Karnataka High Court
Waseem Akram Alias Wasim Akram vs Police Sub Inspector on 9 August, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
W.P.H.C. NO.52 OF 2024
BETWEEN
WASEEM AKRAM @ WASIM AKRAM,
S/O TAFAZULKHAN HAKEEM @ PATHAN,
AGED ABOUT 35 YEARS,
R/AT MILLAT NAGAR MANTOOR ROAD,
HUBBALLI,
DHARWAD DISTRICT-580 020.
...PETITIONER
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND
1 . POLICE SUB INSPECTOR,
OLD HUBBALLI POLICE STATION,
HUBLI SOUTH SUB DIVISION,
HUBBALLI -DHARWAD-580 020.
2 . STATE OF KARNATAKA,
REP BY ITS SECRETARY,
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001.
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3 . REGISTRAR GENERAL
HIGH COURT COMPLEX,
OPP TO VIDHANA SOUDHA,
BANGALORE-560 001.
...RESPONDENTS
(BY SRI. BELLIAPPA, SPP-I, FOR
SRI. ANOOP KUMAR, HCGP FOR R1 & R2;
VIDE ORDER DATED 22/06/2024, R3 IS DELETED)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO SEEK
CLARIFICATION FROM RESPONDENT NO.2 REGARDING THE
STATUS OF GO ORDER NO LAW 231LCE 2010, BANGALORE
DATED 19TH JULY 2012 UNDER SECTION 22 OF THE NIA ACT
AND ALSO SEEK CLARIFICATION FROM RESPONDENT NO.3
REGARDING REQUISITION OF RESPONDENT NO.2 FOR THE
RECOMMENDATION/ APPOINTMENT OF ANY JUDGE TO PRESIDE
OVER THE SPECIAL COURT AS PER SECTION 22 R/W THE
SECTION 11(3) OF NIA ACT.
THIS WPHC HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY,
RAJESH RAI.K, J., MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE RAJESH RAI K
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CAV ORDER
(PER: HON'BLE MR RAJESH RAI K)
The petitioner, who is the accused of Scheduled offences
under Unlawful Activities (Prevention) Act, 1967 (for short 'the
Act, 1967) in Cr.No.63/2022 of Hubballi Police Station, has filed
this writ petition seeking the following reliefs:
"(a) That, this Hon'ble Court may be pleased
to set aside the Cognizance order dated 27.10.2022
passed by the Hon'ble 49TH CITY CIVIL and
SESSIONS JUDGE AND SPECIAL JUDGE FOR TRIAL
OF NIA CASES AT BANGALORE (CCH-50) at
ANNEXURE-A in Crime No.63/2022 registered by the
Old Hubballi PS under Sections 143, 147, 148, 323,
324, 332, 333, 504, 506, 427, 307, 120B, 225B,
153A, r/w 149 of IPC and u/s 3(1) of Prevention of
Damage to Public Property Act, 1984 and
U/s16(1)(b), 18, 20 of Unlawful Activities
(Prevention) Act, 1967 want of jurisdiction, and
(b) Consequently, transfer the Spl CC
no.2263/2022 which is pending in the files of Hon'ble
49TH CITY CIVIL and SESSIONS JUDGE AND SPECIAL
JUDGE FOR TRIAL OF NIA CASES AT BANGALORE
(CCH-50) to the Principle District and Session Court
at Dharwad which has proper jurisdiction to try this
case as per the section 22(3) of NIA act. and also
(c) Declare that Government order i.e. GO
order No Law 231LCE 2010, Bangalore Dated 19th
July 2012 at ANNEXURE-D is not a notification under
section 22 of the NIA Act.
(d) Pass any other order which this court
deems fits, in the interest of justice and equity."
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2. The facts in brief that are apposite for consideration
in the case on hand as borne out from the pleadings are as
follows:
The petitioner i.e., accused No.138 in Cr.No.63/2022
registered by respondent No.1-Police for the offence punishable
under Sections 143, 147, 148, 323, 324, 332, 333, 504, 506,
427, 307, 120B, 225B, 153A r/w Section 149 of IPC and Section
3(1) of Prevention of Damage to Public property Act, 1984 and
under Section 16(1)(b), 18, 20 of Unlawful activities
(Prevention) Act, 1967 has been arrested and produced before
the learned IV Additional Civil Judge and JMFC at Hubballi and he
was remanded to judicial custody. Subsequently, respondent
No.1-Police completed the investigation and laid the charge
sheet in the aforesaid case before the Special Judge for NIA
cases at Bengaluru i.e., learned XLIX City Civil and Special
Judge. Based on the said charge sheet materials, learned Special
Judge took cognizance of the offences against the petitioner and
others vide order dated 21.10.2022 and directed the office to
register a case against the petitioner and others in Register
No.III as Special Criminal Case. Accordingly, a special case was
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registered against the petitioner in Spl.C.C.No.2263/2022 by
arraying as accused No.138. However, during the course of trial,
the petitioner was released on bail by the Special Court. On this
scenario, the petitioner has challenged the cognizance order as
stated supra, in this writ petition, on the ground that the same
amounts to illegal detention.
3. We have heard the learned counsel Sri Mohammed
Tahir for the petitioner and learned SPP-I Sri Belliappa for
Sri Anoop Kumar for respondent Nos.1 and 2 so also perused the
entire materials placed before us.
4. Learned counsel for the petitioner would vehemently
contend that respondent No.1-police has erroneously laid the
charge sheet against the petitioner before the learned Special
Court at Bengaluru which is designated only under Section 11 of
the National Investigation Agency Act, 2008 (for short 'the NIA
Act'). As such, the said Court has no such jurisdiction to
adjudicate the case against the petitioner. Hence, the cognizance
taken by the learned Special Judge against the petitioner in
Spl.C.C.No.2263/2022 is totally illegal and arbitrary. Due to the
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same, the petitioner was detained in prison a quite long time,
which amounts to illegal detention.
5. By enunciating his argument, learned counsel for the
petitioner emphasized Section 11 of the NIA Act and submits
that under the said provision, the Central Government shall, in
consultation with the Chief Justice of the High Court, by the
Notification in the Official Gazette, for the trial of Scheduled
Offences, designate one or more Courts of Session as Special
Court for such area or areas, or for such case or class or group
of cases, as may be specified in the Notification. Whereas, the
power of State Government to designate the Courts of Session
as Special Courts is notified under Section 22 of the NIA Act.
Additionally, the learned counsel, by relying the proceedings of
the Government of Karnataka dated 19.07.2012, contends that
the above Notification depicts that the Government of Karnataka
agrees for establishment of one more Court of Additional City
Civil & Session Judge (Special Court) to deal with the cases
under the NIA Act, 2008 at Bengaluru together with the post of
Presiding Officer and following non-gazetted staff. However,
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there is no such order of assigning the Special Court or
appointment of the Judges to the said cases as on the date of
taking cognizance order by the learned Special Judge against the
petitioner in Spl.C.C.No.2263/2022. Hence, according to the
learned counsel, the Notification dated 19.07.2012 cannot be
termed as establishment of Special Court for NIA cases as
contemplated under the provision of Section 22 (3) of the NIA
Act. Accordingly, the learned counsel posit that the very remand
of petitioner in Cr.No.63/2022 to the judicial custody and
subsequent order of taking cognizance by the learned Special
Court amounts to illegal detention of the petitioner.
Consequently, he supplicate to set aside the cognizance order
and to transfer the Special case to Principal District and Sessions
Court at Dharwad, which has a proper jurisdiction to try the case
as per Section 22 of the NIA Act.
6. In order to buttress his arguments, he relied upon
the judgment of the Hon'ble Supreme Court in the case of
Gautam Navlakha vs. National Investigation Agency
reported in (2021) 2 Crimes 295.
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7. Refuting the above submissions, learned SPP-I
Sri Belliappa would contend that before adverting the merits and
jurisdiction of the trial Court to try the case against the
petitioner as contended by learned counsel for the petitioner,
prima facie, this Habeas Corpus Petition is not maintainable
either on fact or on law for the reason that the petitioner is not
either in judicial custody or under illegal detention and he has
been released on bail by the learned Special Court. Such being
the position, the petitioner is not under illegal detention by any
authority under any law. He would further contend that even
otherwise, the arguments canvassed by the learned counsel for
the petitioner does not hold good for the reason that as per
Section 11(2) of NIA Act, if a 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.
Similarly, as per Section 22 (2) (i) of the NIA Act with regard to
the jurisdiction aspect, the decision of the State Government
would be final. Hence, if the petitioner is aggrieved on the aspect
of jurisdiction, he shall approach either the Central Government
or the State Government as contemplated under the above
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provisions. Accordingly, learned SPP-I prays to dismiss the writ
petition.
8. Having heard the learned counsel for the parties, the
only point that would arise for our consideration is:
"Whether the writ of Habeas Corpus is
maintainable in the facts and circumstances of the
case?"
9. Before delving into the merits of the case, in respect
of the jurisdiction of the Special Court to take cognizance against
the petitioner in Spl.C.C.No.2263/2022, it is apposite to consider
the primary aspect of maintainability of this Habeas Corpus
petition.
10. The principle of Habeas Corpus has been
incorporated in Constitutional law to protect individual liberty.
Article 21 of the Constitution provides that no person shall be
deprived of life or personal liberty except in accordance with the
procedure established by law. The object of writ of Habeas
Corpus is to secure release of a person, who is illegally
restrained of his/her liberty.
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11. In the instant case, the petitioner is on bail in
Spl.C.C.No.2263/2022 and the same is not disputed by the
learned counsel for the petitioner. In order to invoke writ of
Habeas Corpus, a person must be in actual detention or
imprisonment and such action must be illegal or
unconstitutional. If a person is not actually detained, obviously a
writ of Habeas Corpus would not lie. Hence, we find substantial
force in the plea of learned SPP-I
Sri Belliappa.
12. The grievance of the petitioner in respect of the
cognizance order passed by a wrong forum/Court which is not
allegedly designated to try the cases under the NIA Act, the only
remedy available to the petitioner is to approach the Central or
State Government as contemplated under Sections 11 (1) and
22 (2) (i) of the NIA Act. The same cannot be challenged by
filing a writ of Habeas Corpus. Hence, the said contention of
learned counsel for the petitioner in that regard is also liable to
be rejected. The judgment relied on by the learned counsel is
not applicable to the facts and circumstances of the case on
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hand. Hence, a detailed discussion is not required on the same.
In such circumstances, suffice to hold that the writ petition is not
maintainable and the same is liable to dismissed.
13. Accordingly, we answer the point raised above in the
negative and proceed to pass the following:
ORDER
i) The writ petition is dismissed.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(RAJESH RAI K) JUDGE VM