Act had no application at all to the instant case. Laying
emphasis on the Statement of Objects and Reasons of the NIA Act,
2008, namely to make provision for establishment of a National
Investigation Agency, in a concurrent jurisdictional framework, it
was urged that the submission on behalf of the applicants that
the moment a Scheduled Offence was reported, the NIA Act came
into play was conceptually fawed. Inviting the attention of the
Court to the provisions contained in section 6, the learned
Advocate General would urge that twin conditions must be
satisfed before the NIA Act came into operation. One, the Central
Government upon receipt of the report under sub-section (3) from
the State Government must form an opinion that the offence is a
Scheduled Offence. Two, the Central Government must be of a
Mrs. S.K.Talekar,PS 27/120
.. 28 .. BA-2024-2021=ba-1458-2019+ J.doc
further opinion that it is a ft case to be investigated by the
National Investigation Agency and thus direct the agency to
investigate the said offence. In the case at hand, indisputably, the
Central Government passed an order under section 6(5) on 24 th
January 2020, and, therefore, according to the learned Advocate
General, there was no occasion for the application of the
provisions contained in NIA Act, 2008, till the said date, if not till
12th February 2020, the day the State Government passed order to
hand over the investigation to NIA.
36. The learned Advocate General urged with a degree of
vehemence that the Courts constituted under section 22 of the
NIA Act, by the State Government, do not get the jurisdiction to
try the Scheduled Offences unless the National Investigation
Agency transfers the investigation to the State Government. This
submission was premised on the provisions contained in section 7
of the NIA Act which empowers the National Investigation Agency
either to request the State Government to associate itself with the
investigation or, with the previous approval of the Central
Government, transfer the case to the State Government for
investigation and trial of the offence. A conjoint reading of the
provisions contained in section 7(b) and section 22 of the NIA Act,
Mrs. S.K.Talekar,PS 28/120
.. 29 .. BA-2024-2021=ba-1458-2019+ J.doc
make this position abundantly clear. It was urged that this
harmonious construction of the provisions contained in sections 7
and 22 of the NIA Act has been resorted to by various High
Courts, including this Court.
37. To bolster up this submission, the learned Advocate General
banked upon the Division Bench judgments of this Court in the
cases of Mr.Areeb S/o. Ejaj Majeed Vs. National Investigation
Agency5 and Naser Bin Abu Bakr Yafai Vs. The State of
Maharashtra & Anr.6 , a Full Bench judgment of Patna High Court
in the case of Bahadur Kora Vs. State of Bihar 7
and a Division
Bench judgment of Delhi High Court in the case of Aqil Hussain
Vs. State of NCT of Delhi and Ors. 8
38. The learned Advocate General laid special emphasis on the
defnition of the "Court" under section 2(d) of UAPA to canvass the
submission that if all Scheduled Offences were held to be triable
only by the Special Courts constituted under the NIA Act, the
expression "Court" means a Criminal Court having jurisdiction,
under the Code, to try offences under this Act", would be rendered
5 2016 SCC OnLine Bom. 5108
6 2018(3) ABR (Cri.) 758
7 2015 Cri.L.J. 2134
8 2021 Cri. L.J. 1405
Mrs. S.K.Talekar,PS 29/120
.. 30 .. BA-2024-2021=ba-1458-2019+ J.doc
redundant. It was submitted that the fact that the legislature has
employed the device "means and includes" in defning the term
"Court" under section 2(d) of the UAPA cannot be lost sight of. If
the said provision is construed on the well settled cannon of
construction of statute that the legislature does not use any word
as surplusage, the 'Court' under section 2(d) of the UAPA does not
mean only the Court constituted under the NIA Act. Attention of
the Court was invited to a judgment of the Madras High Court in
the case of Thangaraj @ Thamilarasan & Ors. Vs. State by the
Deputy Superintendent of Police 9. To delineate the manner in
which an inclusive defnition is required to be interpreted, the
learned Advocate General relied upon the pronouncement of the
Supreme Court in the case of P. Kasilingam & Ors. Vs. P.S.G.
College of Technology & Ors. 10.
39. It was further submitted by the learned Advocate General
that the Schedule of the NIA Act contains various enactments
under which Special Courts have been constituted and Special
Judges have been designated. If the submission on behalf of the
applicants is acceded to, then according to the learned Advocate
General, the Courts constituted/designated under the special
9 2014 SCC OnLine Mad 6459
10 1995 Supp (2) Supreme Court Cases 348
Mrs. S.K.Talekar,PS 30/120
.. 31 .. BA-2024-2021=ba-1458-2019+ J.doc
enactments enlisted in the Schedule would be rendered nugatory.
They would be divested of the jurisdiction statutorily conferred.
The learned Advocate General thus urged that exclusivity cannot
be given to NIA Courts for all the offences and for all times to
come.
40. In the alternative, the learned Advocate General strenuously
urged that the Special Courts have been constituted under section
22 of the NIA Act only for 'trial' of the Scheduled Offences as is
evident from the text of section 13 of the UAPA. As a necessary
corollary, the Special Courts are not empowered to entertain and
deal with pre-trial proceedings. Drawing the distinction between
'investigation' and 'trial', in the backdrop of the fact that section
167 of the Code deals with the stage of investigation, it was
submitted that in any event, application for extension of time
under section 167 of the Code read with section 43-D(2) of the
UAPA, could not have been entertained by the Special Courts
constituted under the NIA Act as such Courts are not vested with
the jurisdiction to decide pre-trial proceedings. Lastly, it was
submitted that the term, 'Court' in the frst proviso to section 43-
D(2) of the UAPA, does not envisage a Court of Magistrate, and,
therefore, the application for extension could never have been
Mrs. S.K.Talekar,PS 31/120
.. 32 .. BA-2024-2021=ba-1458-2019+ J.doc
made before the Magistrate. The investigating offcer had thus no
other go but to seek extension of the period of investigation and
consequent detention of the accused, before the jurisdictional
Sessions Court.
41. Mr.Anil Singh, the learned Additional Solicitor General
adopted the submissions of the learned Advocate General. In
addition, the learned Additional Solicitor General submitted that
the applications for default bail are not at all tenable as the pre-
requisites to seek default bail have not been made out, on facts.
The applicant Sudha Bharadwaj had made the application for
default bail (Exh.43) much before the expiry of the period of 90
days, as the period of house arrest was required to be excluded
from consideration. Whereas, the second and third application
(Exh.164 and Exh. 169) were fled by the applicants, after the
charge-sheet was fled on 21st February 2019. With the fling of
the charge-sheet, the right to seek default bail stood extinguished,
even if it is assumed that the applicants were entitled to seek
default bail since the applicants did not avail the said right. In
substance, the applicants did not make a valid application for
default bail between the expiry of the period of 90 days and fling
of the charge-sheet.
Mrs. S.K.Talekar,PS 32/120
.. 33 .. BA-2024-2021=ba-1458-2019+ J.doc
42. The second ground of the alleged jurisdictional defect in the
order taking cognizance, according to Mr. Singh, stands on a
much weaker foundation. What is material is completion of
investigation and fling of the charge-sheet within the stipulated
period. The fact that the jurisdictional Court did not take
cognizance of the offences within the statutory period is of no
relevance and does not confer any right on the accused to seek
default bail.
43. To lend support to the above submissions, Mr.Anil Singh
placed a strong reliance on the observations of the Supreme Court
in the cases of Sanjay Dutt Vs. State through C.B.I. Bombay (II) 11
and Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra
& Anr. 12
. Mr. Anil Singh canvassed a further submission that the
applicants submitted themselves to the jurisdiction of the learned
Additional Sessions Judge, preferred applications for bail before
the said Court and invited the orders from the Court. Mr.Singh
urged with tenacity that in the instant applications, there is no
whisper of any prejudice having been caused to the applicants on
account of the period of detention having been extended and
cognizance having been taken by the learned Additional Sessions
11 (1994) 5 SCC 410
12 (2013) 2 SCC 77
Mrs. S.K.Talekar,PS 33/120
.. 34 .. BA-2024-2021=ba-1458-2019+ J.doc
Judge. Support was sought to be drawn from the proposition that,
in the case at hand, the Sessions Court does not lack inherent
jurisdiction. The Special Judges are to be appointed from amongst
the Sessions Judges. In the absence of any claim of prejudice,
according to Mr.Anil Singh, even if the case of the applicants is
taken at par, the applicants do not deserve the relief of bail. A
very strong reliance was placed on a Three Judge Bench judgment
of the Supreme Court in the case of Rattiram and Ors. Vs. State
of Madhya Pradesh 13
to lend support to this submission.
44. Mr. Kumbhakoni, the learned Advocate General as well as
Mr. Anil Singh, the learned Additional Solicitor General made an
earnest endeavour to draw home the point that pronouncement of
the Supreme Court in the case of Bikramjit Singh (Supra) does
not govern the facts of the case and is of no assistance to the
applicant.
SUBMISSIONS IN APPLICATION NO. 1458 OF 2019 :
45. Mr. Sudeep Pasbola, the learned counsel for the applicants
would urge that the applicants herein had raised the ground of
jurisdiction on the very day, they were frst produced before the
learned Additional Sessions Judge (Shri A.S.Bhaisare). The very
13 2012(4) SCC 516
Mrs. S.K.Talekar,PS 34/120
.. 35 .. BA-2024-2021=ba-1458-2019+ J.doc
authority of the learned Additional Sessions Judge to remand the
applicants to custody was questioned. Mr.Pasbola would urge that
UAPA does not create any Special Courts, and, thus, the
nomenclature assumed by the learned Additional Sessions Judges
as Special Judges, UAPA was a complete misnomer. Inviting the
attention of the Court to the defnition of the 'Court' under section
2(d) of UAPA, which is an inclusive defnition, Mr.Pasbola
strenuously submitted that the State Police ought to have fled the
charge-sheet before the jurisdictional Magistrate and the act of
taking cognizance and issue of process by the learned Additional
Sessions Judge was wholly without jurisdiction. Since the Special
Courts were already constituted at Pune under section 22(1) of
the NIA Act, the recourse to sub-section (3) of section 22 of the
NIA Act was not warranted. Mr. Pasbola would urge that if the
provisions contained in section 13(1) and section 22(2) of the NIA
Act are read in juxtaposition, then it becomes abundantly clear
that the agency includes the investigation agency of the State by
whatever name called. Therefore, in any event, charge-sheet could
not have been lodged before the Sessions Court. Mr. Pasbola
canvassed a further submission that mere fling of the charge-
sheet was of no signifcance. The charge-sheet was required to be
Mrs. S.K.Talekar,PS 35/120
.. 36 .. BA-2024-2021=ba-1458-2019+ J.doc
fled before the competent Court and within the stipulated period.
In the case at hand, since charge-sheet was not fled before the
competent Court, all the subsequent actions were vitiated.
46. Banking upon the pronouncements of the Supreme Court in
the cases of State of Tamil Nadu Vs. Paramasiva Pandian 14
,
Bikramjit Singh (Supra), A.R. Antulay Vs. Ramdas Sriniwas
, and State of Punjab Vs. Davinder Pal Singh
, and the judgment of Rajasthan High Court in
, Mr. Pasbola would
urge that the applicants are entitled to be enlarged on bail.
47. Per contra, Mr.Singh, the learned Additional Solicitor
General vehemently submitted that the arguments sought to be
canvassed on behalf of the applicants are beyond the grounds
raised in the application. Evidently, the premise of the claim for
default bail was the alleged failure to take cognizance of the
offences by the jurisdictional Court. In view of the settled legal
position that, once charge-sheet is fled the aspect of cognizance
or otherwise is of no relevance so far as the entitlement for default
14 (2002) 1 SCC 15
15 (1984) 2 SCC 500
16 (2011) 14 SCC 770
17 1983 RL W 549
Mrs. S.K.Talekar,PS 36/120
.. 37 .. BA-2024-2021=ba-1458-2019+ J.doc
bail, the application deserves to be dismissed at the threshold as
wholly misconceived.
48. Mr. Kumbhakoni, the learned Advocate General concurred
with the submission of Mr.Singh. It does not require any authority
to support the proposition that the accused is not entitled to bail
on the ground that cognizance is bad in law, urged the learned
Advocate General. In the instant case, since the applicants have
not at all challenged the extension of time for investigation and
detention of the applicants, there is no justifable reason to
entertain the plea for default bail, submitted the learned Advocate
General. Mr. Kumbhakoni as well as Mr.Anil Singh relied upon the
judgment of the Supreme Court in the case of Suresh Kumar
Bhikamchand Jain (Supra) in support of the aforesaid
submissions.
49. Dealing with the submission on behalf of the applicants that
the Additional Sessions Judge could not have taken cognizance of
the offences, the learned Advocate General invited the attention of
the Court to the judgment of the Supreme Court in the case of
State through Central Bureau of Investigation, Chennai Vs. V.
, wherein the Supreme Court inter-alia observed
18 (2016) 11 SCC 733
Mrs. S.K.Talekar,PS 37/120
.. 38 .. BA-2024-2021=ba-1458-2019+ J.doc
that the fact that the Special Court is empowered to take
cognizance directly under section 5 of the Prevention of
Corruption Act, 1988 does not imply that the normal procedure
prescribed under section 190 of the Code empowering the
Magistrate to take cognizance of such offences, though triable by
the Court of Session, is not given a go-by. Both the alternatives
are available.
50. In rejoinder, Mr. Pasbola attempted to join the issue by
canvassing a submission that at the heart of the controversy is
the fact as to whether the charge-sheet was lodged before, and
cognizance was taken by, the competent court.
51. In the backdrop of the nature of the challenge to the prayer
of the applicants, in this application, it may be apposite to note
the stand of the applicants in the application (Exh.169) before the
learned Additional Sessions Judge. The averments in paragraph
Nos.4 to 6 of the application make the stand of the applicants
abundantly clear.
"4 That cognizance of the present offence has
not been taken, and that this Hon'ble Court has no
jurisdiction to take cognizance of the offence at this
stage, as no Court of Session can take cognizance of
any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate.
Mrs. S.K.Talekar,PS 38/120
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5 That, it is only when the present case is
committed to the Court of Session by a Magistrate,
and after cognizance of the present offence has been
taken that the applicants/accused may be remanded
in custody under any provision in law other than
Section 167 Cr.P.C.
6 That, in the absence of cognizance being
taken of the present offence and in the absence of
committal by a Magistrate, the applicants/accused,
having been in detention for well over one hundred
and eight days, are entitled to be released on bail as
per the provisions of S.167(2) Cr.P.C. r/w S. 43-D(2)
of UAPA."
52. It becomes evidently clear that it was the stand of the
applicants before the learned Additional Sessions Judge that the
charge-sheet ought to have been fled before the learned
Magistrate, and, thereafter, the case ought to have been
committed to the Court of Sessions, and, only thereupon, the
cognizance of the offences could have been taken, and that having
not been done, according to the applicants, they were entitled to
be released on bail.
53. At this juncture, a proftable reference can be made to the
judgment of the Supreme Court in the case of Suresh Kumar
Bhikamchand Jain (Supra). In the said case, the Supreme Court
was confronted with the question as to whether the accused
therein was entitled to be released on default bail under section
Mrs. S.K.Talekar,PS 39/120
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167(2) of Criminal Procedure Code for the reason that although
charge-sheet had been fled within the time stipulated under
section 167(2) of Cr.P.C., sanction to prosecute the petitioner had
not been obtained, as a result whereof, no cognizance of the
offences was taken.
54. The Supreme Court held that the fling of charge-sheet was
suffcient compliance with the provisions of Section 167(2)(a)(ii) of
the Code. Whether cognizance is taken or not is not material as
far as Section 167 Cr.P.C. was concerned. The right which may
have accrued to the petitioner, had charge-sheet not been fled,
was not attracted to the facts of the case. Merely because sanction
had not been obtained to prosecute the accused and to proceed to
the stage of Section 309 Cr.P.C., the Supreme held, it cannot be
said that the accused was entitled to grant of statutory bail, as
envisaged in Section 167 Cr.P.C.
55. The challenge in the instant Application No.1458 of 2019,
thus converges with the challenge in the Application No.2024 of
2021 of Sudha Bharadwaj, namely the charge-sheet was not
lodged before the competent Court within the stipulated period.
Mrs. S.K.Talekar,PS 40/120
.. 41 .. BA-2024-2021=ba-1458-2019+ J.doc
56. Resultantly, the controversy gets boiled down to the
following questions :
(i) Whether the extension of period for
investigation and detention, by invoking the frst
proviso in the provisions of section 43-D(2) of the
UAPA read with section 167(2) of the Code, was by a
competent Court?
(ii) Whether the charge-sheet was lodged
before, and the cognizance was taken by, the
competent Court?
(iii) Whether the applicants are now entitled to
default bail, if the answer to the aforesaid questions
is in the negative ?
STATUTORY PRESCRIPTION :
57. To begin with, sub-section (2) of section 4 of the Code
ordains that all offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but 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. Section 5 of
the Code further provides that nothing contained in this Code
shall, in the absence of a specifc provision to the contrary, affect
any special or local law for the time being in force, or any special
Mrs. S.K.Talekar,PS 41/120
.. 42 .. BA-2024-2021=ba-1458-2019+ J.doc
jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force. In short,
if a special enactment provides a procedure which is in derogation
of the general provisions prescribed in the Code, the special
procedure will prevail.
58. In the context of the controversy, it would be imperative note
that section 193 of the Code contains an interdict against a Court
of Session taking cognizance of any offence as a Court of original
jurisdiction by providing that, except as otherwise expressly
provided by the Code, or by any other law for the time being in
force, no Court of Session shall take cognizance of any offence as
a Court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code. It implies that a
Court of Session can take cognizance of any offence as a Court of
original jurisdiction, without a committal order, if it is empowered
to take cognizance either by the provisions of the Code or under
any special enactment.
59. As the controversy revolves around the construction of the
provisions contained in UAPA and NIA Act, the relevant provisions
deserve extraction, as under :-
Mrs. S.K.Talekar,PS 42/120
.. 43 .. BA-2024-2021=ba-1458-2019+ J.doc
Under UAPA :
Section 2(c), "Code" means the Code of Criminal Procedure,
1973 (2 of 1974).
Section 2(d), "Court" 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] (as it
stood before the fgure '21' was substituted by fgure '22', by Act
28 of 2019).
Section 43-D(2), with which we are materially concerned,
reads as under :
43-D. Modifed application of certain provisions of the
Code --
(1) ....
(2) Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act
subject to the modifcation that in sub-section (2),--
(a) the references to "ffteen days", "ninety
days" and "sixty days", wherever they occur, shall be
construed as references to "thirty days", "ninety days",
and "ninety days" respectively; and
(b) after the proviso, the following provisos
shall be inserted, namely:--
"Provided further that if it is not possible to
complete the investigation within the said period of
ninety days, the Court may if it is satisfed with the
report of the Public Prosecutor indicating the progress
of the investigation and the specifc reasons for the
detention of the accused beyond the said period of
ninety days, extend the said period up to one hundred
and eighty days:
Mrs. S.K.Talekar,PS 43/120
.. 44 .. BA-2024-2021=ba-1458-2019+ J.doc
Provided also that if the police offcer making
the investigation under this Act, requests, for the
purposes of investigation, for police custody from
judicial custody of any person in judicial custody, he
shall fle an affdavit stating the reasons for doing so
and shall also explain the delay, if any, for requesting
such police custody.".
NIA ACT :
The relevant provisions of the National Investigation Agency
Act, 2008 before it was amended by Act 16 of 2019, read as
under :-
2. Defnitions.--(1) In this Act, unless the context
otherwise requires,--
(a) "Agency" means the National Investigation
Agency constituted under section 3;
(b) "Code" means the Code of Criminal Procedure
1973 (2 of 1974);
....
(f) "Schedule" means the Schedule to this Act;
(g) "Scheduled Offence" means an offence specifed in
the Schedule;
(h) "Special Court" means a Court of Session
designated as Special Court under section 11 or, as
the case may be, under section 22;
Section 6 : Investigation of Scheduled Offences.--
(1) On receipt of information and recording
thereof under section 154 of the Code relating to any
Scheduled Offence the offcer-in-charge of the police
station shall forward the report to the State
Government forthwith.
(2) On receipt of the report under sub-section
(1), the State Government shall forward the report to
the Central Government as expeditiously as possible.
Mrs. S.K.Talekar,PS 44/120
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(3) On receipt of report from the State
Government, the Central Government shall
determine on the basis of information made available
by the State Government or received from other
sources, within ffteen days from the date of receipt
of the report, whether the offence is a Scheduled
Offence or not and also whether, having regard to the
gravity of the offence and other relevant factors, it is
a ft case to be investigated by the Agency.
(4) Where the Central Government is of the
opinion that the offence is a Scheduled Offence and
it is a ft case to be investigated by the Agency, it
shall direct the Agency to investigate the said
offence.
(5) Notwithstanding anything contained in
this section, if the Central Government is of the
opinion that a Scheduled Offence has been
committed which is required to be investigated
under this Act, it may, suo motu, direct the Agency
to investigate the said offence.
(6) Where any direction has been given under
sub-section (4) or sub-section (5), the State
Government and any police offcer of the State
Government investigating the offence shall not
proceed with the investigation and shall forthwith
transmit the relevant documents and records to the
Agency.
(7) For the removal of doubts, it is hereby
declared that till the Agency takes up the
investigation of the case, it shall be the duty of the
offcer-in-charge of the police station to continue the
investigation.
(8) Where the Central Government is of the
opinion that a Scheduled Offence has been
committed at any place outside India to which this
Act extends, it may direct the Agency to register the
case and take up investigation as if such offence has
been committed in India.
Mrs. S.K.Talekar,PS 45/120
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(9) For the purposes of sub-section (8), the
Special Court at New Delhi shall have the
jurisdiction.
This clause seeks to provide the manner of
investigation of the offences listed in the Schedule to
this Act. The police offcer in charge of the police
station on receipt of the report of the offence shall
forward it to the State Government which in turn to
the Central Government. If the Central Government
is of the opinion that the offence is a Scheduled
Offence, it shall direct the agency for investigation of
such offence. (Notes on Clauses).
7. Power to transfer investigation to State
Government.--While investigating any offence under
this Act, the Agency, having regard to the gravity of
the offence and other relevant factors, may--
(a) if it is expedient to do so, request the State
Government to associate itself with the
investigation; or
(b) with the previous approval of the Central
Government, transfer the case to the State
Government for investigation and trial of the offence.
....
10. Power of State Government to investigate
Scheduled Offences.--Save as otherwise provided in
this Act, nothing contained in this Act shall affect
the powers of the State Government to investigate
and prosecute any Scheduled Offence or other
offences under any law for the time being in force.
11. Power of Central Government to constitute
Special Courts.--
(1) The Central Government shall, in
consultation with the Chief Justice of the High
Court, by notifcation in the Offcial Gazette, for the
trial of Scheduled Offences, designate one or more
Courts of Session as Special Court for such area or
areas, or for such case or class or group of cases,
as may be specifed in the notifcation.
(2) Where any question arises as to the
jurisdiction of any Special Court, it shall be
Mrs. S.K.Talekar,PS 46/120
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referred to the Central Government whose decision
in the matter shall be fnal.
(3) A Special Court shall be presided over by a
Judge to be appointed by the Central Government
on the recommendation of the Chief Justice of the
High Court.
....
(6) The Central Government may, if required,
appoint an Additional Judge or Additional Judges
to the Special Court, on the recommendation of the
Chief Justice of the High Court.
(7) A person shall not be qualifed for
appointment as a Judge or an Additional Judge of a
Special Court unless he is, immediately before such
appointment, a Sessions Judge or an Additional
Sessions Judge in any State.
.....
13. Jurisdiction of Special Courts.--
(1) Notwithstanding anything contained in the
Code, every Scheduled Offence investigated by the
Agency shall be tried only by the Special Court
within whose local jurisdiction it was committed.
....
16. Procedure and powers of Special Courts.--
(1) A Special Court may take cognizance of any
offence, without the accused being committed to it
for trial, upon receiving a complaint of facts that
constitute such offence or upon a police report of
such facts.
.....
(3) Subject to the other provisions of this Act, a
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.
...
22. Power of State Government to constitute Special
Courts.--
Mrs. S.K.Talekar,PS 47/120
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(1) The State Government may constitute one or
more Special Courts for the trial of offences under
any or all the enactments specifed in the Schedule.
(2) The provisions of this Chapter shall apply to
the Special Courts constituted by the State
Government under sub-section (1) and shall have
effect subject to the following modifcations,
namely-
(i) references to "Central Government" in
sections 11 and 15 shall be construed as references
to State Government;
(ii) reference to "Agency" in sub-section (1) of
section 13 shall be construed as a reference to the
"investigation agency of the State Government";
(iii) reference to "Attorney-General for India" in sub-
section (3) of section 13 shall be construed as
reference to "Advocate-General of the State".
(3) The jurisdiction conferred by this Act on a
Special Court shall, until a Special Court is
constituted by the State Government under sub-
section (1) in the case of any offence punishable
under this Act, notwithstanding anything
contained in the Code, be exercised by the Court of
Session of the division in which such offence has
been committed and it shall have all the powers
and follow the procedure provided under this
Chapter.
(4) On and from the date when the Special Court is
constituted by the State Government the trial of
any offence investigated by the State Government
under the provisions of this Act, which would have
been required to be held before the Special Court,
shall stand transferred to that Court on the date on
which it is constituted.
60. In the light of the aforesaid fasciculus of the provisions, the
answer to the questions formulated above, is required to be
explored, keeping in view the submissions canvassed by the
Mrs. S.K.Talekar,PS 48/120
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learned counsels for the parties. First question which crops up for
consideration is the stage at which the provisions contained in the
NIA Act come into play. Is it on the registration of the FIR in
respect of the Scheduled Offences or only after NIA is entrusted
with the investigation by the Central Government, as was sought
to be urged on behalf of the respondents.
61. The thrust of the submission on behalf of the respondents
was rested on the provisions contained in section 6 of the NIA Act.
Under Chapter III, which deals with investigation by the National
Investigation Agency, two modes are prescribed by sub-sections (4)
and (5) of section 6 for directing the agency to investigate the
Scheduled Offence. Under sub-section (4), upon consideration of
the report, submitted by the State Government under sub-section
(3), the Central Government is enjoined to determine whether the
offence is the Scheduled Offence or not and also whether having
regard to the gravity of the offence and other relevant factors, it is
a ft case to be investigated by the agency.
62. Evidently, the assessment of the State Government and its
investigating agency as regards the offence being Scheduled
Offence is not the be all and end all of the matter. The Central
Mrs. S.K.Talekar,PS 49/120
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Government has to determine independently as to whether the
offences reported are Scheduled Offence or not. Only when the
Central Government forms the opinion that the offence is a
Scheduled Offence and it is a ft case to be investigated by the
agency under sub-section (4) of section 6, it is empowered to
direct the Agency to investigate the said offence. The second mode
is the exercise of a suo-motu power, irrespective of a report by the
State Government under sub-section (3) of section 6. The only
condition which is required to be satisfed is that the Central
Government is of the opinion that a Scheduled Offence has been
committed which warrants investigation by the Agency.
63. The above provisions indicating the modes in which the
National Investigation Agency can be entrusted with the
investigation do not appear to be the repository of the entire
legislative mandate to determine whether the provisions contained
in the NIA Act get attracted once the Scheduled Offence is
reported. The other provisions contained in the NIA Act weigh in.
For the removal of doubts, sub-section (7) of section 6 itself
declares, that till the NIA takes up the investigation of the case, it
shall be the duty of the offcer-in-charge of the police station to
continue the investigation. Section 10 of the NIA Act sheds further
Mrs. S.K.Talekar,PS 50/120
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light on the legislative intent. It declares in emphatic terms that,
save as otherwise provided under the said Act, nothing contained
in the said Act shall affect the powers of the State Government to
investigate and prosecute any Scheduled Offence or other offences
under any law for the time being in force.
64. Two factors are of salience. One, the legislature has taken
care to use the expression, "Scheduled Offence" in addition to
"other offences". Two, under sub-section (7) of section 6, a duty is
cast on the offcer-in-charge of the police station to continue the
investigation into the offences till the Agency takes up the
investigation. In contrast, section 10 saves the power of the State
Government to investigate Scheduled Offence, save as otherwise
provided by the NIA Act. The intendment to the contrary is to be
found in sub-section (6) of section 6 which ordains that where any
direction is given under sub-section (4) or sub-section (5), the
State Government and any police offcer of the State Government,
investigating the offence, shall not proceed with the investigation
and shall forthwith transmit the relevant documents and records
to the Agency.
Mrs. S.K.Talekar,PS 51/120
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65. A conjoint reading and harmonious construction of the
provisions contained in section 6 and section 10 of the NIA Act
lead to a legitimate inference that till the National Investigation
Agency takes up the investigation of the case (necessarily
involving a Scheduled Offence), the State Government is not
divested of the authority to investigate and prosecute any
Scheduled Offence. However, once the National Investigation
Agency takes up the investigation, the authority of the State and
its investigating agency to investigate into and prosecute said
offences ceases.
66. Another provision, which bears upon this issue is the power
of the State Government under section 22(1) of the NIA Act to
constitute Special Courts. It provides that the State Government
may constitute one or more Special Courts for the trial of offences
under any or all the enactments specifed in the Schedule. Sub-
section (2) further provides that the provisions of Chapter IV,
which prescribes special procedure, within the meaning of section
4(2) of the Code, shall apply to the Special Courts constituted by
the State Government subject to following modifcations :
Mrs. S.K.Talekar,PS 52/120
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(i) references to "Central Government" in
sections 11 and 15 shall be construed as
references to State Government;
(ii) reference to "Agency" in sub-section (1) of
section 13 shall be construed as a reference to the
"investigation agency of the State Government";
(iii) reference to "Attorney-General for India" in
sub-section (3) of section 13 shall be construed as
reference to "Advocate-General of the State".
67. If the provisions of section 22(1) of the NIA Act are read in
conjunction with the provisions contained in section 10 of the NIA
Act which empowers the State Government to investigate
Scheduled Offences, the intent of the legislature to not only
empower the State Government to investigate and prosecute any
of the Scheduled Offence but also to constitute Special Courts for
the trial of offences under any or all the enactments specifed in
the Schedule, becomes explicitly clear. If we keep in view the
legislative object as refected in the statement of objects and
reasons namely, establishment of a National Investigation Agency
in a concurrent jurisdictional framework, then the aforesaid
proposition gains credence. The scheme of the NIA Act evinces a
clear intendment that the investigation into the Scheduled
Offences was not envisaged as the exclusive domain of the
Mrs. S.K.Talekar,PS 53/120
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National Investigation Agency trampling upon the powers of the
State Government to investigate and prosecute the Scheduled
Offences, for the States have the legislative competence under List
II Entry 2 of the Seventh Schedule. Undoubtedly, where, the NIA
takes up the investigation of a Scheduled Offence, the State power
must yield to the wisdom of the Parliament.
68. For the foregoing reasons, we are afraid to accede to the
submission on behalf of the respondents that the provisions
contained in NIA Act come into play only when the NIA takes up
the investigation.
69. As indicated above, the respondents draw support and
sustenance to the aforesaid submissions from the provisions
contained in section 7 of the NIA Act and number of
pronouncements of the High Courts, including this Court, based
thereon.
70. We thus propose to deal with the submission that the
Special Court constituted by the State Government under section
22(1) of the NIA Act gets jurisdiction only when a case is
Mrs. S.K.Talekar,PS 54/120
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transferred to the State Government by the NIA for investigation
and trial under section 7(b) of the NIA Act.
71. A Full Bench judgment of the Patna High Court in the case
of Bahadur Kora (Supra) constitutes the linchpin of the aforesaid
proposition, sought to be canvassed on behalf of the respondents.
Bahadur Kora (Supra) arose in the backdrop of a judgment
rendered by a Division Bench of the Patna High Court in the case
of Asif P.K. Vs. State of Bihar 19
to the effect that wherever an
allegation referable to the provisions of UAPA is made against the
accused, the procedure prescribed under the NIA Act must be
followed and even if the cognizance of offences was taken in
accordance with the provisions of the Code and the investigation
was carried out by the State Investigating Agencies, and not by
the National Investigation Agency (NIA), the trial of such offences
shall be conducted by the Court of Sessions, as provided for
under sub-section (3) of section 22 of the NIA Act, even if no
Special Court is constituted by the State under sub-section-(1)
thereof.
19 2015 (1) Pat LJR 1017
Mrs. S.K.Talekar,PS 55/120
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72. Doubting the correctness of the aforesaid view, the matter
came to be referred to the Full Bench. After adverting to the
Statement of objects for enactment of the NIA Act and the
provisions contained in the NIA Act, especially sections, 6, 7, 10,
13 and 22 of the NIA Act, the Full Bench observed inter-alia that
the Division Bench lost sight of section 7 of the NIA Act, which is
the only provision that provided the link between the NIA on the
one hand, and the investigating agency of the State on the other
hand. The Full Bench endeavoured to elucidate the purpose
behind incorporating section 22 of the NIA Act which enables the
State Government to constitute Special Courts. Observations in
paragraphs 28 to 31 are material and hence extracted below :
"28 It has been mentioned at the threshold itself
that the objective of the Act is not to make the offences
punishable under the Acts mentioned in the schedule
thereof, triable, invariably and exclusively by the N.I.A.,
or for that matter, the special courts constituted under
it. It is only when the offences are entrusted for
investigation to the N.I.A. that they become triable by
the special courts. A serious doubt may arise that if
N.I.A. alone is the competent authority to investigate the
scheduled offences, albeit entrusted to it by the Central
Government, under Section 6 of the Act, where is the
occasion for the State Government to create special
courts under Section-22 of the Act, or for that matter, to
equate the investigating agency of the State with the
N.I.A. under Sub-section (2) thereof. The answer is
readily available in Section-7 of the N.I.A. Act. It reads:
" 7. While investigating any offence under
this Act, the Agency, having regard to the
gravity of the offence and other relevant
factors, may--
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(a) if it is expedient to do so, request
the State Government to associate
itself with the investigation;
or
(b) with the previous approval of the
Central Government, transfer the case
to the State Government for
investigation and trial of the offence."
29 We have already observed that Section-6
happens to be the fulcrum, or basis to bring any
particular case within the ambit of the Act, and for
entrustment of its investigation to the N.I.A. It is then,
that the special courts come into picture. The N.I.A. is
not given the freedom, much less conferred with the
power, to investigate any case of its choice. It is only
when the Central Government entrusts such cases to it,
that the agency, i.e. the N.I.A., can investigate the cases.
In other words, the N.I.A. does not have the power to
investigate by itself, a case, even if it involves a scheduled
offence referable to the Acts mentioned in the schedule.
It has to wait till the case is entrusted to it by the Central
Government.
30 Section 7 deals with situation, posterior to the
entrustment of the case to N.I.A. under Section 6 of the
Act. Once a case is entrusted to it, the N.I.A. may
undertake the investigation, exclusively, by itself, or may
request the State Government, to associate with it. It
may also transfer the case to the State Government for
investigation, depending on the facts of the case and
with the previous approval of the Central Government. It
is then, and then alone, that the State Government
comes into picture for conducting investigation of the
cases under the N.I.A. Act. Barring that, the State
Government or its investigating agency does not have
any authority, or discretion to choose or pick up cases in
which offences under the enactments mentioned in the
schedule are alleged; for investigation under the N.I.A.
Act.
31 Once a case is "transferred" under Clause-(b) of
Section 7 of the Act, by the N.I.A. to the investigating
agency of the State Government, the later gets equated
to the former, under Section-22(2)(ii) and acquires the
power to investigate such matters under the Act. It is
only for trial of such cases, that were initially entrusted
to the N.I.A., under Section 6 by the Central
Government and the N.I.A. in turn "transfers" the
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investigation of the case to the investigating agency of
the State Government, under Section 7(b) of the Act,
that the constitution of special court under Section-22
of the N.I.A. Act is provided for.
(emphasis supplied)
73. Observing thus, the Full Bench answered the reference ,
inter-alia, as under :
"46 We, therefore, hold that, (A) the judgment in
Aasif‟s case (supra), insofar as it held that investigating
agency of the State Government can investigate and try
offences in accordance with the provisions of the N.I.A.
Act, in the cases where offences punishable under the
Unlawful Activities (Prevention) Act are alleged, and that
such cases must be tried by the Courts of Sessions under
Sub- section (3) of Section-22 of the N.I.A. Act, cannot be
said to have laid the correct law;
(B) the cases even where offences punishable under
the provisions of U.A.P. Act are alleged shall be tried by
the courts as provided for under the Cr.P.C. and not in
accordance with the special procedure, under the Act
unless (i) the investigation of such cases is entrusted by
the Central Government to the N.I.A. and (ii) the N.I.A.
transfers the same to the investigating agency of State
Government."
(emphasis supplied)
74. Evidently, the Full Bench has laid down in unambiguous
terms that the offences punishable under the provisions of UAPA
shall be tried by the Court, as provided for under the Code and
not in accordance with the special procedure under the NIA Act
unless, (i) the investigation of such cases is entrusted by the
Central Government to the NIA; and (ii) the NIA transfers the
same to the investigating agency of State.
Mrs. S.K.Talekar,PS 58/120
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75. The judgment in the case of Bahadur Kora (Supra) was
followed with approval by a Division Bench of this Court in the
case of Naser Bin Abu Bakr Yafai (Supra). Since a very strong
reliance was placed by both Mr. Kumbhakoni and Mr. Anil Singh,
on the proposition enunciated in the case of Naser Bin Abu Bakr
Yafai (Supra), it may be advantageous to note the factual backdrop
to appreciate the enunciation correctly.
76. In the said case, the petitioner, Naser was arraigned for the
offences punishable under sections 120B, 471 of the Penal Code
and sections 13, 16, 18, 18-B, 20, 38 and 39 of the UAPA and
sections 4, 5 and 6 of the Explosive Substances Act 1908 which
arose out of C.R. No. 8 of 2006, registered with Kala Chowki Police
Station, Mumbai, pursuant to the FIR lodged by Police Inspector
ATS, Nanded Unit, Nanded. The petitioner was arrested by the
ATS (State Investigation Agency). Post completion of investigation,
the ATS fled charge-sheet before the learned Chief Judicial
Magistrate, Nanded, on 7th October 2016. Cognizance of the
offence was taken by the learned Chief Judicial Magistrate, and
the case was committed to the Court of Additional Sessions Judge
and Special Judge, ATS, on 18 th October 2016. In the meanwhile,
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on 8th September 2016, the Central Government, in exercise of
powers under section 6(4) of the NIA Act, directed NIA to take over
further investigation into the said case. Pursuant thereto, on 14 th
September 2016, the NIA renumbered the said crime as RC-
03/16/NIA/Mumbai. By a communication dated 23rd November
2016, the NIA sought transfer of the case papers in the said crime
and those were handed over to the NIA on 8th December 2016.
77. During the period of the said transition, the petitioner fled
an application before the Special Judge, ATS, Nanded seeking his
release on the ground that the offences under UAPA, being
Scheduled Offences under the NIA Act, the Magistrate had no
jurisdiction to pass remand order or to take cognizance of the
offence. The jurisdiction of the learned Special Judge, ATS,
Nanded to try the case was also called in question. The learned
Special Judge, ATS, Nanded dismissed the application opining
that since NIA had not taken over the investigation from ATS, the
latter was competent under section 6(7) of the NIA Act to
investigate the crime and fle the charge-sheet in the Court of
Chief Judicial Magistrate, Nanded.
Mrs. S.K.Talekar,PS 60/120
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78. In the backdrop of the aforesaid facts, the Division Bench,
after adverting to the provisions contained in sections 6 and 7 of
the NIA Act, enunciated the legal position as under :
"16 Once the Central Government entrusts the
investigation of the scheduled offences to the NIA, and the
NIA chooses to exercise the option of investigating the offence
by itself or in association with the State Government, then
such offence is exclusively triable by Special Court
constituted by the Central Government under Section 11 of
the NIA Act. Whereas, the cases transferred to the State
Government in exercise of powers of Section 7(b) of the NIA
Act are triable by a Special Court constituted under Section
22 of the NIA Act. Until the State Government constitutes
such a Special Court, by virtue of Sub-section (3) of Section
22, the jurisdiction conferred by this Act on a Special Court
shall be exercised by the Court of Sessions within whose
jurisdiction the offence is committed and it shall have all the
powers and follow the procedure provided under Chapter 4 of
the Act. However, once the State Government constitutes the
Special Court, the trial of the offences investigated under the
provisions of the Act would stand transferred to that court on
the date on which it is constituted.
....
23 It is therefore evident that the NIA had taken over the
investigation on 8.12.2016. Till such taking over of the
investigation, in terms of subsection (7) of Section 6 the ATS
was under obligation to continue with the investigation. It is
not in dispute that the ATS Mumbai had obtained remand,
continued with investigation, and fled chargesheet prior to
8.12.2016 i.e. prior to taking over investigation by NIA. Suffce
it to say that by virtue of provisions under sub Section (7) of
Section 6 the ATS had jurisdiction to continue with the
investigation till 8.12.2016.
79. The Division Bench adverted to another aspect, which bears
upon the controversy at hand. Whether the offences under the
UAPA, being Scheduled Offences, are exclusively triable by a
Special Court constituted by the State under section 22 of the NIA
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Act. The Division Bench answered the question in the negative,
observing as under :
"24. The next question that falls for our
determination is whether the offences under the UAP
Act, being scheduled offences are exclusively triable by a
special court constituted by the State under section 22
of the NIA Act. It may be noted that UPA Act was enacted
in the year 1967 and the scope of this Act was enlarged
by amendment of the years 2004, 2008 and 2013 to
provide for the more effective prevention of certain
unlawful activities of individual and associations and
dealing with terrorists activities and for matters
connected therewith. Under this Act, the State and
Central Government are conferred with the powers to
declare certain associations whose activities are found to
be a threat to the sovereignty of the State as unlawful.
The acts undertaken by such prohibited associations are
made punishable under this Act. Chapter 3 and 4 of the
UAP Act prescribes the punishment for the offences
mentioned therein. It is to be noted that this Act does
not prescribe any special procedure to be followed for
trial of the offence defned therein. Unlike NIA Act, it
does not provide for creation of any special Court. Thus,
the essential difference between NIA Act and UAP Act is
that NIA Act does not classify any act as an offence, but
only creates a separate agency for investigation and a
special court for trial of scheduled offences, whereas
UAP Act, which is also listed in the schedule of NIA Act,
defnes certain acts as offences but does not prescribe
special procedure and creation of special court.
25. A reading of both these enactments particularly
Section 10 of the NIA Act would show that there is no
embargo on the State Investigation Agency to investigate
the scheduled offence, which would include offences
under UAP Act. In fact, the NIA would have no power to
investigate the scheduled offence until and unless the
Central Government takes a decision and directs the
NIA to take over the investigation. In the absence of
such decision and entrustment, it is primarily the duty
of the State Investigation Agency to investigate the
scheduled offence including offences under UAP Act.
Mrs. S.K.Talekar,PS 62/120
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26. Furthermore, the provisions of both the
enactments, particularly Section 2(d) of the ULP Act,
which defnes "Court", makes it clear that the offences
under UAP Act which are investigated by the State
Investigation Agency are triable by the criminal courts
having jurisdiction under the Code, in accordance with
the procedure provided under the Code. It is only when
the Central Government takes a decision and entrusts
the investigation to the NIA, that the jurisdiction of the
criminal court shall stand excluded and the Special
Court constituted under the NIA Act will get jurisdiction
to try such scheduled offences.
(emphasis supplied )
80. The support was sought to be drawn to the aforesaid view by
placing reliance on the Full Bench judgment of the Patna High
Court in the case of Bahadur Kora (Supra). It was thus
enunciated that in the absence of any decision and direction of
the Central Government to the NIA to investigate the Scheduled
Offence, the State Investigation Agency was competent to
investigate the said offence in accordance with the procedure
prescribed under the Code and the Criminal Court had
jurisdiction to try the offences in accordance with the procedure
prescribed under Code.
81. We must note that during the course of the submissions, we
were informed that a challenge to the aforesaid decision in the
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case of Naser Bin Abu Bakr Yafai (Supra) was subjudice before
the Supreme Court. We will advert to the judgment of the
Supreme Court in the case of Naser Bin Abu Bakr Yafai Vs. The
, which was delivered on 20th October
2021, a little later.
82. The learned Advocate General next relied upon the judgment
of the another Division Bench in the case of Mr.Areeb S/o Ejaj
Majeed (Supra). In the said case, the petitioner therein was
arrested on 29th November 2014 in connection with FIR No.RC-
01/2014/NIA/MUM, registered by NIA for the offences punishable
under sections 16, 18 and 20 of UAPA and section 125 of the
Penal Code. Since the investigation could not be completed within
90 days of the date of the frst remand, on 16 th February 2015, the
NIA preferred an application before the Special Court NIA under
section 43-D(2) of UAPA. On 24th February 2015, when the
petitioner was produced before Court, the Special Judge presiding
over that Court was on leave and the the application seeking
extension of the period of detention was placed before the
Additional Sessions Judge and the application came to be allowed
and the period of detention came to be extended by 30 days from
20 Criminal Appeal No. 1165 of 2021 with
Criminal Appeal No. 1166 of 2021, dt. 20th October 2021.
Mrs. S.K.Talekar,PS 64/120
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26th February 2015. The petitioner preferred an application for
default bail under section 167(2) of the Code read with section 43-
D(2)(b) of the UAPA contending that since the Special Court was
constituted under section 11 of the NIA Act, the ordinary Court of
Session could not have entertained the application for extension of
the period of detention, and, thus, the detention of the petitioner
beyond 25th February 2015 was illegal.
83. In the light of the aforesaid fact-situation, the Division
Bench posed unto itself a question as to whether the various
powers exercised by a Court during the stage of information to the
police and investigation of the offence could, in the said case, be
only exercised by a Special Court or even a Court of Session was
empowered to exercise them? The Division Bench, after
considering the provisions of the Code and UAPA, drew a
distinction between the proceedings at 'pre-trial stage' and the
'trial', and observed that the exercise of powers at pre-trial stage,
i.e. remand of the accused and extension of the period of custody
pending fling of a charge-sheet, which are pre-trial powers, are
exercised by the Court both, under the provisions of the Code and
by virtue of the provisions of the UAPA. UAPA defnes "Court" as a
Mrs. S.K.Talekar,PS 65/120
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"Criminal Court having jurisdiction, under the Code, to try
offences under that Act and includes a Special Court constituted
under Section 11 or under Section 22 of the National Investigation
Agency Act, 2008". The offences with which the Division Bench
was concerned therein, namely, offences punishable under
sections 16, 18 and 20 of the UAPA and Section 125 of Penal
Code, being triable under the Code by a Court of Session, the
latter was empowered to exercise all the aforesaid powers.
84. The learned Advocate General laid emphasis on the
observations made by the Division Bench in paragraph Nos. 8 and
9, which read as under :
"8. Now the question is, because a scheduled
offence under the UAP Act investigated by NIA is
triable exclusively by a Special Court constituted
under the NIA Act, is an ordinary Court of Session
prohibited from exercising the powers of detention,
remand and extension of custody for fling of a
charge-sheet under the UAP Act read with the Code
so far as the Petitioner is concerned. In the frst
place, as of the date of the application for extension
of time for fling of the charge-sheet, the
investigation was not accomplished. There is no
warrant for concluding that the offence was one
which was investigated by NIA and thus, exclusively
triable by the Special Court. At this stage, NIA itself
has an option, under Section 7 of the NIA Act, to
investigate the offence and prosecute the accused
or transfer the case to the State Government for
investigation and trial of the offences. Then, of
course, the State Government itself has powers to
investigate and prosecute the offences, which are
Mrs. S.K.Talekar,PS 66/120
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not affected by anything contained in the NIA Act
save as otherwise provided by that Act. The matter
is, in other words, in fux and it cannot be said
with any certainty that the offences are triable only
by the Special Court constituted under Section 11
of the NIA Act. Secondly, powers under the UAP
Act, which include the pre-trial power of extension
of the custody of the accused for fling of the
charge-sheet beyond the statutory period of ninety
days under the proviso to Section 167(2) of the
Code, can be exercised by 'Court' defned as a
'criminal court having jurisdiction, under the Code,
to try offences under this Act' (i.e. the UAP Act).
Merely because such court includes a Special
Court constituted under the NIA Act, there is
nothing in the UAP Act to prevent an ordinary
criminal court, which could try the offences under
the Code, from exercising these powers. Thirdly,
when the State Government itself has power to
investigate the offence and prosecute the accused
and in that case a Special Court appointed by the
State Government under Section 22 of the NIA Act
would have the jurisdiction to do everything
including trying and fnally convicting the accused,
the jurisdiction of such Special Court can under
sub-section (3) of Section 22 be exercised by the
Court of sessions until such Special Court is
constituted by the State Government under sub-
section (1) of Section 22. (The State Government
has not constituted such Special Court as of date.)
9. Considering this position, the Sessions Judge,
who was actually holding the charge of the Special
Court (constituted by the Central Government
under Section 11 of the NIA Act), was well within
his powers to act under Section 43-D(2)(b) of the
UAP Act read with Section 167(2) of the Code and
extend the custody of the Petitioner beyond the
statutory period of ninety days.
(emphasis supplied)
Mrs. S.K.Talekar,PS 67/120
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85. Our attention was also invited to a Division Bench judgment
of Delhi High Court in the case of Aqil Hussain Vs. State of NCT of
Delhi and Ors. (Supra). In the said case, the Division Bench
repelled the submission on behalf of the petitioner therein that
only a Special Court constituted under section 11, or under
section 22 of the NIA Act is the Criminal Court having jurisdiction
to try offences under the UAPA. The Delhi High Court enunciated
the position as under :
"23 Special Court" is defned in Section 2(1)(h) to mean
"a Court of Session designated as Special Court under
section 11 or, as the case may be, under section 22." Section
22 of the NIA Act empowers the State Government to
designate one or more Courts of Session as Special Courts
for the trial of offences under any or all the enactments
specifed in the Schedule. Thus, the submission is that the
Special Courts constituted either under Section 11, or
Section 22 of the NIA Act alone can try scheduled offences
which are "investigated by the Agency". It does not follow
that even those scheduled offences which are not assigned to
the NIA by the Central Government, would be tried by the
Special Courts constituted either under Section 11 or
Section 22 of the NIA Act. Mr. Lekhi submits the "Court"
defned in Section 2(1)(d) of the UAPA 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 (34 of 2008)". Therefore, it is
not correct for the petitioner to claim that only a Special
Court constituted under Section 11, or under Section 22 of
the NIA Act is the Criminal Court having jurisdiction to try
offences under the UAPA.
....
34. Reliance placed by Mr. Pracha on the NIA Act is
completely misleading and is a red herring. As we have
noticed hereinabove, the NIA Act primarily is an Act to
constitute the National Investigation Agency, and to provide
for trial of cases entrusted to and investigated by the NIA in
Mrs. S.K.Talekar,PS 68/120
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respect of scheduled offences, by a Special Court. In the
present case, it is not even the petitioner's submission that
the Central Government has entrusted the investigation of
the case registered against the detenue Gulfsha Fatima
under UAPA to the NIA. The UAPA does not state that all
cases under the said act necessarily have to be investigated
by the NIA. .........."
86. As is evident, the pronouncements in the aforesaid cases
were made in diverse sets of facts. However, two common threads
are discernible in this line of decisions. One, Courts constituted
under section 22(1) of the NIA Act, by the State Government, do
not get jurisdiction to try the Scheduled Offences, unless the NIA
transfers the investigation under section 7(b) of the NIA Act and
until the NIA takes over the investigation or after being entrusted
with investigation subsequently transfers the investigation to the
State Investigation Agency (NIA), all the Scheduled Offences shall
be tried by the Courts having jurisdiction under the Code. Two, in
view of the defnition of the Court under section 2(d) of the UAPA,
the Criminal Courts having jurisdiction under the Code, to try the
offences are competent to extend the period of detention under the
frst proviso in sub-section (2) of section 43-D of UAPA.
87. At this juncture, the reference to the judgment of the
Supreme Court in the case of Bikramjit Singh (Supra) assumes
signifcance. Bikramjit was arraigned for the offences punishable
Mrs. S.K.Talekar,PS 69/120
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under sections 302, 307, 452, 427, 341 read with 34 of the Penal
Code, section 25 of the Arms Act, 1959, sections 3, 4, 5 and 6 of
the Explosive Substances Act, 1908, and section 13 of the UAPA.
The Punjab State Police apprehended him on 22 nd November 2018.
The 90 days period of detention expired on 21 st February 2019.
The appellant applied for default bail in the Court of Sub-
Divisional Judicial Magistrate, Ajnala. The said application was
dismissed on 25th February 2019 on the ground that the learned
Sub-Divisional Judicial Magistrate had already extended time
from 90 days to 180 days under Section 167 of the Code read with
section 43-D(2) of UAPA, by an order dated 13 th February 2019. In
a revision preferred against the said order of extension of period of
detention, the learned Additional Sessions Judge, who was
presiding over the Special Court, constituted under the NIA Act,
set aside the order of learned Magistrate extending the period of
detention, by a judgment and order dated 25 th March 2019. On
the very next day, i.e., 26th March 2019, a charge-sheet was fled
before the learned Special Judge. In the meanwhile, the revision
petition preferred by the petitioner against the order dated 25 th
February 2019 passed by learned Magistrate, declining to release
the petitioner on default bail, was dismissed by the learned
Mrs. S.K.Talekar,PS 70/120
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Special Judge on 11th April 2019 opining that, since the charge-
sheet had already been presented, the revision petitioner lost his
right for default bail under section 167 (2) of the Cr.P.C. The
Punjab Haryana High Court found no merit in the petition in
which the aforesaid order was assailed. The High Court observed
inter-alia as under :
"23 A joint interpretation of Section 167 (2) Cr.P.C.
read with Section 43 (d) UAP Act, Section 6, 13 & 22 of
NIA Act would show that in case the investigation is
being carried out by the State police, the Magistrate
will have power under Section 167 (2) Cr.P.C. read with
Section 43 (a) of UAP Act to extend the period of
investigation upto 180 days and then, commit the case
to the Court of Sessions as per provisions of Section
209 Cr.P.C., whereas in case the investigation is
conducted by the agency under the NIA Act, the power
shall be exercised by the Special Court and challan will
be presented by the agency before the Special Court.
....
25 It is not case of the petitioner that the
investigation was conducted by the agency under
Section 6 of the NIA Act and till committal of the case
to the Court of Sessions, as per Section 22 (3) of NIA
Act, it cannot be said that the Magistrate has no power
and therefore, the order dated 25.03.2019 suffers from
illegal infrmity."
(extracted in Paragraph No.5 of
the judgment of Bikramjit)
88. The Supreme Court adverted to the relevant provisions of
UAPA, especially the defnition of 'Court' under section 2(d) and
section 43-D(2) and observed that a cursory reading of those
provisions would show that offences under the UAPA under
Mrs. S.K.Talekar,PS 71/120
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sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B, 22-C and 23, being
offences which contain maximum sentences of over 7 years, would
be exclusively triable by a Court of Session when read with Part II
of the First Schedule to the Code. It is only after the NIA Act was
enacted that the defnition of "Court" was extended to include
Special Courts that were set up under section 11 or section 22 of
the NIA Act.
89. The Supreme Court, thereafter, analyzed the provisions of
the NIA Act and postulated in explicit terms that scheme of NIA
Act is that the offences under the enactments contained in the
Schedule to the Act are now to be tried exclusively by Special
Courts set up under that Act. These may be set up by the Central
Government under section 11 or by the State Government under
section 22 of the NIA Act.
90. Since in the said case, like the case at hand, the Special
Courts were constituted by the State of Punjab under section 22
of the NIA Act, the Supreme Court expounded the consequences
which emanate from the said fact of constitution of Special Courts
by the State Government under section 22. The observations of
Mrs. S.K.Talekar,PS 72/120
.. 73 .. BA-2024-2021=ba-1458-2019+ J.doc
the Supreme Court in paragraphs 23 to 26 are instructive and
hence extracted below :
"23 It will be seen that the aforesaid notifcation has
been issued under Section 22(1) of the NIA Act. What is
important to note is that under Section 22(2)(ii), reference to
the Central Agency in Section 13(1) is to be construed as a
reference to the investigation agency of the State Government
- namely, the State police in this case. Thereafter, what is
important to note is that notwithstanding anything contained
in the Code, the jurisdiction conferred on a Special Court
shall, until a Special Court is designated by the State
Government, be exercised only by the Court of Sessions of the
Division in which such offence has been committed vide sub-
section (3) of Section 22; and by sub-section (4) of Section 22,
on and from the date on which the Special Court is designated
by the State Government, the trial of any offence investigated
by the State Government under the provisions of the NIA Act
shall stand transferred to that Court on and from the date on
which it is designated.
24 Section 13(1) of the NIA Act, which again begins with a
non-obstante clause which is notwithstanding anything
contained in the Code, read with Section 22(2)(ii), states that
every scheduled offence that is investigated by the investigation
agency of the State Government is to be tried exclusively by
the Special Court within whose local jurisdiction it was
committed.
25 When these provisions are read along with Section
2(1)(d) and the provisos in 43-D(2) of the UAPA, the Scheme of
the two Acts, which are to be read together, becomes crystal
clear. Under the frst proviso in Section 43-D(2)(b), the 90 day
period indicated by the frst proviso to Section 167(2) of the
Code can be extended up to a maximum period of 180 days if
"the Court" is satisfed with the report of the public
prosecutor indicating progress of investigation and specifc
reasons for detention of the accused beyond the period of 90
days. "The Court", when read with the extended defnition
contained in Section 2(1)(d) of the UAPA, now speaks of the
Special Court constituted under Section 22 of the NIA Act.
What becomes clear, therefore, from a reading of these
provisions is that for all offences under the UAPA, the Special
Court alone has exclusive jurisdiction to try such offences.
This becomes even clearer on a reading of Section 16 of the
NIA Act which makes it clear that the Special Court may take
cognizance of an offence without the accused being committed
to it for trial upon receipt of a complaint of facts or upon a
police report of such facts. What is equally clear from a
Mrs. S.K.Talekar,PS 73/120
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reading of Section 16(2) of the NIA Act is that even though
offences may be punishable with imprisonment for a term not
exceeding 3 years, the Special Court alone is to try such
offence - albeit in a summary way if it thinks it ft to do so. On
a conspectus of the abovementioned provisions, Section 13
read with Section 22(2)(ii) of the NIA Act, in particular, the
argument of the learned counsel appearing on behalf of the
State of Punjab based on Section 10 of the said Act has no
legs to stand on since the Special Court has exclusive
jurisdiction over every Scheduled Offence investigated by the
investigating agency of the State.
26 Before the NIA Act was enacted, offences under the
UAPA were of two kinds - those with a maximum
imprisonment of over 7 years, and those with a maximum
imprisonment of 7 years and under. Under the Code as
applicable to offences against other laws, offences having a
maximum sentence of 7 years and under are triable by the
Magistrate's Courts, whereas offences having a maximum
sentence of above 7 years are triable by Courts of Sessions.
This Scheme has been completely done away with by the
2008 Act 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. In the absence of any designated Court by
notifcation issued by either the Central Government or the
State Government, the fall back is upon the Court of Sessions
alone. Thus, under the aforesaid Scheme what becomes clear
is that so far as all offences under the UAPA are concerned,
the Magistrate's jurisdiction to extend time under the frst
proviso in Section 43-D(2)(b) is non-existent, "the Court"
being either a Sessions Court, in the absence of a notifcation
specifying a Special Court, or the Special Court itself. The
impugned judgment in arriving at the contrary conclusion is
incorrect as it has missed Section 22(2) read with Section 13
of the NIA Act. Also, the impugned judgement has missed
Section 16(1) of the NIA Act which states that a Special Court
may take cognizance of any offence without the accused being
committed to it for trial inter alia upon a police report of such
facts."
(emphasis
supplied)
91. The aforesaid enunciation of law, in our understanding, is
based on a conjoint reading of the provisions contained in
Mrs. S.K.Talekar,PS 74/120
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sections 13, 16, and 22 of the NIA Act, on the one hand, and the
reading of the provisions contained in section 2(1)(d) and section
43-D(2) of UAPA in juxtaposition with the provisions of NIA Act, on
the other hand. The Supreme Court further considered the
scheme of the two Acts together and culled out the legal position.
92. In our view, the following propositions emerge from the
aforesaid pronouncement in the case of Bikramjit Singh (Supra):
(1) Once the State Government constitutes
the Courts in exercise of the enabling power under
section 22(1) of the NIA Act, the provisions contained
in Chapter IV of the NIA Act dealing with Special
Courts apply to such Court with modifcations
referred to in clauses (i) to (iii) of sub-section (2) of
section 22. Resultantly, every Scheduled Offence
investigated by the State Investigation Agency, shall
be tried by the Special Courts set up by the State
Government under section 22(1).
(2) The non-obstante clause contained in
section 13(1) of the NIA Act which confers exclusive
jurisdiction on the Special Courts constituted by the
Mrs. S.K.Talekar,PS 75/120
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Central Government under section 11 of the NIA Act
applies with equal force to the Court constituted by
the State Government under section 22 with the
change that the Scheduled Offence being
investigated by the State Investigation Agency.
(3) The non-obstante clause contained in sub-
section (3) of section 22 of the NIA Act mandates
that notwithstanding anything contained in the
Code, until a Special Court is designated by the
State Government under sub-section (1), the
jurisdiction conferred by the said Act on a Special
Court shall be exercised by the jurisdictional Court
of Session.
(4) Once a Special Court is constituted by the
State Government under section 22(1) of the NIA Act,
the trial of nay offence investigated by the State
Investigation Agency under the provisions of the NIA
Act, shall stand transferred to the Special Courts so
constituted under section 22(1) on and from the date
on which it is constituted.
Mrs. S.K.Talekar,PS 76/120
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(5) The 'Court' defned under section 2(1)(d) of
the UAPA now refers to the Special Court constituted
under section 22 of the NIA Act and for all offences
under UAPA, the Special Court alone has exclusive
jurisdiction to try such offences.
(6) The regime which prevailed under the
UAPA, before the NIA Act, namely, the jurisdiction to
try the offences punishable with maximum
imprisonment of more than 7 years vested with the
Court of Sessions and for the offences punishable
with maximum imprisonment of not more than 7
years vested with the Magistrate, has been
completely done away with under NIA Act, 2008 as
all Scheduled Offences are to be tried exclusively by
the Special Courts under the NIA Act, whether
investigated by the National Investigation Agency or
the investigation agency of the State Government.
(7) In view of the provisions contained in
section 13(1) of the NIA Act, if the Scheduled Offence
is investigated by the NI Agency, it must be tried only
Mrs. S.K.Talekar,PS 77/120
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by the Special Court set up by the Central
Government under section 11 of the NIA Act.
(8) In case the investigation is carried out by
the State Investigation Agency into a Scheduled
Offence, the trial shall be held by the Special Court
constituted by the State Government under section
22(1) of the NIA Act, if available.
In the absence of such Special Court
constituted under section 22(1) of the NIA Act, the
trial shall be held before a Court of Session under
section 22(3) of the NIA Act.
(9) Lastly, so far as all offences under UAPA,
the Magistrate has no jurisdiction to extend the
period of detention under the frst proviso to section
43-D(2) of UAPA. The Court competent to do so is the
Special Court set up either under section11 or 22 of
the NIA Act and, in the absence thereof, the
jurisdictional Court of Session.
93. It is imperative to note that in the case of Bikramjit Singh
(Supra), a submission was sought to be canvassed on behalf of
the State Government that in view of the provisions contained in
Mrs. S.K.Talekar,PS 78/120
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section 10 of the NIA Act, the power of the State Government to
investigate into a Scheduled Offence was intact and, therefore, the
learned Magistrate had the jurisdiction to extend the period of
detention. The Supreme Court repelled the aforesaid submission
holding that on a conspectus of the provisions of NIA Act and
UAPA, section 13 read with section 22(1)(ii) of the NIA Act, in
particular, the argument on behalf of the learned counsel
appearing on behalf of the State of Punjab based on section 10 of
the said Act has no legs to stand on since the Special Court has
exclusive jurisdiction over every Scheduled Offence investigated by
the investigating agency of the State. Bikramjit Singh (Supra) thus
constitutes a complete answer to the submission on behalf of the
respondents that the Court envisaged by the provisions contained
in section 43-D(2) read with section 2(d) of UAPA, continues to be
the Court having jurisdiction under the Code. The overriding
provisions contained in section 13 of the NIA Act, which gets
implanted under section 22(2)(ii) of the NIA Act, and thereby
equates the State Investigation Agency with the National
Investigation Agency, for the purpose of conferring exclusive
jurisdiction to a Court constituted under section 22(1) of the NIA
Act coupled with the overriding provisions of section 22(3) of the
Mrs. S.K.Talekar,PS 79/120
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NIA Act constituting the Court of Session as a residuary Court in
the absence of a Special Court under section 22(1), completely
divest the jurisdiction of ordinary criminal courts under the Code.
To put it in other words, the expression, "a Criminal Court having
jurisdiction under the Code" stands subjugated by the overriding
provisions contained in sections 13, 22(2)(ii) and (3) of the NIA
Act.
94. Mr. Kumbhakoni, the learned Advocate General made a
strenuous effort to persuade us to hold that the pronouncement
in the aforesaid case of Bikramjit Singh (Supra) does not govern
the facts of the case. A painstaking effort was made to draw
distinction on the factual score. It was submitted that the order
passed by the learned Special Judge in the case of Bikramjit
Singh (Supra), dated 25th March 2019, setting aside the order
passed by the Magistrate extending the period of detention was
never challenged by the State Government. Secondly, the
challenge before the High Court was on the premise that despite
setting aside the order passed by the Magistrate extending the
period of detention, the application for default bail was rejected for
the reason that charge-sheet was lodged in the intervening period.
Mrs. S.K.Talekar,PS 80/120
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These facts, according to Mr. Kumbhakoni, make a signifcant
difference.
95. It was thus urged that the decision in the case of Bikramjit
Singh (Supra) is required to be construed in the backdrop of the
attendant facts and the proposition therein cannot be readily
imported. Our attention was invited to the decisions of the
Supreme Court in the cases of Union of India & Ors. Vs.
Dhanwanti Devi and Ors. 21
and Ashwani Kumar Singh Vs. U.P.
to bolster up the
submission that what is of the essence in a decision is its ratio
and not every observation found therein nor what logically follows
from the various observations made in the judgment.
96. There can be no qualm over the aforesaid proposition.
However, we are afraid to accede to the submission on behalf of
the respondents that the factual backdrop in Bikramjit Singh
(Supra) is so distinct that the pronouncement therein can be said
to have been rendered in the peculiar facts. On the contrary, as
indicated above, the Supreme Court has considered and analyzed
the provisions of the Code, UAPA and NIA Act elaborately, and,
21 (1996) 6 SCC 44
22 (2003) 11 SCC 584
Mrs. S.K.Talekar,PS 81/120
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thereafter, expounded the legal position. What is of salience, in
the backdrop of the controversy at hand, is the fact that in the
case of Bikramjit Singh (Supra) also, the State Government had
constituted Special Courts under section 22(1) of the NIA Act, like
the case at hand. The only distinctive feature that can be
discerned is the extension of period of detention by the Magistrate
and not the Court of Session, like the case at hand.
97. At this juncture, it is necessary to record that during the
course of the hearing, the Court was informed that the
pronouncement in the Bikramjit Singh (Supra) was under
consideration before another three Judge Bench in the case of
Sadique and Ors. Vs. State of Madhya Pradesh .
98. We have the beneft of the decision in the case of Sadique
and Ors. (Supra). In the said case also, the period of detention
was extended by the learned Chief Judicial Magistrate invoking
the power under section 43-D(2) of the UAPA. The application
preferred by the accused seeking default bail for not fling the
charge-sheet within the stipulated period was rejected by the
learned Magistrate. Revision application before the learned
23 Criminal Appeal No. 963/2021 dt.7-09-2021
Mrs. S.K.Talekar,PS 82/120
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Sessions Judge and a petition under section 482 of the Code met
the same fate.
99. The Supreme Court, adverted to the pronouncement in the
case of Bikramjit Singh (Supra), especially the observations in
paragraph No.26, extracted thereinabove, and concurred with the
conclusion arrived at in Bikramjit Singh (Supra), "so far as all
offences under the UAPA are concerned, the Magistrate's
jurisdiction to extend time under the frst proviso in Section 43-D
(2)(b) is non- existent".
100. Consequently, it was held that so far "extension of time
to complete investigation" is concerned, the Magistrate would not
be competent to consider the request and the only competent
authority to consider such request would be "the Court", as
specifed in the proviso in Section 43-D(2)(b) of the UAPA.
Resultantly, it was held the accused were entitled to be released
on default bail.
101. The proposition in Bikramjit Singh (Supra) that so far
as the offences under UAPA are concerned, the Magistrate's
jurisdiction to extend the time under the frst proviso to section
Mrs. S.K.Talekar,PS 83/120
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43-D(2) is non-existent, the Court being either a Sessions Court,
in the absence of a notifcation specifying a Special Court, or the
Special Court itself', thus, stands reaffrmed by another three
Judge Bench in the case of Sadique and Ors (Supra), by
enunciating in no uncertain terms that the only competent
authority to consider such request for extension of time to
complete investigation would be "the Court" as specifed in the
proviso to Section 43-D(2)(b) of the UAPA. Thus construed, it
stands reinforced that where a Special Court is constituted under
section 22 of the NIA Act, by the State Government, the
jurisdiction to extend the period of detention exclusively vests with
the Special Court so constituted.
102. It would be contextually relevant, at this stage, to
consult the judgment of the Supreme Court in the case of Naser
Bin Abu Bakr Yafai Vs. The State of Maharashtra & Anr. 24 which
affrmed the judgment and order of the Division Bench in the case
of Naser Bin Abu Bakr Yafai Vs. The State of Maharashtra & Anr.
(Supra). After analysis of the provisions of UAPA and NIA Act, the
Supreme Court, in the facts of the said case (which we have
extracted above), considered the challenge based on the judgment
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of Bikramjit Singh (Supra) to the effect that even if the ATS,
Nanded had the power to continue with its investigation and fle a
charge-sheet, it could only be before a Special Court under the
NIA Act since the appellant had been charged under the UAPA.
103. The Supreme Court referred to the facts in the case of
Bikramjit Singh (Supra) and extracted the observations in
paragraph Nos. 25 and 26 (extracted above), and explained as to
what was held by the Supreme Court in the case of Bikramjit
Singh (Supra) a under :
"44 .........The above narration would indicate that
the power to extend the 90 days period, indicated by the
frst proviso to Section 167(2) of the CrPC, up to a
maximum of 180 days was vested with "the Court". "The
Court", read with the defnition contained in Section 2(1)
(d) of the UAPA, was held to refer to the Special Court
constituted under Section 22 of the NIA Act. Hence, this
Court held that the Special Court constituted under
Section 22 of the NIA Act had exclusive jurisdiction over
every Scheduled Offence under the NIA Act investigated
by the investigating agency of the State."
104. Applying the proposition in Bikramjit Singh (Supra) to
the facts of the case in Naser Bin Abu Bakr Yafai (Supra), the
Supreme Court held that the principles enunciated in the case of
Bikramjit Singh (Supra) would not apply to the said case as there
existed no Special Courts in the State of Maharashtra designated
under section 22 of the NIA Act, at the relevant point of time.
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The observations in paragraph 47 make this position abundantly
clear :
"47 In the present case, the appellants were arrested
on 14 July 2016. The charge-sheet was submitted on 7
October 2016. The 90 days period of remand would have
been completed on 14 October 2016. Applying the principles
enunciated in Bikramjit Singh (supra) (in relation to the
power of the CJM to extend investigation up to 180 days) to
the present case (in relation to the jurisdiction of the CJM
in relation to remand and committal of case to trial), the
frst consideration would be whether there existed a Special
Court under Section 22 of the NIA Act to divest the CJM,
Nanded of its jurisdiction. The appellants have produced
before us various notifcations issued by the Government of
Maharashtra designating Special Courts under Section 22
for trial of schedules offences under the NIA Act. The
earliest of those notifcations is dated 13 April 2017. In its
counter-affdavit before this Court, the State of
Maharashtra has stated that:
"8...the present Crime No. i.e. 08/2016 has
been registered against accused/Petitioner on
14/07/2016. As per record of the offce of
deponent it appears that till the date of
registration of Crime No. 08/2016, the State
Government has not established Special Court
under Section 22 National Investigation Act,
2008 at Nanded."
Hence, the principle enunciated by this Court in Bikramjit
Singh (supra) would not apply to the present case since
there existed no Special Courts in the State of
Maharashtra designated under Section 22 of the NIA Act
(since the investigation was being conducted by the ATS
Nanded, which had the jurisdiction over the case).
(emphasis supplied)
105. The crucial distinction between the facts in the case of
Naser Bin Abu Bakr Yafai (Supra) and the instant case, is the
indubitable position that Special Courts constituted by the State
Government under section 22 of the NIA Act, did exist at Pune
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when the application for extension of period of detention was
entertained by the learned Additional Sessions Judge (Shri K.D.
Vadane). Thus, the judgment of the Supreme Court in the case of
Naser Bin Abu Bakr Yafai (Supra) or for that matter the
observations of the Division Bench of this Court in the case Naser
Bin Abu Bakr Yafai (Supra) do not govern the facts of the case at
hand with equal force.
106. Another facet which deserves consideration is the
correctness of the enunciation by the Division Bench of this Court
in the case of Naser Bin Abu Bakr Yafai (Supra) that the Special
Court constituted under section 22 of the NIA Act by the State
Government gets jurisdiction only when the investigation is
transferred by the National Investigation Agency to the State
Investigation Agency under section 7(b) of the NIA Act. In our
understanding, with respect, the Supreme Court in the case of
Naser Bin Abu Bakr Yafai (Supra) has not delved into the aspect
of correctness of the view of the Division Bench based on the
premise of the Special Court getting jurisdiction only after transfer
of investigation by the NIA under section 7(b) of the NIA Act.
Mrs. S.K.Talekar,PS 87/120
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107. Dr.Chaudhary, the learned counsel for the applicant
invited our attention to an order passed by a Full Bench of
Madras High Court in the case of Jaffar Sathiq @ Babu Vs. The
State 25
, wherein the Madras High Court had held that the
pronouncement in the case of Bahadur Kora (Supra) must be
taken to be impliedly overruled by the decision of the Supreme
Court in the case of Bikramjit Singh (Supra). The observations in
paragraph No.12 are material, and hence, extracted below :
"12 In Bahadur Kora (supra), the Full Bench of the
Patna High Court had steered clear of a literal reading of
the Act, and had resorted to a purposive interpretation of
Sections 7, 13 and 22 of the NIA Act, 2008, to hold that the
provisions of Chapter IV would apply only when the NIA
had transferred the investigation to the State police under
Section 7(b) of the Act. Though the logic and reasoning of
the Full Bench did appeal to us, we are, however, of the
considered view that in view of the authoritative
pronouncement of the Supreme Court in Bikramjit Singh
(supra), the applicability of the NIA Act, 2008 for offences
under the UAPA, 1967, is no longer open to doubt.
Consequently, the judgment of the Full Bench of the Patna
High Court must be taken to be impliedly overruled by the
decision of the Supreme Court in Bikramjit Singh (supra).
(emphasis supplied)
108. It is true that Bikramjit Singh (Supra) also does not
expressly refer to and deal with the provisions contained in
section 7(b) of the NIA Act. However, it must be noted that by
construing the provisions contained in sections
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13, 16(1) and 22(2) of the NIA Act, the Supreme Court in the case
of Bikramjit Singh (Supra) has expressly ruled 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. In the absence of any designated
Court by notifcation issued by either the Central Government or
the State Government, the fall back is upon the Court of Sessions
alone.
109. In this view of the matter, the submission that the
Special Courts to be constituted by the State Government under
section 22(1) of the NIA Act were conceived as "transferee" Court
only, to take up the trial of the cases only when the investigation
was transferred by the National Investigation Agency to the State
Government, does not appear to be in consonance with law. The
said proposition, even otherwise, is fraught with irreconcilable
infrmities. First and foremost, the stated object of establishment
of the National Investigation Agency, in a concurrent jurisdiction
framework, is required to be lost sight of. Secondly, the power of
the State Government under section 10 of the NIA Act to
investigate and prosecute any Scheduled Offence, of course
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subject to the power of the National Investigation Agency to
investigate into a Scheduled Offence, cannot be given effect to
fully. Thirdly, the interplay between section 13(1) which confers
exclusive jurisdiction on the Special Court (notwithstanding
anything contained in the Code), and section 22 of the NIA Act is
required to be ignored. Fourthly, had the intention of the
legislature been to make the Special Courts, to be constituted by
the State Government under section 22 of the NIA Act, as only the
transferee Court, there was no need to make elaborate provisions
especially under section 22 of the NIA Act, whereby the Special
Court constituted by the State Government and the State
Investigation Agency are equated with the Special Court
constituted under section 11 and National Investigation Agency,
respectively, subject to primacy of NIA and the Special Court
constituted under section 11 of the NIA Act.
110. This propels us to the next limb of the submission
assiduously canvassed on behalf of the respondents that under
section 11 of the NIA Act, the Special Courts are to be constituted
for the trial of Scheduled Offences. The Special Courts so
constituted or designated under either section 11 or section 22 of
the NIA Act, are not meant for conduct of pre-trial proceedings.
Mrs. S.K.Talekar,PS 90/120
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Since the extension of period of detention, pending completion of
investigation, is squarely in the realm of investigation, the
ordinary criminal Courts are not divested of the jurisdiction to
deal with pre-trial proceedings, including the extension of period
of detention, was the thrust of the submission on behalf of the
respondents.
111. Indeed, there is a marked difference between the
stages of investigation, inquiry and trial envisaged by the Code.
However, in the light of the controversy at hand, the distinction
sought to be drawn between "pre-trial" and "trial" proceedings and
the jurisdiction of the Court qua those proceedings, is not of
much assistance to the respondents. The reason is not far to seek.
The frst proviso in section 43-D(2)(b) expressly confers the power
to extend the period of detention of the accused upto 180 days
upon the 'Court', which in turn is defned in section 2(d) as 'a
criminal court having jurisdiction to try offences' under the said
Act. The legislature has vested the authority to extend the period
of detention in the Court which is competent to try the offences
under UAPA. We have seen that, Bikramjit Singh (Supra) lays
down in emphatic terms that it is only the Special Courts
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constituted either under sections 11 or 22 of the NIA Act which
are competent to try the Scheduled Offences.
112. In this view of the matter, looking from any angle, 'the
Court referred to in the proviso in section 43D(2)(b) of the UAPA
would be the Court competent to try those offences, which are
primarily the Special Courts constituted under sections 11 or 22
and, in the absence of designation of such Courts, the Court of
Session.
113. Indisputably, in the case at hand, the Special Courts
under section 22 of the Act were constituted at Pune. The
question that now crops up for consideration is, whether in the
face of existence of a Court constituted under section 22 of the
NIA Act, the learned Additional Sessions Judge could have
entertained the prayer for extension of period of detention under
section 43-D(2)(b) of UAPA ?
114. Dr. Chaudhary, the learned counsel for the applicant
would urge that the fact that the period of detention was extended
by the learned Additional Sessions Judge is as irrelevant and
inconsequential as the extension of the period of detention by the
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learned Magistrate, which has been held to be without
jurisdiction, by the Supreme Court in the case of Bikramjit Singh
(Supra). According to Dr. Chaudhary, the question of existence of
jurisdiction goes to the very heart of the matter. Reiterating that
an order passed without jurisdiction is non-est in law, Dr.
Chaudhary would urge, no matter such an order is passed by a
Sessions Judge. It was further urged that when the statute
provides a certain thing to be done in a particular way, it must be
done in that way alone. The submission based on lack of prejudice
to the applicant, according to Dr. Chaudhary, does not deserve
countenance.
115. As a strong case of absence of prejudice to the
applicants was pressed into service on behalf of the respondents,
especially by Mr.Anil Singh, the learned Additional Solicitor
General, we deem it appropriate to record that the aspect of
prejudice operates in different spheres qua twin challenges,
namely, the challenge to the authority to grant the extension of
period of detention and competence to take cognizance. The
former, in our view, stands on higher pedestal. By a catena of
decisions, it has been held that the right of the accused to be
released on bail, if the investigation is not completed and charge-
Mrs. S.K.Talekar,PS 93/120
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sheet is not fled within the period prescribed under section 167 of
the Code and as extended by special enactments, is indefeasible
and also partakes the character of fundamental right fowing from
'the procedure established by law' under Article 21 of the
Constitution of India. The aspect of competence to take
cognizance, on the other hand, is a matter which does not
necessarily entail the consequence on personal liberty.
116. The matter can be looked at from another perspective.
The legislature consciously chose to vest the power to extend the
period of detention upto 180 days in the Court which is
competent to try the offence under UAPA. The said power is
further regulated by providing that it should be exercised only
when the Court is satisfed with the report of Public Prosecutor
indicating the progress of the investigation and the specifc
reasons for the further detention of the accused beyond the intial
period of 90 days. The exercise of the power to extend the period
of detention is thus not envisaged as a matter of routine. The
Court is expected to apply its mind to the necessity of further
detention and extension of period of investigation. This implies
that the said power shall be exercised only by the Court which is
vested with special jurisdiction by the statute.
Mrs. S.K.Talekar,PS 94/120
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117. The fact that the Special Judges are to be appointed
from amongst the Sessions Judges does not carry the matter any
further. It is not the mere hierarchial equivalence of the presiding
offcers of the Special Court and the Court of Sessions, which is
decisive. The pivotal question is of existence of jurisdiction to
extend the period of detention, which takes away the otherwise
indefeasible right of the accused to be enlarged on bail, for default
in completion of investigation and fling of the charge-sheet. From
this stand point, in our view, the fact that in the cases of
Bikramjit Singh (Supra) and Sadique (Supra), the period of
detention was extended by the Magistrate makes no qualitative
difference in the application of the principle of law expounded
therein. The test is whether the Court which extended the period
of detention had the jurisdictional competence? If not, it is of no
relevance whether that Court was of inferior or superior rank.
118. Had the Special Court under section 22 of the NIA Act
been not constituted at Pune, totally different consideration would
have come into play. In that event, in view of the provisions of
section 22(3) read with section 13(1) and section 16 of the NIA Act,
the Court of Session would have the necessary jurisdiction to try
the Scheduled Offence. However, in the face of indubitable
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position of the existence of the Special Court, the extension of
period of detention by the Additional Sessions Judge, can only be
said to be without jurisdiction.
119. A proftable reference in this context can be made to
the judgment of the Supreme Court in the case of Fatema Bibi
Ahmed Patel Vs. State of Gujarat & Anr. (Supra), wherein in the
context of extra-territorial operation of the Penal Code and
exercise of jurisdiction under section 188 of the Code, the
Supreme Court held that where the actions taken by the Court
were without jurisdiction, those actions were nullities. The
observations in paragraph Nos. 20 to 22 read as under :
"20 The learned counsel submitted that as in the
earlier application, the appellant merely complained of
the absence of any sanction, this application should not
be entertained. We do not agree. Principles analogous to
res judicata have no application with regard to criminal
cases. An accused has a fundamental right in terms of
Article 21 of the Constitution of India to be proceeded
against only in accordance with law. The law which
would apply in India subject of course to the provisions
of Section 4 of the Indian Penal Code and Section 188 of
the Code of Criminal Procedure is that the offence must
be committed within the territory of India. If admittedly,
the offence has not been committed within the territorial
limits of India, the provisions of the Indian Penal Code as
also the Code of Criminal Procedure would not apply. If
the provisions of said Acts have no application as against
the appellant, the order taking cognizance must be held
to be wholly illegal and without jurisdiction. The
jurisdictional issue has been raised by the appellant
herein. Only because on a mistaken legal advise, another
application was fled, which was dismissed, the same by
itself, in our opinion, will not come in the way of the
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appellant to fle an appropriate application before the
High Court particularly when by reason thereof her
fundamental right has been infringed.
21 This Court, in a matter like the present one
where the jurisdictional issue goes to the root of the
matter, would not allow injustice to be done to a party.
The entire proceedings having been initiated illegally and
without jurisdiction, all actions taken by the court were
without jurisdiction, and thus are nullities. In such a
case even the principle of res judicata (wherever
applicable) would not apply."
22 In Chief Justice Of Andhra Pradesh And Others
v. L. V. A. Dixitulu And Others [AIR 1979 SC 193 at 198],
this Court held:
"24. If the argument holds good, it will
make the decision of the Tribunal as having
been given by an authority suffering from
inherent lack of jurisdiction. Such a decision
cannot be sustained merely by the doctrine
of res judicata or estoppel as urged in this
case."
120. In the case of Zuari Cement Limited Vs. Regional
Director, Employees' State Insurance Corporation, Hyderabad and
Ors. (Supra), the Supreme Court adverted to the principle
enunciated in the celebrated case of Nazir Ahmad Vs. King
Emperor 26
and reiterated that, where there is want of jurisdiction,
the order passed by the Court is a nullity or non-est. The following
paragraphs are material :
"15 In Babu Verghese and Others vs. Bar Council of
Kerala and Others, (1999) 3 SCC 422, it was held as
under:
"31. It is the basic principle of law long
settled that if the manner of doing a
26AIR 1936 1936 PC 253
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particular act is prescribed under any statute,
the act must be done in that manner or not at
all. The origin of this rule is traceable to the
decision in Taylor v. Taylor, (45 LJCH 373)
which was followed by Lord Roche in Nazir
Ahmad v. King Emperor, (AIR 1936 PC 253)
who stated as under:
"Where a power is given to do a certain thing
in a certain way, the thing must be done in
that way or not at all."
32. This rule has since been
approved by this Court in Rao Shiv Bahadur
Singh v. State of V.P., (AIR 1954 SC 322 and
again in Deep Chand v. State of Rajasthan
(AIR 1961 SC 1527). These cases were
considered by a three- Judge Bench of this
Court in State of U.P. v. Singhara Singh (AIR
1964 SC 358) and the rule laid down in Nazir
Ahmad case (AIR 1936 PC 253) was again
upheld. This rule has since been applied to
the exercise of jurisdiction by courts and has
also been recognised as a salutary principle
of administrative law."
16. Where there is want of jurisdiction, the order
passed by the court/tribunal is a nullity or non-est. What
is relevant is whether the Court had the power to grant the
relief asked for..........."
121. As regards the aspect of taking cognizance by the
learned Additional Sessions Judge by the orders dated 15 th
November 2018 and 21 st February 2019, consistent with the
pronouncement of the Supreme Court in the case of Bikramjit
Singh (Supra), in our view, the Special Court, having been
constituted under section 22 of the NIA Act, was the Court
competent to take cognizance of the Scheduled Offence. This leads
us to the question : What consequence emanate from the fact that
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cognizance of the offences was taken by the learned Additional
Sessions Judge, though a Special Court under section 22 of the
NIA Act was in existence at Pune ?
122. For an answer, it is necessary to appreciate as to what
is the jurisdictional connotation of the term, "cognizance". The
Code does not defne the term, "cognizance". In the context of the
proceedings before the Court, it connotes, 'to take the judicial
notice of the matter placed before the Court'. In a criminal
prosecution, it implies that the Judge or Magistrate has taken
judicial notice of the offences alleged, in order to initiate further
action in accordance with the governing provisions of the Code
and/or procedure prescribed under a Special enactment.
123. In the case of S.K. Sinha, Chief Enforcement Offcer
, the Supreme Court
expounded the juridical connotation of the term "Cognizance", as
under :-
"19 The expression "cognizance" has not been defned in
the Code. But the word (cognizance) is of indefnite import. It
has no esoteric or mystic signifcance in criminal law. It
merely means "become aware of " and when used with
reference to a Court or a Judge, it connotes, "to take notice
of judicially". It indicates the point when a Court or a
Magistrate takes judicial notice of an offence with a view to
27 (2008) 2 SCC 492
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initiating proceedings in respect of such offence said to have
been committed by someone.
20 "Taking cognizance" does not involve any formal
action of any kind. It occurs as soon as a Magistrate applies
his mind to the suspected commission of an offence.
Cognizance is taken prior to commencement of criminal
proceedings. Taking of cognizance is thus a sine qua non or
condition precedent for holding a valid trial. Cognizance is
taken of an offence and not of an offender. Whether or not a
Magistrate has taken cognizance of an offence depends on
the facts and circumstances of each case and no rule of
universal application can be laid down as to when a
Magistrate can be said to have taken cognizance."
124. In the light of the uncontroverted facts of the case at
hand, the question which wrenches to the fore is whether the act
of taking cognizance of the Scheduled Offences by the learned
Additional Sessions Judge (Shri K.D. Vadane) entails the
consequence of nullifying the presentment of the charge-sheet by
the Investigating Agency, post completion of investigation. To put it
in other words, whether the act of taking cognizance by a Judge
who is not legally empowered to do so, vitiates the entire
proceedings?
125. To begin with, the Code declares it to be an irregularity
which does not vitiate the proceedings. Clause (e) of section 460 of
the Code, declares that if any Magistrate, not empowered by law,
erroneously in good faith, takes cognizance under clause (a) or
clause (b) of sub-section (1) of section 190, his proceedings shall
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not be set aside merely on the ground of his not being so
empowered. From the expression "merely on the ground of his not
being so empowered" used in section 460, the element of prejudice
on account of irregular proceeding becomes explicit. Mere
irregularity without resultant prejudice which has the propensity
to lead to failure of justice is of no consequence.
126. In our view, Mr. Anil Singh, the learned Additional
Solicitor General was justifed in advancing the submission as
regards lack of prejudice in the context of the cognizance having
been taken by the learned Additional Sessions Judge, and placing
reliance on the judgment of the Supreme Court in the case of
Rattiram and Ors. (Supra). Rattiram and Ors. (Supra) arose in
the context of the cleavage of opinion in the judgments of the
Supreme court in the cases of Moly & Anr. Vs. State of Kerala
and Vidyadharan Vs. State of Kerala29, on the one hand,
wherein, it was held that conviction by the Special Court is not
sustainable if it had suo moto entertained and taken cognizance
of the complaint under the provisions of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 without the
case being committed to it, and in the case of State of Madhya
28 AIR 2004 SC 1890
29 (2004) 1 SCC 215
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Pradesh Vs. Bhooraji , on the other hand, wherein it was opined
that when a trial has been conducted by a Court of competent
jurisdiction and a conviction has been recorded on proper
appreciation of evidence, the same cannot be erased or effaced
merely on the ground that there had been no committal
proceeding and cognizance was taken by the Special Court
inasmuch as the same does not give rise to failure of justice.
127. A three Judge Bench in the case of Rattiram & Ors
(Supra), after adverting to the provisions contained in section 465
of the Code to the effect that no fnding, sentence or order passed
by a Court of competent jurisdiction shall be reversed or altered
by a Court of appeal, confrmation or revision on account of any
error, omission or irregularity in the complaint, summons,
warrant, proclamation, order, judgment or other proceedings
before or during trial or in any inquiry or other proceedings under
the Code, or any error, or irregularity in any sanction for the
prosecution unless in the opinion of that court, a failure of justice
has in fact been occasioned thereby, approached the controversy
on the premise that 'failure of justice' has been treated as the sine
qua non for setting aside the conviction. The Supreme Court
30 AIR 2001 SC 3372
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referred to a number of pronouncements which dealt with the
aspect of failure of justice, and concluded as under :-
"65 We may state without any fear of contradiction that
if the failure of justice is not bestowed its due signifcation in
a case of the present nature, every procedural lapse or
interdict would be given a privileged place on the pulpit. It
would, with unnecessary interpretative dynamism, have the
effect potentiality to cause a dent in the criminal justice
delivery system and eventually, justice would become
illusory like a mirage. It is to be borne in mind that the
Legislature deliberately obliterated certain rights conferred
on the accused at the committal stage under the new Code.
The intendment of the Legislature in the plainest sense is
that every stage is not to be treated as vital and it is to be
interpreted to subserve the substantive objects of the
criminal trial.
66 Judged from these spectrums and analysed on the
aforesaid premises, we come to the irresistible conclusion
that the objection relating to non-compliance of Section 193
of the Code, which eventually has resulted in directly
entertaining and taking cognizance by the Special Judge
under the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, does not vitiate the trial
and on the said ground alone, the conviction cannot be set
aside or there cannot be a direction of retrial and, therefore,
the decision rendered in Bhooraji (supra) lays down the
correct law inasmuch as there is no failure of justice or no
prejudice is caused to the accused.
67 The decisions rendered in Moly (supra) and
Vidyadharan (supra) have not noted the decision in Bhooraji
(supra), a binding precedent, and hence they are per
incuriam and further, the law laid down therein, whereby
the conviction is set aside or matter is remanded after
setting aside the conviction for fresh trial, does not expound
the correct proposition of law and, accordingly, they are
hereby, to that extent, overruled."
(emphasis supplied)
128. The aforesaid pronouncement, thus, exposits the law
that the fact that cognizance was taken by a Special Court,
despite the interdict in section 193 of the Code (which was the
Mrs. S.K.Talekar,PS 103/120
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position under the un-amended SC and ST Act, 1989), and held
the trial resulting in a conviction, does not necessarily lead to
setting aside of the conviction on the ground of defect in taking
cognizance unless the failure of justice could be demonstrated.
129. It is true that in the case at hand, the applicants had
made an endeavour to question the jurisdiction of the Additional
Sessions Judge, at the initial stage. However, the foundational
premise was that the applicants ought to have been produced
before the learned Magistrate and not the Additional Sessions
Judge. In this view of the matter, the fact that the Additional
Sessions Judge took cognizance of the Scheduled Offences,
despite the existence of a Special Court at Pune, in the absence of
material to demonstrate that there was resultant failure of justice,
cannot be exalted to such a pedestal as to hold that the very
presentment of the charge-sheet by the investigating agency is
non-est in the eye of law.
130. We are thus not persuaded to accede to the
submission on behalf of the applicants that the fact that the
charge-sheet was lodged in the Court of Additional Sessions Judge
and cognizance of the Scheduled Offences was taken by the
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learned Additional Sessions Judge would entail the consequence
of no charge-sheet at all having been fled by the investigating
agency on the given dates.
131. For the foregoing reasons, we answer the question Nos.
(i) and (ii) formulated at paragraph No.56 as under :-
(i) Extension of period of investigation and detention
of the applicants by order dated 26th November 2018
by invoking the frst proviso under section 43-D(2) of
UAPA, by the learned Additional Sessions Judge was
not by a Court of competent jurisdiction.
(ii) Consistent with the enunciation in the case of
Bikramjit Singh (Supra) and in the face of undisputed
position of existence of Special Court at Pune, the
charge-sheet ought to have been lodged before the
Special Court. However, the act of taking of
cognizance, by the learned Additional Sessions Judge
(Shri K.D.Vadane), does not entail the consequence of
the vitiation of the entire proceedings.
132. This propels us to the answer to the third and moot
question : whether the applicants are now entitled to default bail?
Mrs. S.K.Talekar,PS 105/120
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133. We have noted the facts in detail, on purpose. The
challenge to the application of Sudha Bharadwaj is on the ground
that it was presented at a premature stage, i.e., before the
completion of period of 90 days of detention. Whereas, the
application presented by all the applicants (Exh. 169) dated 21st
June, 2019 was assailed on the ground that it was presented after
the supplementary charge-sheet came to be fled on 21 st February
2019. Thus, none of the applications were presented after the
expiry of initial period of 90 days and before lodging of the charge-
sheet, even if the order of extension of period of detention is held
to be without jurisdiction and thus eschewed from consideration.
134. In the light of signifcant distinction on the factual
score, the claim of the applicants in both the applications
warrants independent consideration. Before we proceed to delve
into the facts, we deem it appropriate to note the legal position,
which is almost crystallized, as regards the right to be released on
bail under section 167(2) of the Code, by a catena of decisions. In
the context of the controversy at hand, we are of the view that, it
would be suffce to refer to the recent judgment of the Supreme
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Court in the case of M. Ravindran Vs. The Intelligence Offcer,
Directorate of Revenue Intelligence31
135. In the case of M. Ravindran (Supra), a three Judge
Bench of the Supreme Court took survey of the authorities on the
right of the accused to be enlarged on bail under section 167(2) of
the Code. The Supreme Court culled out the propositions in
paragraph 25 of the said judgment. They read as under :
"25 Therefore, in conclusion:
25.1 Once the accused fles an application for bail
under the Proviso to Section 167(2) he is deemed to have
'availed of' or enforced his right to be released on default
bail, accruing after expiry of the stipulated time limit for
investigation. Thus, if the accused applies for bail under
Section 167(2), CrPC read with Section 36A (4), NDPS Act
upon expiry of 180 days or the extended period, as the case
may be, the Court must release him on bail forthwith
without any unnecessary delay after getting necessary
information from the public prosecutor, as mentioned
supra. Such prompt action will restrict the prosecution
from frustrating the legislative mandate to release the
accused on bail in case of default by the investigative
agency.
25.2 The right to be released on default bail continues
to remain enforceable if the accused has applied for such
bail, notwithstanding pendency of the bail application; or
subsequent fling of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or
fling of the chargesheet during the interregnum when
challenge to the rejection of the bail application is pending
before a higher Court.
25.3 However, where the accused fails to apply for
default bail when the right accrues to him, and
subsequently a chargesheet, additional complaint or a
report seeking extension of time is preferred before the
Magistrate, the right to default bail would be extinguished.
The Magistrate would be at liberty to take cognizance of the
31 (2021) 2 SCC 485
Mrs. S.K.Talekar,PS 107/120
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case or grant further time for completion of the
investigation, as the case may be, though the accused may
still be released on bail under other provisions of the CrPC.
25.4 Notwithstanding the order of default bail passed
by the Court, by virtue of Explanation I to Section 167(2),
the actual release of the accused from custody is
contingent on the directions passed by the competent
Court granting bail. If the accused fails to furnish bail
and/or comply with the terms and conditions of the bail
order within the time stipulated by the Court, his
continued detention in custody is valid."
(emphasis supplied)
136. A proftable reference can also be made to the
observations of the Supreme Court in the case of Bikramjit Singh
(Supra), wherein the aspect of entitlement to default bail in the
backdrop of wrongful rejection of the application and the
subsequent fling of the charge-sheet, was also considered. The
principles are enunciated in paragraph 36 as under :
"36 A conspectus of the aforesaid decisions would
show that so long as an application for grant of default bail
is made on expiry of the period of 90 days (which application
need not even be in writing) before a charge sheet is fled, the
right to default bail becomes complete. It is of no moment
that the Criminal Court in question either does not dispose
of such application before the charge sheet is fled or
disposes of such application wrongly before such charge
sheet is fled. So long as an application has been made for
default bail on expiry of the stated period before time is
further extended to the maximum period of 180 days, default
bail, being an indefeasible right of the accused under the
frst proviso to Section 167(2), kicks in and must be
granted."
(emphasis supplied)
Mrs. S.K.Talekar,PS 108/120
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137. Amplifying the challenge to the claim of applicant-
Sudha Bharadwaj, the leaned Additional Solicitor General would
urge that the period during which the applicant was ordered to be
kept under house arrest, i.e., 28 th August 2018 to 27th October
2018, (the day, the applicant was taken into custody by Pune
Police) cannot be counted as the period of detention, under the
orders of the Court under section 167 of the Code. Thus, the
application preferred by the applicant for default bail, i.e., 26 th
November 2018, on the ground that 90 days' period from the date
of her initial production before the learned Magistrate expired,
cannot be said to have been made after the expiry of 90 days as
the period of house arrest was required to be excluded therefrom.
Thus, the application presented on 26 th November 2018 (Exh.43)
was premature.
138. The aforesaid submission was based on the
enunciation of law in the case of Gautam Navlakha Vs. National
Investigation Agency 32
. In the backdrop of the fact that the case
of a similarly circumstanced co-accused was considered by the
Supreme Court and the claim of the accused that the period of
house arrest was required to be reckoned as the period of
32 2021(7) SCALE 379
Mrs. S.K.Talekar,PS 109/120
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detention was not accepted by the Supreme Court, in the light of
the order passed by the Supreme Court on 29 th August 2018 in
Romila Thapar & Others Vs. Union of India & Others, Writ
Petition No. 260 of 2018, in our view, it would be suffce to extract
paragraphs Nos.134 and 141 of the judgment in the case of
Gautam Navlakha (Supra). They read as under :
"134 We would think that the reality of the situation is
explained by the said Order. Upon being informed that
the appellant and another were kept under house arrest,
on the suggestion of the Counsel for the petitioners in the
Public Interest Litigation before this Court, that he had
no objection in three others, if arrested, they be kept
under house arrest, at their own homes, it was so
ordered. It is not a case where this Court even had in its
mind the duty to go through the entries in the case
diaries relating to them, leave alone actually going
through them. Quite clearly, in respect of those persons,
house arrest even was the result of the choice exercised
by the Senior Counsel for the Writ Petitioners, who were
not the persons to undergo the house arrest. No doubt,
the Public Interest Litigation was launched to have an
impartial enquiry regarding their arrests. It is thereafter
that it was ordered that the house arrest of appellant and
other (Sudha Bharadwaj), may be extended in terms of
the order. House arrest was, undoubtedly, perceived as
the softer alternative to actual incarceration. It was in
that light that the Court proceeded in the matter. That
house arrest, in turn, involved, deprivation of liberty and
will fall within the embrace of custody under Section 167
of the CrPC, was not apparently in the minds of both this
Court and the High Court of Delhi. This is our
understanding of the orders passed by the court."
...........
141 In view of the fact that the house arrest of the
appellant was not purported to be under Section 167 and
cannot be treated as passed thereunder, we dismiss the
appeal. There will be no order as to costs."
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139. The Supreme Court has thus held in clear and explicit
terms that the house arrest of the appellant therein, who was
similarly circumstanced with the applicant, was not to be equated
with the detention within the meaning of section 167 of the Code.
Thus, the submission of the learned Additional Solicitor General
that the period for which the applicant was under house arrest
cannot be considered in computing the period of 90 days is well
grounded in facts and law. However, the further submission that
the application (Exh.43) preferred by the applicant on 26 th
November, 2018, was premature, and, thus, could not form the
basis of accrual of right of default bail, in our view, does not merit
equal acceptance.
140. The aforesaid submission, if given full play, cuts the
other way too. Even before the expiry of the period of 90 days,
from the date of initial arrest of the applicant (computing the
period of house arrest as well) i.e. on 22 nd November 2018 itself,
the learned Public Prosecutor fled report (Exh.33) under section
43-D(2) of UAPA read with section 167(2) of the Code for extension
of the period of detention, presumably on the premise that the
initial period of 90 days would expire on 25 th November 2018.
Secondly, what is of critical signifcance is the fact that the
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application for default bail, preferred by the applicant (Exh.43) on
26th November 2018 was not decided alongwith the report (Exh.33)
fled by the Public Prosecutor. The said application was very much
pending on the day, the period of 90 days, excluding the duration
for which the applicant was under house arrest, expired on 25 th
January, 2019 and eventually came to be dismissed by the
learned Additional Sessions Judge on 6th November 2019. The
supplementary charge-sheet against the applicant-Sudha
Bharadwaj was fled on 21st February 2019.
141. In the backdrop of the view which we have taken that,
the order passed by the learned Additional Sessions Judge on the
report (Exh.33) on 26th November 2018, was without jurisdiction,
the respondents cannot be now permitted to draw mileage from
the said order passed by learned Additional Sessions Judge and,
thus, the situation which obtained on 25 th January, 2019, was
that the period of 90 days, excluding the period for which the
applicant was under house arrest, expired and the application
preferred by the applicant for default bail (Exh.43) was still
pending. Can the applicant be not said to have availed the right to
be enlarged on bail?
Mrs. S.K.Talekar,PS 112/120
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142. In the light of the pronouncement of M. Ravindran
(Supra) and Bikramjit Singh (Supra), once the period of detention
expired and the accused manifested the intent to avail the right by
making an application, no subterfuge to defeat the said
indefeasible right can be countenanced. The factors like the bail
application was not decided, or wrongly decided, or subsequently
charge-sheet came to be fled, or a report seeking extension of
period of detention came to be fled and allowed, are of no
signifcance. Such attempts of defeating the indefeasible right
have been consistently repelled by the Courts. Once, the twin
conditions of default in fling the charge-sheet, within the
prescribed period, and the action on the part of the accused to
avail the right are satisfed, the statutory right under section
167(2) of the Code catapults into a fundamental right as the
further detention falls foul of the personal liberty guaranteed
under Article 21 of the Constitution.
143. In the case at hand, with the declaration that the
learned Additional Sessions Judge (Shri K.D. Vadane) had no
jurisdictional competence to extend the period of detention under
section 43-D(2)(b) of UAPA, the very substratum of the
prosecution case that the right to default bail did not ripe into an
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indefeasible right, as the period of detention was extended, gets
dismantled. The hard facts which thus emerge so far as the
application of Sudha Bharadwaj are : (i) that the period of
detention of 90 days (excluding the period of house arrest) expired
on 25th January, 2019; (ii) no charge-sheet was lodged; (iii) there
was no lawful order of extension of period of detention; and (iv) an
application preferred by Sudha Bharadwaj for default bail awaited
adjudication.
144. The matter can be looked at from a slightly different
perspective. As the period of detention was extended by the
learned Additional Sessions Judge by 90 days, the applicant-
Sudha Bharadwaj could not have applied for default bail after 25 th
January 2019 till the fling of the charge-sheet. Therefore, it
cannot be urged that the applicant-Sudha Bharadwaj did not
make an application during the said period and thus she did not
avail the right of default bail. On the touchstone of the guarantee
of personal liberty under Article 21 of the Constitution, in our
view, to deprive the applicant-Sudha Bharadwaj of the
indefeasible right on the premise that the application preferred on
26th November 2018 (Exh. 43) was premature, would be taking a
too technical and formalistic view of the matter. In our view, all
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the requisite conditions to release the applicant-Sudha Bharadwaj
on default bail stood fully satisfed.
145. As regards the entitlement of the applicant Nos.1 to 8
in Application No.1458 of 2019 for default bail, a brief revisit to the
facts would be in order.
(i) The applicant Nos.1 to 5, namely, Sudhir
Prahlad Dhawale, Rona Wilson, Surendra Gadling,
Dr. Shoma Sen and Mahesh Raut were arrested on
6th June 2018.
(ii) Charge-sheet against applicant Nos. 1 to 5 was
fled on 15th November 2018.
(iii) Applicant Nos. 6 to 8, namely P. Varavara Rao,
Vernon Gonsalves and Arun Ferreira were arrested
on 28th August 2018.
(iv) Charge-sheet against the applicant Nos. 6 to 8
in Criminal Application No.1458 of 2019 and Sudha
Bharadwaj Bharadwaj, applicant in Criminal Bail
Application No. 2024 of 2021, was fled on 21 st
February 2019.
146. Evidently, neither applicant Nos.1 to 5 claimed to have
fled an application for default bail under section 167(2) of the
Code, after the expiry of initial period of 90 days from the date of
their production before the learned Additional Sessions Judge on
7th June 2018 till the fling of the charge-sheet on 15 th November
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2018. Nor the applicant Nos.6 to 8 preferred such application till
the fling of the supplementary charge-sheet, qua them on 21 st
February 2019, after the expiry of initial period of 90 days.
147. The applicants have, however, approached the Court
with a case that the applicants were detained beyond the period of
180 days without the cognizance of the offences having been taken
by the competent Court. We have extracted the averments in
paragraph Nos. 4 to 6 of the application. The applicants premised
their claim for default bail on the aspect of defect in taking
cognizance of the offences. For the applicants, the learned
Additional Sessions Judge could not have taken cognizance
without the case having been committed by the learned
Magistrate.
148. In the aforesaid view of the matter, the learned
Advocate General and the learned Additional Solicitor General
were on a frm ground when they urged that the applicants in
Application No.1458 of 2019 did not 'avail of' the right of default
bail, by fling an application, within the meaning of section 167(2)
of the Code. We have seen that where the accused fails to apply
for default bail when the right accrues to him and subsequently a
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charge-sheet is fled before the Magistrate, the right to default bail
would get extinguished as it cannot be said that the accused
'availed of' his right to be released on default bail.
149. In this view of the matter, so far as the applicant Nos.
1 to 5 in Application No.1458 of 2019, the aspect of legality or
otherwise of the extension of period of detention is of no relevance
as the applicants did not avail of the said right to be released on
default bail before the charge-sheet was fled against them on 15 th
November 2018. In the case of applicant Nos. 6 to 8, though we
have held that the order passed by the learned Additional
Sessions Judge on the report (Exh.33) on 26 th November 2018 was
without jurisdiction, yet the said declaration is of no assistance to
the applicant Nos.6 to 8 as they did not avail of the right to be
released on default bail by fling an application, after the expiry of
the initial period of 90 days and before the lodging of the charge-
sheet on 21st February 2019. Resultantly, a crucial condition of
'availing of' the right so as to cement it as an indefeasible right,
has not been fulflled and the right stood extinguished by the
fling of the charge-sheet on 21st February 2019. Failure to take
cognizance or defect in jurisdiction in taking cognizance, once the
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charge-sheet was laid, does not entail the consequence of default
bail.
150. The conspectus of aforesaid consideration is that the
Application No.1458 of 2019 preferred by Sudhir Prahlad Dhawale
and 7 others is liable to be rejected. Whereas the Bail Application
No. 2024 of 2021 preferred by Sudha Bharadwaj deserves to be
allowed.
151. Hence, the following order :
ORDER
(i) Criminal Application No.1458 of 2019 stands
rejected.
(ii) Criminal Bail Application No.2024 of 2021 stands
allowed.
(iii) It is declared that Sudha Bharadwaj, the applicant
in Criminal Bail Application No. 2024 of 2021 is entitled
to be released on default bail under section 167(2) read
with section 43-D(2) of UAPA.
(iv) The applicant Sudha Bharadwaj be produced
before the Special Court, NIA, Mumbai on 6 th December
2021 and the learned Special Judge shall pass an order
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releasing the applicant-Sudha Bharadwaj on default bail
on such terms and conditions as may be found suitable
in the circumstances of the case.
(v) In view of the disposal of Criminal Application No.
1458 of 2019 and Criminal Bail Application No.2024 of
2021, all pending interim applications therein shall
stand disposed of.
All concerned to act on an authenticated copy of
this order.
[ N. J. Jamadar, J. ] [ S.S. Shinde, J. ]
****
At this stage, Mr. Anil Singh, the learned learned Additional
Solicitor General for respondent-NIA seeks stay to the execution,
operation and implementation of this order as the pure question
of law arose in this matter and the decision in this case may have
repercussions on the other cases.
Mr.Chaudhary, the learned counsel for the applicant -
Sudha Bharadwaj opposed the prayer of stay to the
implementation of the order. It was submitted that since this
matter was closed for orders, two judgments have been delivered
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by the Supreme Court which have affrmed the decision in the
case of Bikramjit Singh (Supra).
Suffce to note that we have considered those two judgments
in this order.
In view of the nature of the question which fell for our
determination, we consider it appropriate to direct that the
applicant-Sudha Bharadwaj be produced before the learned
Special Judge, NIA Court, Mumbai on '8 th December 2021' instead
of '6th December 2021' and the learned Special Judge, NIA Court,
Mumbai shall pass the order in terms of clause (iv) of the order,
on that day.
[ N. J. Jamadar, J. ] [ S.S. Shinde, J. ]
Mrs. S.K.Talekar,PS 120/120
