Jammu & Kashmir High Court - Srinagar Bench
Showkat Ahmad Lone vs State Of J&K; Through P/S Devsar on 31 July, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA No. 35/2018
Date of Order: 31.07.2018
Showkat Ahmad Lone
Vs.
State of J&K through P/s Devsar
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr G. N Shaheen, Advocate
For respondent(s): Mr Mir Suhail, AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. In this petition, the petitioner/accused craves the indulgence of this Court in admitting him to bail for the commission of offences under Sections 30, 120-B RPC 7/25 Arms Act, 10, 13(2), 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act, on the grounds, Inter alia, that he was detained by the security forces without any rhyme or reason whatsoever and was lodged in Police Station Devsar, where a case bearing FIR No. 63/2017 for the commission of the aforesaid offences was registered against him. He moved an application for enlarging him on bail before the Court of the learned Principal District Judge, Kulgam, and the learned Principal District Judge, Kulgam, by his order dated 29.01.2018, directed that the petition being bereft of any merit and substance, entails rejection and, is accordingly, rejected.
2. Aggrieved by the order aforesaid, the petitioner had knocked at the portals of this Court by the medium of an application, wherein he has stated that he has been involved in the case without any justification, proof or evidence. He is an innocent person. His continued detention will prevent him to defend himself BA No. 35/2018 Page 1 of 7 effectively and prove his innocence. It is further stated in the application by the applicant that his involvement in the crime imputed to him has been manipulated by the police and the same is motivated by political considerations. The allegations levelled against him are baseless. He is not connected with any political activity, which may be termed as illegal, anti-national or anti-social as alleged by the police authorities. It is also stated that he has not committed any offence which carries the punishment of imprisonment for life or death and the Court below has withheld the bail as a means of punishment without the trial of the case. The applicant has also submitted that he is seriously ill and his health is deteriorating due to his continued confinement. The applicant has also contended that he will abide by all the conditions, which this Court may impose on him while granting the bail. He will not indulge in any illegal activity and will face the trial regularly. In the end, the applicant has prayed that the instant application be allowed and the respondents be directed to release him from the custody forthwith.
3. The respondent - non applicant has filed the objections, stating therein that on 07.11.2017, a police patrol party of Police Station Devsar, received an information from a reliable source that a group of terrorists belonging to Hizbul Mujahedeen (HM) under the directions of Reyaz Naikoo, in criminal conspiracy with its OGWs are about to accomplish a terrorist act by killing the police personnel/security forces as also to snatch weapons from them and in order to achieve the same they are moving from one to the other place. Further the said organization in order to operate their designs have distributed the deadly weapons among the OGWs so as to cause fear and terror among the public of District Kulgam, as a consequence of which, an FIR bearing No. 63/2017 was registered against them for the commission of offences under Sections 30, 12-B RPC, 7/25, Arms Act, 10, 13(2), 18, 20, 38, 39 Unlawful Activities Act, at Police Station Devsar, with which the investigation ensued. During the investigation of the case, it was found that a police party of P/s Devsar at naka BA No. 35/2018 Page 2 of 7 checking along with police party of P/S Kulgam at Pahloo Zanglapora crossing on 17.11.2017, spotted and apprehended one Showkat Ahmad Lone S/o Ali Mohd Lone R/o Batpora Charsoo Awantipora, who was found moving under suspicious circumstances. During the questioning, he confessed that he is OGW of HM outfit. The investigation in the case is going on. The respondent has further stated that the offence under 30, 120-B RPC, 7/25 Arms Act, 10, 13(2), 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act, 1967, are triable by the Special Court only. Furthermore, it has been stated that the accusations against the accused are well founded, as such, no bail can be granted to him. It is further stated that the accused is a habitual offender and has been instrumental in fomenting trouble in district Kulgam, every now and then. The respondent has further stated that it will be detrimental to the state at large, if the accused is left to roam scot freely. The offences committed by the accused carry a punishment of life imprisonment. The respondent has finally prayed that this Court may be pleased to reject the bail application in view of the facts enumerated above.
4. Heard and considered.
5. This Court on an earlier occasion has dealt with a matter identical to the present one being BA No. 35/2018 titled "Showkat Ahmad Lone v. State of J&K through P/S Devsar", decided on 11th July, 2018, which has been authored by me and the relevant excerpts of the aforesaid order are extracted below for the convenience of ready reference:
"8. The main plank of the argument of the State is that the offence under Section 13 of the Act of 1967 is a Scheduled Offence and is triable by a special Judge only. It is further contended that the law laid down by the Supreme Court in the case of 'State of Andra Pradesh through I.G. National Investigation Agency v. Mohammad Hussain @ Saleem' rendered in 'CRL MP Nos. 17570 & 17571/2013', is that if in a given case where the offence is triable by the Special Court only and the applicant is declined the relief of bail by the Special Court, an appeal against the said order shall lie before a Division Bench of the High Court and in that context the application of the applicant is not maintainable in this Court.
9. Section 6 of the National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act, 2008), which assumes significance in the case at hand, requires to be reproduced hereinbelow, word for word and letter for letter, and it reads as under:BA No. 35/2018 Page 3 of 7
"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."
10. From a bare perusal of Section 6 of the NIA Act, 2008, what comes to the fore is that it prescribes the manner of investigation of the offences listed in the Schedule attached to the National Investigation Agency Act. It provides that a police officer, Incharge of the police Station, on receipt of the report of the offence shall forward the same to the State Government forthwith, which, in turn, shall forward the report to the Central Government, as expeditiously as possible. On the receipt of the report of the State Government, the Central Government has to decide and determine on the basis of the information made available by the State Government or received from BA No. 35/2018 Page 4 of 7 other sources, within fifteen days from the date of the 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 National Investigation Agency. It also stipulates that if 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. It is only where the Central Government declares the offence in question to be a Scheduled Offence or a case fit to be investigated by the agency that it can be investigated by the National Investigation Agency. In this case, there is nothing to state that the Central Government has passed any order directing that the offence levelled against the applicant is a Scheduled Offence or that, on the strength of the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
11. Be that as it may, Section 10 of the NIA Act, 2008, provides that, save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. A conjoint reading of Section 6 and Section 10 quoted above makes it abundantly clear that it is not only the Central Government but the State Government has also the power to investigate and prosecute any scheduled offence or other offences under any law for the time being in force. Section 10 explicitly provides that the provisions of the National Investigation Agency Act with regard to investigation shall not affect the powers of the State Government to investigate and prosecute any Scheduled Offence or any other offence.
12. "Scheduled Offence" has been defined in Section 2(g) of the NIA Act, 2008, and it states that Scheduled Offence means an offence specified in the Schedule and the schedule reads as under:
"THE SCHEDULE
1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression Unlawful Acts Against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under--
(a) Chapter VI of the Indian Penal Code [Sections 121 to 130 (both inclusive)];
(b) Sections 489A to 489E (both inclusive) of the Indian Penal Code.BA No. 35/2018 Page 5 of 7
13. The acts and the offences detailed in the above Schedule fall within the definition and scope of the Scheduled Offence, irrespective of the fact whether the investigation of the case is take up by the National Investigation Agency or by the State Government. In case State of Andra Pradesh through I.G. National Investigation Agency v. Mohammad Hussain @ Saleem (Supra), the Apex Court of the country held as follows:
"(b) And, secondly, as far as prayer (b) of the petitioner for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under MCOC Act, 1999, as well as the Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore, application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code.
The application for bail filed by the applicant is the present case is not maintainable before the High Court.
(c) Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a bench of two Judges of the High Court."
14. From a bare glimpse of the law laid down above, an order of the rejection of the bail passed by the special Court under the NIA Act of 2008, is appealable and the appeal shall lie before a Bench of two Judges of the High Court. Section 21, Sub Section (2) of the Act, provides that every appeal under Sub Section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal and Sub Section (4) of the Act, provides that 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. On the analogy of Section 21 of the Act, the order passed by the Special Court in the application for bail has to be appealed against and the appeal shall lie before the Division Bench and not before the Single Judge of the High Court. The argument that this case has not been taken over for investigation by the National Investigation Agency and, therefore, the rigor of Section 21 of the Act shall not apply to the same is a fallacious one for the simple reason that a Scheduled offence can be investigated into and tried by the State Government also and the forum that shall hear and determine an appeal against the order of the rejection of the bail is provided under Section 21 of the Act.
15. In view of the preceding analysis, this Court lacks the jurisdiction to decide and determine the application of the applicant, as a sequel to which, the same is dismissed".
BA No. 35/2018 Page 6 of 76. The order cited above details that a Single Bench of the High Court does not have the jurisdiction to decide and determine an application for grant of bail, wherein the provisions of Unlawful Activities are invoked and the Special Court has passed an order in the application. The order holds that such an order can be appealed against before a Division Bench, as a corollary to which, this application is dismissed with the liberty to the petitioner to work out his remedy before the proper forum.
7. Bail Application disposed of as above.
(M. K. Hanjura) Judge Srinagar 31.07.2018 "Manzoor"
BA No. 35/2018 Page 7 of 7