Jharkhand High Court
Lughur Tiwari @ Brij Kishore ... vs The State Of Jharkhand on 8 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.5246 of 2023
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Lughur Tiwari @ Brij Kishore Tiwari .... .... .... 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. Abhishek Kumar, Advocate
For the State : Mr. Rajendra R. R. Das, Addl.P.P
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Order No.04 Dated- 08/09/2023
Heard the parties.
The record is put up today as an objection has been raised by the
Stamp Reporter that an appeal will lie in terms of Section 21 of the
National Investigation Agency Act, 2008; as one of the offences involved
in this case being under Section 25 (1-AA) of the Arms Act is a schedule
offence of the National Investigation Agency Act, 2008. It is pertinent to
mention here that a Full Bench of this Court vide order dated 16.12.2022 in
B.A. No.5937 of 2022 keeping in view the observations made by the
Hon'ble Supreme Court of India in the case of Bikramjit Singh vs. State
of Punjab reported in (2020) 10 SCC 616 held as under in paragraphs-24,
25 and 26:-
"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. xxxxX"
(Emphasis Supplied)
has held that the such application is to be heard by a Division Bench
under Section 21 of the National Investigation Agency Act, 2008.
Therefore, this Bail Application filed under Section 439 of the Code
of Criminal Procedure is not maintainable. Hence, this Bail Application is
dismissed being not maintainable.
Before parting it is pertinent to mention here that Section 23 of the
National Investigation Agency Act, 2008 reads as under:-
"23. Power of High Courts to make rules.--The High Court
may, by notification in the Official Gazette, make such rules, as it
may deem necessary for carrying out the provisions of this Act
relating to Special Courts within its territory."
envisages that the High Court may make rules for carrying out the
provisions of National Investigation Agency Act, 2008.
In view of the judgment of the Full Bench of this Court in B.A.
No.5937 of 2022 since it has been held that the case in which any of the
offence as mentioned in the schedule of the National Investigation Agency
Act, 2008 is involved, it is to be tried by the Special Court either
established under Section 11 or under Section 22 of the National
Investigation Agency Act, 2008 but in the absence of any rule made by the
High Court still the courts other than the special courts are taking
cognizance and even conducting the trial of the cases involving the
offences mentioned in the schedule of the National Investigation Agency
Act, 2008. Hence, necessary rule is required to be made by the High Court.
Therefore, Registry is directed to place the matter before the
Hon'ble the Chief Justice to consider making necessary rules for carrying
out the provisions of National Investigation Agency Act, 2008.
(Anil Kumar Choudhary, J.)
Animesh/
