Karnataka High Court

Mohammad Bilal vs Police Sub Inspector on 21 April, 2023

Bench: Alok Aradhe, Vijaykumar A Patil

                          1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                  R
        DATED THIS THE 21ST DAY OF APRIL 2023

                      PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

     THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL

               W.P.H.C. NO.10 OF 2023
BETWEEN:

1.     MOHAMMAD BILAL
       S/O YUSUF
       AGED ABOUT 23 YEARS
       R/AT MJM 138, IFA MANZIL
       NEAR MOIDDIN MOSQUE, KASBA
       BENGARE , MANGALURU TALUK
       D.K DISTRICT 575 001.

2.     MOHAMMAD RAFEEQ @ SHORT RAFEEQ
        @ KUNTA RAFEEQ
       S/O SAYYAD
       AGED ABOUT 44 YEARS
       R/AT D .NO. 3-342/27
       NADUMANE HOUSE, KEMPU KOLA
       JOKATTE, MANGALURU TALUK
       D.K DISTRICT 575 001.

3.     ABBAS KEENYA
       S/O LATE IBRAHIM
       AGED ABOUT 45 YEARS
       R/AT H .NO. 3-33/1
       KEENYA VILLAGE AND POST
       ULLAL TALUK
       D.K DISTRICT 575 020.
                             2



4.     AKBAR SIDDIQI
       S/O ABDULLA
       AGED ABOUT 39 YEARS
       R/AT H NO. 3-661/1
       NEAR WATER TANK
       ADYARAPADAVU, ADYAR
       MANGALURU TALUK
       D.K DISTRICT 575 001.

5.     MOHAMMAD RAFEEQ
       S/O U P MOOSAN
       AGED ABOUT 40 YEARS
       R.AT H.NO. 14-75
       K.B JAREENA MANZIL, NEAR
       AL KAREEM MOSQUE, AKKAREKERE
       T.C ROAD, ULLAL TALUK
       D.K DISTRICT 575 020

       (PETITIONER NO.1 TO 5 ARE IN JUDICIAL CUSTODY )

       PETITIONER 1-5 ARE REPRESENTED BY
       K.I. ILLYAS
       S/O LATE IBRAHIM
       AGED ABOUT 39 YEARS
       #3-33(1) J K HOUSE, KINYA
       D.K DISTRICT 575 023.


                                         ... PETITIONERS
(BY MR. MOHAMMED TAHIR, ADV.,)

AND:

1. POLICE SUB-INSPECTOR
   LAW AND ORDER
   PANAMBUR POLICE STATION
   MANGALURU CITY - 575 011.

2. STATE OF KARNATAKA
   REP. BY ITS SECRETARY
   HOME DEPARTMENT
                            3



   VIDHANA SOUDHA
   BENGALURU - 560001.
                                    ... RESPONDENTS

(BY MR. V.S. HEGDE, SPP-II A/W
    MR. THEJESH P, HCGP)

                          ---

     THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF
THE     CONSTITUTION    OF    INDIA,   PRAYING    TO
DECLARE AND SET ASIDE THE ORDER OF EXTENSION OF
REMAND/DETENTION PASSED ON 9.1.2023 BY THE
HON'BLE 49TH CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR TRIAL OF NIA CASES AT BENGALURU
(CCH-50)   AT  ANNEXURE-A    IN   CRIME   NO.71/2022
REGISTERED BY THE PANABUR PS IS WITHOUT
JURISDICTION AND ILLEGAL, AND SET ASIDE DISMISSAL OF
DEFAULT BAIL ORDER DATED 17.1.2023 PASSED BY
HONBLE 49TH CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR TRIAL OF NIA CASES AT BENGALURU
(CCH-50)   AT  ANNEXURE-B    IN   CRIME   NO.71/2022
REGISTERED BY THE PANABUR PS, UNDER SECTION 121,
121A, 120B, 153A, 109 OF IPC AND U/S 13, 18 OF UAPA
1967 AND SAME IS PENDING IN THE FILES OF HONBLE
49TH CITY CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE FOR TRIAL OF NIA CASES AT BENGALURU (CCH-50)
WHEREIN THE PETITIONERS ARE ARRIVED AS ACCUSED
NO.3,6,11,19 AND 20 AND.    CONSEQUENTLY, SET THE
PETITIONER INTO LIBERTY BY APPRECIATING THEIR
DEFAULT BAIL APPLICATION FILED BY THE PETITIONERS
BEFORE THE HONBLE 49TH CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR TRIAL OF NIA CASES AT
BENGALURU (CCH-50) AT ANNEXURE-E BY IMPOSING
REASONABLE CONDITIONS TO ENSURE THEIR APPEARANCE
BEFORE THE PROPER COURT.

    THIS WPHC HAVING BEEN HEARD AND RESERVED
FOR   ORDERS   ON   20.04.2023, COMING   ON FOR
PRONOUNCEMENT      OF      ORDERS    THIS   DAY,
ALOK ARADHE J., MADE THE FOLLOWING:
                                     4



                              ORDER

This petition seeking a writ of habeas corpus has

been filed seeking quashment of orders dated

09.01.2023 and 17.01.2023 passed by 49th City Civil

and Sessions Judge and Special Judge for trial of

National Investigation Agency (hereinafter referred to

as 'the Special Court' for short) cases at Bangalore,

granting extension of remand / detention and

dismissing the application for default bail,

respectively. The petitioners in addition, seek a

direction to the respondents to set them at liberty by

imposing reasonable conditions to ensure their

appearance before the competent court.

2. The relevant facts which are not in dispute,

lie in a narrow compass. On 12.10.2022, Police Sub-

Inspector of Panambur Police Station, Mangaluru City

registered Crime No.71/2022, against the petitioners

for offences under Sections 121, 121A, 121B, 153A

and 109 of Indian Penal Code, 1860 and under

Section 13 and 18(1)(B) of the Unlawful Activities

(Prevention) Act, 1967 on the ground that the

petitioners are members of Popular Front of India,

which is an organization banned by the Central

Government by an order dated 28.09.2022. The

allegation against the petitioners is that they were

engaged in unlawful activities. The petitioners were

arrested on 12.10.2022 and were produced before the

Magistrate. The Magistrate, by an order dated

28.12.2022 committed the case to Special Court.

3. The Special Court by an order dated

09.01.2023 has extended the custody of the

petitioners for a period from 90 days to 180 days. The

petitioners, on 12.01.2023 after completion of 90 days

filed applications seeking default bail. The Special

Court, by an order dated 17.01.2023 rejected the

applications seeking default bail and held that the

Special Court has jurisdiction to try the offences. It is

not in dispute that during the pendency of the

petition, the State Investigation Agency has filed

charge sheet in Special Court on 10.04.2023 and

cognizance of the offence has been taken by Special

Court on 17.04.2023.

4. Learned counsel for the petitioners, while

inviting the attention of this Court to paragraph 63 of

the decision of the Hon'ble Supreme Court in

'GAUTAM NAVLAKHA VS. NATIONAL

INVESTIGATION AGENCY', (2021) SCC ONLINE SC

382 submitted that in case, the order of remand is

absolutely illegal and the same is afflicted with vice of

lack of jurisdiction and therefore, a writ of habeas

corpus would lie. It is further submitted that the

investigation has been conducted by State Police and

there is no notification under Section 22(1) of the

National Investigation Agency Act, 2008 (hereinafter

referred to as 'the Act' for short) constituting Special

Court. Therefore, by virtue of Section 22(3) of the Act,

the Court of Session in Mangalore alone has the

jurisdiction to deal with the matter and the order of

extension of remand and the prayer for grant of

default bail could have been considered only by the

Court of Session in Mangalore.

5. It is therefore, contended that the orders dated

09.01.2023 and 17.01.2023 passed by the Special

Court are per se without jurisdiction and therefore,

the writ petition seeking writ of habeas corpus is

maintainable. It is also urged that mere filing of

charge sheet and cognizance of offence being taken by

the Special Court does not divest the petitioners of

their rights to seek default bail. In support of

aforesaid submissions, reliance has been placed on

decision of Hon'ble Supreme Court in 'BIKRAMJIT

SINGH VS. THE STATE OF PUNJAB (2020) 10 SCC

616 and a Division Bench judgment of Bombay High

Court in 'SUDHA BHARADWAJ AND OTHERS VS.

NATIONAL INVESTIGATION AGENCY AND OTHERS',

(2022) CRI LJ 752.

6. On the other hand, learned State Public

Prosecutor-2 has submitted that the Central

Government had issued a notification dated

31.12.2012 under Section 11(1) of the Act notifying

the Court of 49th Addl. City Civil Court and Sessions

Judge, Bangalore City to be Special Court. It is

pointed out that aforesaid notification was superseded

by another notification dated 18.09.2019 and the

Court of 49th Addl. City Civil Court and Sessions

Judge, Bangalore City was designated as Special

Court for trial of scheduled offences investigated by

the National Investigation Agency. The State

Government also by an order dated 19.07.2012 has

established the Court to deal with the cases under the

Act and therefore, the said order has to be treated as

an order under Section 22(1) of the Act and the

Special Court alone has the jurisdiction to deal with

the matter. It is also contended that Section 22(3) of

the Act has no application in the fact situation of the

case.

7. We have considered the rival submissions

made on both sides and have perused the record. The

following issues arise for consideration in this writ

petition:

(i) Whether writ of habeas corpus is

maintainable?

(ii) Whether the order dated 19.07.2012

passed by the State Government establishing

the Court as Special Court is an order under

Section 22(1) of the Act?

8. Before proceeding further, it is apposite to

take note of necessary statutory provisions. The Act

was enacted with a view to constitute an investigating

agency at the national level to investigate and

prosecute the offences relating to 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, it's agencies and other international

organisations and for matters connected therewith or

incidental thereto.

9. Section 2(h) of the Act defines the expression

'Special Court' to mean a Special Court constituted

under Section 11 or, as the case may be, under

Section 22 of the Act. Section 11 of the Act deals with

power of the Central Government to designate Court

of sessions as Special Courts, whereas Section 22 of

the Act deals with power of the Government to

constitute the Special Courts. Sections 11 and 22 of

the Act, prior to its amendment by its amending Act

dated 02.08.2019 read as under:

"11. Power of Central Government to constitute Special Courts. -

(1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final.

(3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court.

(4) The Agency may make an application to the Chief Justice of the High Court for

appointment of a Judge to preside over the Special Court.

(5) On receipt of an application under sub- section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court.

(6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.

(7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State.

(8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order

direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order.

(9) Where any additional judge or additional judges is or are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge."

"22.     Power    of   State    Government     to
constitute Special Courts. -

(1)    The State Government may constitute one

or more 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 constituted by the State Government under sub-section (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 constituted 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."

It is evident that the same deals with power of

Central and State Government to constitute Special

Courts.

10. Now we may advert to the first issue namely

the aspect of maintainability of the writ petition. The

aforesaid issue is no longer res integra and has been

answered by the Hon'ble Supreme Court in GAUTAM

NAVLAKHA, supra wherein in paragraph 63 it has

been held as under:

"63. xxx If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected

can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie."

11. In view of aforesaid enunciation of law, the

writ of Habeas Corpus is maintainable in the

contingencies envisaged in paragraph 63 of the

judgment of Hon'ble Supreme Court in GAUTAM

NAVLAKHA, supra. Accordingly, the first issue is

answered.

12. Now we deal with the second issue namely

whether the order dated 19.07.2012 passed by the

State Government establishing the Court as Special

Court is an order under Section 22(1) of the Act. It is

not in dispute that offence alleged against the

petitioners are scheduled offences under the Act and

the provisions of the Act are applicable to the case of

the petitioners. Section 22(1) of the Act provides that

the State Government may constitute one or more

Special Courts for trial of the offences under any or all

of the enactments specified in the Schedule.

13. The order dated 19.07.2012 passed by the

State Government establishing the Court of Addl. City

Civil and Sessions Judge and Special Court reads as

under:

" PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA

Sub: Establishment of one more court of Additional City Civil & sessions Judge (Spl. Court) to deal with the cases under National Investigation Agency Act, 2008 at Bangalore.

Read:

1) Letter No.E-6/2003/2009/NIA/2320 dated 13- 05-2010 of the Director General, N.I.A. New Delhi.

2) Registrar General of High Court, letter No.GOB II.267/2010, dt:26.10.10, 28.04.2011 and 28.03.2012.

3) Inspection General (Admnin), NIA, Ministry of Home Affairs, Government of India, New Delhi, Letter No.E.06/2003/2009/NIA/1171-74 dated 07.05.2012 & 29.06.2012.

Preamble:

In the letter read at (1) above, Director General, N.I.A. New Delhi, had stated that the Government of India has created the National Investigation Agency (NIA) under the National Investigation Agency At, 2008. the Act empowers the National Investigation Agency to investigate & Prosecute offences specified

in the schedule to the Act, which inter-alia includes offences under the Unlawful Activities (Prevention) Act, 1967. Further, he states that in accordance with the provisions of Section 11 of the NIA Act, the Central Government shall constitute a Special Court in every State for trail of schedule offences investigated by the National Investigation Agency within the territorial jurisdiction of the State. The Special Court so constituted shall be presided over by a Judge to be appointed by the Central Government on the recommendation of the Hon'ble Chief Justice of the High Court concerned.

Further, he states that the NIA is investigating 14 cases in various States having inter-state ramifications and for various matter concerning investigation. It is expedient to get atleast one court notified under the NIA, Act, in each State/Union Territory. Further, at any time, cases may also be taken up for investigation by the NIA in the State of Karnataka, necessitating a NIA Special court.

Therefore, requested for recommending a suitable Court and a suitable Presiding Officer to the Central Government, so that the Ministry of Home Affairs, Government of India, issue notification constituting the NIA Special Court at Bangalore for the entire State of Karnataka.

In view of the decision taken by the Central Government, the High Court letter read at (2) above, after considering all the relevant materials resolved to recommend to the Government for creation of one court at Bangalore to deal with the cases under National Investigation Act, 2008, and create one more post in the cadre of District Judges. And again requested the Government to accord sanction for the establishment of one more Court of Additional City Civil and Session Judge (Special Court) to deal with the cases under National Investigation Agency Act, 2008, at

Bangalore together with the post of Presiding Officer and following non-gazetted staff.

    Sl.           Name of the Post          No. of
   No.                                      Posts
   1.     Additional City Civil & Session       1
          Judge (District Judge Cadre)

In the letter read at (3) above, the Inspector General (Admin), NIA, Ministry of Home Affairs, New Delhi, had requested the State Government to establish a NIA Special Court in accordance with the provisions of the section 11 of the NIA Act, 2008 at the earliest. In view of the facts stated above, the Government has examined the proposal. Hence this order.

GOVERNMENT ORDER NO.LAW 231, LCE 2010, BANGALORE, DATED 19TH JULY 2012

In the circumstances explained in the preamble, Government agrees for the establishment of one more Court of Additional City Civil & Sessions Judge (Special Court) to deal with the cases under National Investigation Agency Act, 2008, at Bangalore together with the post of Presiding Officer and following non-gazetted staff.

STAFF PATTERN

Sl. Name of the Post No. of No. Posts 1. Additional City Civil & Session 1 Judge (District Judge Cadre)

This order issues with the concurrence of the

Exp-10/2012, dt:18-06-2012."

14. Thus, from perusal of the Government order

dated 19.07.2012, it is evident that an order is an

order under Section 22(1) of the Act and therefore, the

Special Court has jurisdiction to deal with the order of

extension of remand as well as the applications

seeking default bail. The provisions of Section 22(3) of

the Act has no application to the fact situation of the

case. The contention urged by the petitioners that the