Jharkhand High Court
Soyna Singh Sardar vs The State Of Jharkhand on 4 February, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 04 of 2021
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Soyna Singh Sardar ... Petitioner
Versus
The State of Jharkhand... Opposite Party
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CORAM:HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. R.C.P. Sah, Advocate
For the N.I.A. : Mr. R.R. Prasad, Advocate
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Order No.02 Dated- 04.02.2021
1. Heard the parties through video conferencing.
2. Learned counsel for the petitioner submits that this
petition has been filed with a prayer for grant of bail in exercise of
power under Section 439 of Code of Criminal Procedure.
3. Learned counsel for National Investigating Agency raised
preliminary objection regarding maintainability of the petitioner
under section 439 of the Code of Criminal Procedure.
4. It is submitted by Mr. Rohit Ranjan Prasad, the learned
counsel for National Investigation Agency that the offences involved
in this case is that the petitioner being an armed cadre of CPI (Maoist)
has committed the gruesome act of killing of five police personnel of
Jharkhand Police and committed offences punishable under Sections
147/148/149/302/353/379/435 of Indian Penal Code as also under
Section 27 of Arms Act and under Section 17 of Criminal Law
Amendment Act as well as under Section 13 of Unlawful Activity
Prevention Act, in connection of which Tiruldih P.S. Case No.16 of
2019 has been registered which is covered under the scheduled
offences as mentioned in the Schedule of National Investigation
Agency Act, 2008 and the Central Government, Ministry of Home
Affairs in exercise of power under Section 6 (5) of National
Investigation Agency Act, 2008 directed the National Investigation
Agency to re-register the case and accordingly in compliance of the
order of Ministry of Home Affairs, Government of India, National
Investigation Agency formally re-registered the case at N.I.A. Delhi
vide N.I.A. Case No.R.C.-39/2020/NIA/DLI and corresponding
number assigned to the case by the Special Judge constituted under
the N.I.A. Act for the State of Jharkhand has assigned Special N.I.A.
Case No.04 of 2020 to the case.
5. It is next submitted by the learned counsel of the National
Investigation Agency that Section 21 (4) of National Investigating
Agency Act, 2008 which reads as under:-
"21. Appeals.--
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(4) Notwithstanding anything contained in sub-section (3) of
section 378 of the Code, an appeal shall lie to the High Court
against an order of the Special Court granting or refusing bail."
envisages that the an appeal shall lie to the High Court against
an order of the Special Court granting or refusing bail in exercise of
its power under Section 437 of Code of Criminal Procedure. Relying
upon the judgment of Hon'ble Supreme Court of India in the case of
State of Gujarat v. Salimbhai Abdulgaffar Shaikh & Ors. reported
in (2003) 8 SCC 50 which is a judgment in connection of the issue
involved in the instant case before this court but relating to Section 34
(4) of Prevention of Terrorism Act, which is a pari materia provision as
that of section 21 (4) National Investigating Agency Act 2008 and
which reads as under
34. Appeal.--
Xxxxxxxxxxxxxxxxx
(4) Notwithstanding anything contained in sub-section (3) of section 378
of the Code, an appeal shall lie to the High Court against an order of the
Special Court granting or refusing bail.
Hon'ble Supreme Court of India in paragraph no.11 of that case
observed as under:-
"11. Broadly speaking, therefore, an appeal is a proceeding taken to
rectify an erroneous decision of a court by submitting the question to a
higher court, and in view of the express language used in sub-section
(1) of Section 34 of POTA the appeal would lie both on facts and on
law. Therefore even an order granting bail can be examined on merits
by the High Court without any kind of fetters on its powers and it can
come to an independent conclusion whether the accused deserves to be
released on bail on the merits of the case. The considerations which are
generally relevant in the matter of cancellation of bail under sub-
section (2) of Section 439 of the Code will not come in the way of the
High Court in setting aside an order of the Special Court granting bail.
It is, therefore, evident that the provisions of POTA are in clear
contradistinction with that of the Code of Criminal Procedure where no
appeal is provided against an order granting bail. The appeal can lie
only against an order of the Special Court and unless there is an order
of the Special Court refusing bail, the accused will have no right to file
an appeal before the High Court praying for grant of bail to them.
Existence of an order of the Special Court is, therefore, a sine qua
non for approaching the High Court." (Emphasis supplied)
6. It is also submitted by learned counsel for National
Investigation Agency that as the Hon'ble Supreme Court has held
that existence of an order of the Special Court is sine qua non for
approaching the High Court and in this case as a Special Court
constituted under the National Investigation Agency Act, 2008 has
not been approached by the petitioner nor any order of said special
court exists in respect of refusing bail. Hence, it is submitted that the
petition under Section 439 of Code of Criminal Procedure is not
maintainable.
7. In support of his contention, Mr. Rohit Ranjan Prasad,
learned counsel for National Investigation Agency also relied upon
the judgment of Hon'ble Andhra Pradesh High Court in the case of
National Investigation Agency vs. Mohmed Anwar Shak& Anr.
reported in 2012 SCC Online AP 441.
8. Mr. Ram Chandra Prasad Sah, learned counsel for the
petitioner submits that jurisdiction of Section 439 of Code of Criminal
Procedure is not barred by the provision of National Investigation
Agency Act, 2008 hence, this petition for grant of bail under Section
439 of Code of Criminal Procedure is maintainable.
9. Having heard the submissions made at the Bar and after
going through the materials in record, it is pertinent to mention here
that in pari-materia provision to that of Section 21 (4) of National
Investigation Agency Act, 2008 which exist in Section 34 (4) of
Prevention of Terrorism Act, 2002, the Hon'ble Supreme Court in no
uncertain manner has settled the principle of law that existence of an
order of the Special Court is sine qua non for approaching the High
Court.
10. In view of the settled principle of law as mentioned above
and the facts of this case, this Court is of the considered view that the
application under Section 439 of Code of Criminal Procedure when
undisputedly the Special Act constituted under the National
Investigation Agency Act, 2008 is in seisin of the case concerned,
hence in the absence of any order of granting or refusing bail, to the
petitioner By the Special Court constituted under the National
Investigation Agency Act, 2008, this application filed under section
439 of the Code of Criminal Procedure is not maintainable.
11. Accordingly, this petition is rejected being not
maintainable.
(Anil Kumar Choudhary, J.)
AFR-Sonu-Gunjan/
