Jharkhand High Court

Naresh Yadav vs The State Of Jharkhand on 13 July, 2022

                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   B. A. No. 2704 of 2022
                                          ....

            Naresh Yadav                                   ....     Petitioner
                                          Versus
            The State of Jharkhand                          .... Opposite Party
                                          ....
             CORAM:           HON'BLE MR. JUSTICE RAJESH KUMAR

                For the Petitioner              : Mr. Indrajit Sinha, Adv.
                                                  Mr. Kumar Harsh, Adv.
                                                  Mr. Suraj Kishore Prasad, Adv.
                For the State                   : Mr. V.S.Sahay, A.P.P.
                                                ....

04/13.07.2022             Learned counsel for the State has raised objection regarding
                maintainability of the bail application.

Issue involved in the present bail application is "whether against the impugned order bail application is maintainable or criminal appeal before Division Bench?"

This issue has been settled by this Court vide order dated 29.09.2021 passed in Criminal Revision No.994 of 2019. The order is extracted hereinbelow:-

"The present revision application has been directed against the order dated 27.05.2019 passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in connection with S.T. No.123 of 2016 arising out of Gua (Bada Jamda) P.S. Case No.42 of 2015 corresponding to G.R. No.677 of 2015, whereby the learned Trial Court has rejected an application filed by the accused for recalling of the prosecution witness i.e. Investigating Officer under Section 311 of the Cr.P.C. for his cross-examination.

At the very outset jurisdictional issue has been raised. The relevant Sections for consideration is extracted hereinbelow:-

"The Unlawful Activities (Prevention) Act, 1967 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];

Section 43:-Officers competent to investigate offences under Chapters IV and VI. -- Notwithstanding anything contained in the Code, no police officer, --

(a) in the case of the Delhi Special Police Establishment, constituted under sub-section (1) of section 2 of the Delhi Special Police Establishment Act, 1946 (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;

(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under subsection (1) of section 8 of the Code, below the rank of an Assistant Commissioner of Police;

[(ba) in the case of National Investigation Agency, below the rank of Inspector];

(c) in any case not relatable to clause (a) or clause (b) [or clause (ba)], below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, Shall investigate any offence punishable under Chapter IV or VI.

The National Investigation Agency Act, 2008

Section 2(g) -- "Scheduled Offence" means an offence specified in the Schedule;

Section 2(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 officer-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.

(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 fifteen 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 fit 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 fit 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 officer 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 officer-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 India.

(9) For the purpose of sub-section (8), the Special Court at New Delhi shall have the jurisdiction.] Section 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.

Section 20. Power to transfer cases to regular courts. -- Where, after taking cognizance of any offence, a Special Court is of the opinion

that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

Section 22. Power of State Government to [designate Court of Session as] Special Courts.--(1) The State Government may [designate one or more Courts of Session as ] Special Courts for the trial of offences under any or all the enactments specified 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 modifications, 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 [designated] by the State Government under subsection (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 [designated] 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.

The learned counsel for the revisionist has submitted that the scheme of the N.I.A Act contemplates that any offence investigated by National Investigating Agency can be tried by the Special Court and with regard to those cases only procedure prescribed under N.I.A. Act will apply.

In the present case, although the offence is a scheduled offence as defined in the N.I.A. Act but the same has been investigated by the State Agency and being tried by the Sessions Court (not by the designated court) and as such, the procedure of Cr.P.C. will be applicable and not the procedure prescribed under the N.I.A. Act will be applicable.

On the other hand, learned counsel for the State has submitted that any scheduled offence, whether investigated by the National Investigating Agency or by the State Agency, the procedure prescribed under the N.I.A. Act will be applicable and not the procedure prescribed under the Cr.P.C.

Having heard the parties and on perusing the relevant provision of the Act as extracted hereinabove, this Court finds that any scheduled offence can be investigated either by the National Investigating Agency or by the State Agency. The National Investigating Agency has the primacy over State Agency. If the Central Government decides then it has to be investigated by the National Investigating Agency and trial has to be conducted by the Special Court designated under the Act.

From mere perusal of the above Sections, it is clear that the offence, if, not transferred to the National Investigating Agency then it has to be investigated by the State Agency. Even if, the matter has been transferred to the National Investigating Agency, still it can be retransferred to the State Agency. If the investigation is conducted by the State Agency then the Court having jurisdiction will be the Special Court constituted by the State Government under Section 22 of the N.I.A. Act. Till such Court is designated, the session court will be deemed to be a Special Court, evident from the reading of Section 22 sub-clause-3 of the N.I.A. Act, which is a transitional provision. Statement of Objects and Reasons of Amendment Act 16 of 2019 is quoted hereinbelow:-

"Amendment Act 16 of 2019__Statement of Objects and Reasons.- The National Investigation Agency Act, 2008 (the Act) was enacted with a view to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations.

2. In order to facilitate the speedy investigation and prosecution of Scheduled Offences, including those committed outside India against the Indian citizens or affecting the interest of India and to insert certain new offences in the Schedule to the Act as Scheduled Offences which adversely affect the national security, it has become necessary to amend certain provisions of the Act.

3. The National Investigation Agency (Amendment) Bill, 2019, inter alia, provides for the following, namely: __

(i) to insert a new clause (d) in sub-section (2) of section 1 of the Act so as to apply the provisions of the Act also to persons who commit a Scheduled Offence beyond India against the Indian citizens or affecting the interest of India;

(ii) to amend sub-section (2) of section 3 of the Act to provide that the officers of the National Investigation Agency shall have the similar powers, duties, privileges and liabilities, being exercised by the police officers in connection with the investigation of offences, not only in India but also outside India;

(iii) to amend section 6 of the Act so as to empower the Central Government, with respect to a Scheduled Offence committed outside India, to direct the Agency to register the case and take up investigation as if such offence has taken place in India;

(iv) to amend sections 11 and 22 of the Act so as to provide that the Central Government and the State Government may designate one or more Courts of Session as Special Court or Special Courts for conducting the trial of offences under the Act; and

(v) to amend Schedule of the Act so as to insert certain new offences in the said Schedule.

4. The Bill seeks to achieve the above objectives."

From mere perusal of the aims and objects of the Act also it is clear that if the scheduled offence is multi-dimensional has to be investigated by the National Investigating Agency. But considering the nature of offence, if it is to be investigated by the State Agency then the case has to be tried by the Special Court created by the State Government under Section 22 of the N.I.A. Act.

Thus, the scheduled offence can be investigated by two agencies i.e. either by the National Investigating Agency or by the State Agency. If the investigation is done by the National Investigation Agency then the jurisdiction

will be the Special Court created by the Central Government. But, if the investigation is done by the State Agency then the jurisdiction will be Special Court designated by the State Government under Section 22 of the N.I.A. Act. In both the cases, the procedure prescribed under the N.I.A. Act will be applicable.

Viewing to the present case, it is not in dispute that the offence committed is the scheduled offence and it has been investigated by the State Agency. The jurisdiction has been exercised by the Sessions Court. In view of Section 22(3) of the N.I.A. Act, it will be deemed to be Special Court and the procedure prescribed under the N.I.A. Act will be applicable.

In view of above discussion, this Court finds that the jurisdiction lies with the Division Bench under the appellate jurisdiction as prescribed under section 21 of the N.I.A. Act. Thus, this Court finds that the criminal revision application is not maintainable and, accordingly, the same is, hereby, dismissed."

The contrary view has been taken by the Full Bench of Hon'ble Patna High Court in the case of Bahadur Kora and Others Vrs. State of Bihar reported in 2015 (2) MWN (Cr.) 305 (FB) (Pat.). The said Full Bench judgment has been considered by the Full Bench of the Hon'ble Madras High Court in the case of Jaffar Sathiq Vrs. State reported in 2021 SCC Online Mad 2593.

The Hon'ble Madras High Court has quoted the judgment of Hon'ble Apex Court in the case of Bikramjit Singh Vrs. State of Punjab reported in (2020) 10 SCC 616. Quotation is extracted hereinbelow-;

"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 first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if "the Court" is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. "The Court", when read with the extended definition 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 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 fit 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 notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone." (Emphasis Supplied)

The Hon'ble Apex Court again in the judgment reported in 2021 SCC Online SC 3099 in the case of State of Kerala and Others Vrs. Roopesh has affirmed the above legal position.

In view of above authority, the clear position which emerges is as follows:-

The entire scheduled offences, scheduled in National Investigation Agency Act, 2008.

(i) If investigated by the N.I.A. will be tried by the Special Court, designated by the Central Government.

(ii) If the investigation is done by the State Agency, will be tried by the Special Court, designated by the State Government, otherwise by the Sessions Court having the territorial jurisdiction.

In all cases the procedure prescribed under the National Investigating Agency Act, 2008 will be applicable.

To clarify, it is hereby ordered that against the order passed by the Court trying the scheduled offences, Section 21 of the N.I.A. Act will be applicable i.e. the order will be appealable before the Division Bench.

Accordingly, the Registrar General is directed to direct the registry to act accordingly and further circulate this order alongwith the order of Hon'ble Apex Court to the entire judgeship of the State of Jharkhand for its compliance.