Bombay High Court

Sudha Bharadwaj vs National Investigation Agency ... on 11 June, 2021

Bench: S. V. Kotwal

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL BAIL APPLICATION NO.2024 OF 2021

    Sudha Bharadwaj                                        .... Applicant

              versus

    National Investigation Agency & Anr.                   .... Respondents
                                  .......

    •       Dr. Yug Mohit Chaudhary a/w Payoshi Roy, Advocate for
             Applicant.
    •       Mr.Sandesh Patil, Advocate for NIA/ Respondent No.1.
    •       Ms.Pallavi N. Dabholkar, APP for the State/Respondent.

                                    CORAM : SARANG V. KOTWAL, J.

DATE : 11th JUNE, 2021 (Through video conferencing)

P.C. :

1. This is an application for following prayers;

"A. that the Order dated 26/11/2018 passed by HHJ Mr. K.D. Vadane on the Report of the Public Prosecutor (Exh. 33) extending the detention of the Applicant and her co-accused by 90 days be quashed and set aside;

B. that the Order dated 21/2/2019 passed by HHJ Mr. K.D. Vadane issuing process to the Accused on the

Nesarikar

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chargesheet filed by the Respondent No. 2 on 21/2/2019 be quashed and set aside;

C. that the Applicant be released on bail u/s 167(2) Cr.P.C. r/w Section 43-D(2) UAPA in NIA Spl. Case No. 414/2020 (arising out of FIR No. 4/2018 of Vishrambaug Police Station) and NIA Spl. Case No. 871/2020 (arising out of NIA FIR RC-

01/2020/NIA/Mum);

D. that in the event of the Applicant being released on bail on furnishing a surety/sureties, the Applicant be immediately released on cash bail or on her personal recognizance, and be granted sufficient time to furnish a surety/sureties;

E. that pending the hearing and final disposal of the present Application, the Applicant be released on interim bail;

F. that pending the hearing and final disposal of the present Application, in the event of the Applicant being released on interim bail on furnishing a surety/sureties, the Applicant be immediately released on cash bail or on her personal

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recognizance, and be granted sufficient time to furnish a surety/sureties;

G. for ad-interim and interim relief in terms of prayer clauses (E) and (F);

               H.      for costs of this petition; and


               I.      for any other just and equitable relief that this

Hon'ble Court may deem fit to grant."

2. Thus essentially this application is for the relief of bail

under section 167(2) of Cr.P.C.

3. Learned counsel Dr.Yug Chaudhary for the Applicant at

the outset submits that since The National Investigation Agency

empowered under the National Investigation Agency Act, 2008

(for short N.I.A. Act), is the contesting respondent, it would be

appropriate if the matter is placed before the Division Bench in

view of the scheme of the Act and in particular that of section 21

of the N.I.A. Act, 2008.

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4. I have considered these submissions. I find force in

Dr.Chaudhary's submissions. In fact, the Hon'ble Supreme Court

in case of State of Andhra Pradesh, through Inspector General,

National Investigation Agency, Vs. Mohd. Hussain @ Salim, as

reported in (2014) 1 Supreme Court Cases 258 has taken a view

that the application for bail where N.I.A. Act applies, shall lie

only to a bench of two Judges of the High Court. In this context

observations of the Hon'ble Supreme Court in paragraph No.17,

18 and 27.3 are important, which are reproduced herein below;

"17. There is no difficulty in accepting the submission on behalf of the appellant that an order granting or refusing bail is an interlocutory order. The point however to be noted is that as provided under Section 21(4) of the NIA Act, the appeal against such an order lies to the High Court only, and to no other court as laid down in Section 21(3). Thus it is only the interlocutory orders granting or refusing bail which are made appealable, and no other interlocutory orders, which is made clear in Section 21(1), which lays down that an appeal shall lie to the High Court

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from any judgment, sentence or order, not being an interlocutory order of a Special Court. Thus other interlocutory orders are not appealable at all. This is because as provided under Section 19 of the Act, the trial is to proceed on day-to-day basis. It is to be conducted expeditiously. Therefore, no appeal is provided against any of a the interlocutory orders passed by the Special Court. The only exception to this provision is that orders either granting or refusing bail are made appealable under Section 21(4). This is because those orders are concerning the liberty of the accused, and therefore although other interlocutory orders are not appealable, an appeal is provided against the order granting or refusing the bail. Section 21(4), thus carves out an exception to the exclusion of interlocutory orders, which are not appealable under Section 21(1). The order granting or refusing the bail is therefore very much an order against which an appeal is permitted under Section 21(1) of the Act.

18. Section 21(2) of the NIA Act provides that every such appeal under sub-section (1) shall be heard

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by a Bench of two Judges of the High Court. This is because of the importance that is given by Parliament to the prosecution concerning the Scheduled Offences. They are serious offences affecting the sovereignty and security of the State amongst other offences, for the investigation of which this special Act has been passed. If Parliament in its wisdom has desired that such appeals shall be heard only by a Bench of two Judges of the High Court, this Court cannot detract from the intention of Parliament. Therefore, the interpretation placed by Mr Ram Jethmalani on Section 21(1) that all interlocutory orders are excluded from Section 21(1) cannot be accepted. If such an interpretation is accepted it will mean that there will be no appeal against an order granting or refusing bail. On the other hand, sub-section (4) of Section 21 has made that specific provision, though sub-section (1) otherwise excludes appeals from interlocutory orders. These appeals under sub-section (1) are to be heard by a Bench of two Judges as provided under sub-section (2). This being the position, there is no merit in the submission canvassed on behalf of the applicant that appeals against the

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orders granting or refusing bail need not be heard by a Bench of two Judges.

........

27.3. Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a Bench of two Judges of the High Court."

5. These observations are made in the background of the

fact that section 21 (4) does not specifically mention that bail

matters be placed before a Division Bench. But in respect of that,

considering the entire scheme of the Act and in particular that of

section 21 of the N.I.A. Act, 2008, the Hon'ble Supreme Court

has indicated that matters concerning bail shall lie before the

bench of two judges of the High Court.

6. As per proviso (a)(ii) of sub-section (2) of section 167

of Cr.P.C., every person released on bail under this sub-section

shall be deemed to be so released under the provision of chapter

XXXIII for the purposes of that chapter.

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