Allahabad High Court
Maulana Kaleem Siddiqui vs State Of U.P. Thru.Prin.Secy.Home Lko. on 27 May, 2022
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 28 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5425 of 2022 Applicant :- Maulana Kaleem Siddiqui Opposite Party :- State Of U.P. Thru.Prin.Secy.Home Lko. Counsel for Applicant :- Ishan Baghel,Mohemmed Amir Naqvi Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.
1. Heard Sri I.B. Singh, learned Senior Counsel assisted by Sri Ishan Baghel, learned counsel for the applicant, Sri Shiv Nath Tilhari, learned A.G.A.-I for the State and perused the material available on record.
2. At the outset, learned A.G.A.-I for the State has raised a preliminary objection that the present bail is not maintainable as it cannot be heard before this Court as it is hit by Section 21 of The National Investigation Agency Act, 2008 (hereinafter referred to as "the NIA Act"). An appeal ought to have been filed on behalf of the applicant under Section 21 of the NIA Act to be heard by a division bench.
3. Learned Senior Counsel for the applicant has pressed the bail application on the ground that trial of the case by Special Court without following Section 6 of the NIA Act is illegal. The case has not been notified to the Central Government as provided under Section 6 of the NIA Act, which is being reproduced hereinbelow :-
"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 in India.
(9) For the purposes of sub-section (8), the Special Court at New Delhi shall have the jurisdiction."
4. Learned Senior Counsel for the applicant has placed much reliance on the judgment of this Court dated 26.2.2019 passed in Vineet Kumar Dixit vs. State of U.P.1, wherein it has been opined after relying on the judgments of Patna High Court and Rajasthan High Court, that the cases even where scheduled offences punishable under the provisions of Schedule have been alleged, shall be tried by the courts as provided for under the Code of Criminal Procedure, 1973, and not in accordance with the special procedure provided under the Act unless (i) The investigation of such cases is entrusted by the Central Government to the N.I.A. and (ii) The N.I.A. transfers the same to the investigating agency of State Government. The special procedure under the NIA Act would attract only when the Central Government entrusted the investigation to the NIA, who in turn either entered into the investigation itself or transfers the investigation to the State Investigation Agency as prescribed in Sections 6 and 7 of the NIA Act. There is nothing on record which may suggest that in the instant case, any of the eventuality mentioned in Sections 6 and 7 of the NIA Act exists and therefore, the bail application filed by the applicants/accused persons is maintainable under Section 439 of the Cr.P.C. The objection of the learned A.G.A.-I, is therefore, without any substance and is not acceptable.
5. Learned Senior Counsel has also placed reliance on the judgments of the Andhra Pradesh High Court in Cherukuri Kutumbayya v. The Municipal Council, Vijayawada, wherein it has been opined that :-
"6. The expression "save as otherwise provided" in Sub-Section (2) means ''except to the extent specific provision is made'. In other words Sub-Section (2) will come into play only in cases which are not governed by any other specific provisions of law. Therefore, it is only where there is no other special provision in respect to any other type of land this Sub-Section is attracted. Since the legislature has enacted a specific provision in regard to agricultural lands, it is reasonable to infer that that category of lands contemplated by that Sub-Section should be governed by it.
6. Per contra, learned A.G.A.-I has vehemently opposed the bail application on the ground that the applicant has not raised any objection at the trial court regarding non-compliance of Section 6, regarding the case being tried by the Special Court under the NIA Act. Had so been the case, the trial would have been proceeded before the Sessions Judge.
7. He has further placed much reliance on Section 10 of the NIA Act, which reads as follows :-
" 10. Power of State Government to investigate Scheduled Offences.- 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."
8. Learned A.G.A.-I has also placed much reliance on Section 21 of the NIA Act, which reads as under :-
"21. Appeals.-(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
(2) 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.
(3) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court.
(4) 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.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."
9. Learned A.G.A.-I has stated that as per sub-section (4) of Section 21, it is stated 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 regarding bail. The same has to be heard by a division bench of the High Court. Learned A.G.A.-I has further stated that offence committed herein is also under Section 121(A) which is the scheduled offence and the said scheduled offence can be tried by a Special Court as provided under Section 10 of the NIA Act. The Schedule is being reproduced hereinunder :-
THE SCHEDULE [See Section 2(1)(f)]
1. The Explosive Substances Act, 1908 (6 of 1908) 1-A. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 [2016 (30 of 2016)];
4. The Suppression of 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 (45 of 1860) [sections 121 to 130 (both inclusive);
b. Sections 370 and 370-A of Chapter XVI of the Indian Penal Code (45 of 1860);
c. Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860)..
d. Sub-section (1-AA) of section 25 of Chapter V of the Arms Act, 1959 (54 of 1959);
e. Section 66-F of Chapter XI of the Information Technology Act, 2000 (21 of 2000).
10. Learned A.G.A.-I has stated that the judgment referred to by the learned Senior Counsel does not apply to the present case, as by that time, there was no notification by the State Government for establishing the Special Courts. The Special Court has been established in the State of U.P. on 20.04.2021. The notification is as under:-
UTTAR PRADESH SHASAN GRIH (POLICE) ANUBHAG-9 In pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of notification no. 1002/VI-P-9-21-31(75)/2017, dated April 20, 2021.
NOTIFICATION No. 1002/VI-P-9-21-31(75)/2017 Lucknow: Dated: April 20, 2021 In exercise of the powers conferred under sub-section (1) of Section 22 of the National Investigation Agency Act, 2008 (Act No. 34 of 2008), the Governor with the concurrence of Hon'ble High Court of Judicature at Allahabad, is pleased to designate the 3rd Senior most Court of Additional District and Session Judge, Lucknow as Special Court having territorial jurisdiction of whole state of Uttar Pradesh for the trial of all offences as specified in the Schedule appended to the aforesaid Act, which are investigated by Anti-Terror Squad/State Police of Uttar Pradesh.
By Order, (Awanish Kumar Awasthi) Additional Chief Secretary
11. Learned A.G.A.-I has further stated that the present FIR No. 09 of 2020 was lodged on 20.6.2021 i.e. after the notification of the State Government and the applicant is in jail since 22.9.2021 and the bail was rejected on 03.02.2022. All these events have occurred after the establishment of Special Courts by the State Government.
12. Learned A.G.A.-I has further stated that in the present subject matter, a letter has been sent by the Inspector General, ATS, Uttar Pradesh, Lucknow, Dr. G.K. Goswami, on September, 2, 2021 wherein a report has been sent to the Home Department vide letter no. ATS-25-2-(09)/2021/6939 regarding the present case. It has further been stated that the Special Secretary, Home State of U.P. has sent a letter to the Ministry of Home Affairs, Government of India to the same effect.
13. Learned A.G.A.-I has placed much reliance on Section 22 of the NIA Act, which reads as under :-
" 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 designated 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 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 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."
14. Learned A.G.A.-I has stated that on the date when the Special Court was designated by the State Government, the trial of any offence investigated by the State Government under the provisions of the NIA Act, it would have been required to be held before the Special Court shall stand transferred to that Court on the date, it is constituted.
15. Learned A.G.A.-I has further stated that under Section 22, the word "Agency" which has been used in sub-section (1) of Section 13 shall be construed as a reference to "Investigation Agency of the State Government". To buttress his arguments, learned Senior counsel has placed much reliance on the judgment of the Supreme Court passed in Bikramjit Singh versus State of Punjab,2 wherein it has been stated that:-
"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 Session. This Scheme has been completely done away with by the NIA Act, 2008 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. Thus, under the aforesaid Scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, "the Court" being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgement has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial inter alia upon a police report of such facts."
16. Learned A.G.A.-I has stated that scheduled offences, 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 the NIA Act.
Section 13(1) of the NIA Act, which begins in a notion reads as under :-
"13. Jurisdiction of Special Courts.-(1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed."
17. The aforesaid Section 13(1) of the NIA Act 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 jurisdiction it was committed.
18. When the cases pertaining to the scheduled offence are to be tried by a Special Court, then Section 21 of the NIA Act would categorically apply to the case and an appeal shall only lie to the said case, before a division bench of the High Court.
19. Thus, it follows from the aforesaid averments of the parties that the Special Court in the State has been established vide notification no. 1002/VI-P-9-21-31(75)/2017, and the bail application of the applicant has been rejected by the Special Court under NIA Act vide order dated 3.2.2022. No objection whatsoever, has been raised by the applicant before the designated court and the provisions of Section 21(4) are applicable to the present case. Furthermore, Section 6 of the NIA Act has been complied with. The bail application filed without jurisdiction before this Court is, thus, not maintainable.
20. The bail application is dismissed with a liberty to file an application for appeal under Section 21 of the NIA Act before the appropriate bench.
21. The counsel for the applicant shall be returned the certified copies of the orders and other relevant documents, after keeping photocopies thereof, as per the Rules of the Allahabad High Court.
Order Date :- 27.5.2022 Shalini (Justice Krishan Pahal)