Mobin @ Irfan Abdul Shakoor Khan vs The State Of Maharashtra
2021 Latest Caselaw 13985 Bom

                                                                                    8-Ba-196-2020.doc




                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION

                                              BAIL APPLICATION NO. 196 OF 2020

                        Mobin @ Irfan Abdul Shakoor Khan                      ... Applicant
                                    Versus
                        The State of Maharashtra                              ... Respondent

                                                         .....
                        Mr. Sharif Shaikh, Advocate for the Applicant.
                        Mr. A. M. Chimalkar Special P. P. a/w Mr. Siddharth Jagushte a/w
                        Mr. S. R. Agarkar, APP for the Respondent - State.
                                                             .....

                                                      CORAM        :    PRAKASH D. NAIK, J.

                                                      DATE         :    28th SEPTEMBER, 2021

                        PER COURT:

1. Learned counsel for the applicant submitted that the

provisions of Unlawful Activities (Prevention) Act, 1967 were

invoked in the present case. The offence under Unlawful Activities

(Prevention) Act, 1967 is included in the scheduled of the National

Investigation Act, 2008 (for short "NIA Act"). It is submitted that

in view of the decision of the division bench of this Court in the

case of Surendra P. Gadling Vs. State of Maharashtra delivered in

Criminal Application (BA) No.109 of 2020 dated 11th August, 2021,

the applicant is required to prefer an appeal in accordance with the

provisions of NIA Act which would lie before the division bench of Digitally signed by SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR this Court.

Date:

JAMADAR    2021.09.30
           14:32:36
           +0530
                        Sajakali Jamadar                     1 of 3
                                                                       8-Ba-196-2020.doc

2. The division Bench in the above decision has referred

to the decision of the Apex Court in the case of Bikramjit Singh Vs.

State of Punjab, reported in (2020) 10 SCC 616 it would be

relevant to quote Paragraph Nos. 12 & 17 of the said decision.

" 12] In our view, the judgment delivered in the case of Prakashan C (supra) is by two Judges of the Hon'ble Supreme Court and the judgment by the Hon'ble Supreme Court in the case of Bikramjit Singh (supra), being a judgment delivered by Larger Bench of three Judges of the Apex Court, we are bound by the decision in the case of Bikramjit Singh (supra). We therefore hold that all Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

17] We are therefore of the view that the Court trying offences under second Schedule of the NIA Act being the Special Court as contemplated by Section 22 of the NIA Act, the person aggrieved by an order of refusing bail is required to file appeal under Section 21(4) of the NIA Act and the application under Section 439 of the Code of Criminal Procedure is not maintainable before the High Court."

Sajakali Jamadar                            2 of 3
                                                                 8-Ba-196-2020.doc

3. Learned counsel for the applicant submits that in view

of the aforesaid decision, the present application may be allowed to

be converted into an appeal under Section 21(4) of the NIA Act.

4. Learned Special P. P. submitted that the decision in case

of Bikramjit Singh (supra) seems to have been delivered in

different context, but in view of decision of divisions Bench of this

Court, he submitted to the orders of Court.

5. In view of decision of division Bench, the applicant is

permitted to convert this application into an appeal in accordance

with provisions of NIA Act. After the requisite amendment and

conversion into appeal, the matter may be placed before the

appropriate Court.

                                                   (PRAKASH D. NAIK, J.)




Sajakali Jamadar                       3 of 3