Jharkhand High Court
Rakesh Saw @ Sahu @ Rakesh Kumar Sahu vs The State Of Jharkhand ... ... Opposite ... on 16 December, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad, Rongon Mukhopadhyay
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 5937 of 2022
Rakesh Saw @ Sahu @ Rakesh Kumar Sahu, aged about 30 years, son of
Kouleshwar Saw, resident of Village-Gure, P.O. & P.S. - Herhanj,
District-Latehar, Jharkhand.
... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Anil Kumar, Advocate
Mr. Brajesh Kumar Singh, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. Piyush Chitresh, AC to AG
Mr. Deepankar Roy, AC to AG
Mr. Vishwanath Ray, A.P.P.
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CAV on 08.09.2022 Pronounced/Delivered on 16.12.2022
Per Dr. Ravi Ranjan, C.J.
1. The instant application has been filed under Section 439 and 440 of the Code of Criminal Procedure for grant of regular bail in connection with S.T. No.71B/2013 arising out of Herhanj P.S. Case No. 14 of 2010 corresponding to G.R. Case No. 302 of 2010 registered under Sections 147, 148, 149, 307, 353, 332 of the I.P.C., 27 of the Arms Act, 17 of C.L.A. Act and 13 of U.A.P.A. Act.
2. The learned Single Judge of this Court, while hearing the bail application, has passed the order dated 27.06.2022 which reads as under:
―1. Since the matter has already been decided in detail by this Court in Criminal Revision No.994 of 2019 vide order dated 29.09.2021 in the case of Bhaskar Chakravarty @ Bhaskar Chakraborty Versus the State of Jharkhand.[2]
2. Today learned counsel for the State has placed the order dated 23.12.2021 passed in Cr. Appeal (DB) No.249 of 2021.
3. Considering the above facts, let the matter be referred to Hon'ble the Chief Justice for consideration and for the appropriate order.‖
3. This Court has perused the order dated 29.09.2021 passed in Criminal Revision No. 994 of 2019 whereby and whereunder the learned Single Judge has come to the opinion after going through the aims and objects of the National Investigating Agency Act 2008 that the scheduled offence is multi-dimensional, has to be investigated by the National Investigating Agency. But considering the nature of offence, if it is to be investigated by the State Agency then the case has to be tried by the Special Court created by the State Government under Section 22 of the N.I.A. Act.
The learned Single Judge has further come to the opinion that the scheduled offence can be investigated by two agencies, i.e., either by the National Investigating Agency or by the State Agency. If the investigation is done by the National Investigation Agency then the jurisdiction will be the Special Court created by the Central Government. But, if the investigation is done by the State Agency then the jurisdiction will be the Special Court designated by the State Government under Section 22 of the N.I.A. Act. In both the cases, the procedure prescribed under the N.I.A. Act will be applicable.
The learned Single Judge further is of the view that the jurisdiction lies with the Division Bench by taking into consideration the facts and circumstances of the instant revision petition, as such, the jurisdiction lies with the Division Bench under the appellate jurisdiction as prescribed under Section 21 of the N.I.A. Act and accordingly, the criminal revision application has been held to be not maintainable and the same had [3] been dismissed. For ready reference, the extract of the said order reads as under:
―...
From mere perusal of the aims and objects of the Act also it is clear that if the scheduled offence is multi-dimensional has to be investigated by the National Investigating Agency. But considering the nature of offence, if it is to be investigated by the State Agency then the case has to be tried by the Special Court created by the State Government under Section 22 of the N.I.A. Act.
Thus, the scheduled offence can be investigated by two agencies i.e. either by the National Investigating Agency or by the State Agency. If the investigation is done by the National Investigation Agency then the jurisdiction will be the Special Court created by the Central Government. But, if the investigation is done by the State Agency then the jurisdiction will be Special Court designated by the State Government under Section 22 of the N.I.A. Act. In both the cases, the procedure prescribed under the N.I.A. Act will be applicable.
Viewing to the present case, it is not in dispute that the offence committed is the scheduled offence and it has been investigated by the State Agency. The jurisdiction has been exercised by the Sessions Court. In view of Section 22(3) of the N.I.A. Act, it will be deemed to be Special Court and the procedure prescribed under the N.I.A. Act will be applicable.
In view of above discussion, this Court finds that the jurisdiction lies with the Division Bench under the appellate jurisdiction as prescribed under section 21 of the N.I.A. Act. Thus, this Court finds that the criminal revision application is not maintainable and, accordingly, the same is, hereby, dismissed.‖
4. This Court has also gone across the order passed by the Division Bench of this Court in Cr. Appeal (DB) No. 249 of 2021 wherein an order was passed on 23.12.2021, whereby and whereunder, the aforesaid criminal appeal has been held to be not maintainable before the Division Bench in the nature of a criminal appeal. For ready reference, the order dated 23.12.2021 reads as under:
―Simply because the prosecution involves certain offences under Unlawful Activities (Prevention) Act, 1967, which is one of the Acts mentioned in the schedule to the NIA Act, the matter has been placed before the Division Bench at the instance of the learned counsel for the petitioner. However, the matter is not being investigated by the National Investigating Agency. The trial is also not being conducted by the Special Court constituted under the NIA Act, 2008, rather by the court of learned Additional Sessions Judge-I, Simdega. The case is also being investigated by the regular investigating agency of the state government. As such, considering the objects and reasons of the NIA Act and its relevant provisions, we are of the view that the petition for challenging the order rejecting the discharge petition would not be maintainable before the [4] Division Bench in the nature of a Criminal Appeal. Let it be placed before the appropriate Bench.‖
5. Since there are two divergent views of different Benches including the learned Single Judge and learned co-ordinate Division Bench, as such, the matter has been placed before the Chief Justice for taking a final view for consideration of the proposition laid down by Hon'ble Apex Court in Bikramjit Singh vs. State of Punjab, (2020) 10 SCC 616 and accordingly, the decision has been taken for consideration of the issue to be delved upon by a Larger Bench and the matter has been placed before this Court.
6. The issues which require to be considered herein is :
(i) Whether the Special Court alone has exclusive jurisdiction to try the offences under the U.A.P.A. Act?
(ii) Whether if offences attracted for commission of offence under UAPA Act a decision has been taken by the Special Court, the application under Sections 439 and 440 of Code of Criminal Procedure will be maintainable?
(iii) Whether the appeal will lie from any judgment, sentence or order not being an interlocutory order of a Special Court before the Division Bench as per the provision made under Section 21(2) of the N.I.A. Act, 2008?
7. All the issues are interlinked, as such, the same are being dealt with together in order to answer the issues.
8. The UAPA deals with "unlawful activity" and unlawful association". The unlawful activity and unlawful association has been defined under Sections 2(o) and 2(p). It further defines what are terrorist acts, terrorist gangs and [5] terrorists organizations under Sections 2(k), 2(l) and 2(m) and proscribes each of these in offences which are than fleshed out under its provisions. The important from the point of view of answering the reference in this case is the definition of "Court" as defined under Section 2(1)(d) of the UAPA Act, which reads as under:
"2. (d) ―court‖ means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under Section 11 or under Section 21 of the National Investigation Agency Act, 2008.‖
9. Equally important is the provision contained in Section 43 of the UAPA Act, which reads as follows:
―43.Officers competent to investigate offences under Chapters IV and VI -- Notwithstanding anything contained in the Code, no police officer, -
(a) in the case of the Delhi Special Police Establishment, constituted under sub-section (1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under sub-
section (1) of section 8 of the Code, below the rank of an Assistant Commissioner of Police;
[(ba) in the case of National Investigation Agency, below the rank of Inspector;]
(c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable underChapter IV orChapter VI.
[43-A. Power to arrest, search, etc -- Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.
43-B. Procedure of arrest, seizure, etc -- (1)Any officer arresting a person under section 43Ashall, as soon as may be, inform him of the grounds for such arrest.
[6](2) Every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer in charge of the nearest police station.
(3) The authority or officer to who many person or article is forwarded under sub-section (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code.
43-C. Application of provisions of Code -- The provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of this Act, to all arrests, searches and seizures made under this Act.
43-D. Modified application of certain provisions of the Code -- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and ―cognizable case‖ as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub- section (2), -
(a) the references to ―fifteen days‖, ―ninety days‖ and ―sixty days‖, wherever they occur, shall be construed as references to ―thirty days‖, ―ninety days‖ and ―ninety days‖ respectively;
(b) after the proviso, the following provisos shall be inserted, namely:
―Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.‖.
(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that -
(a) the reference in sub-section (1) thereof
(i) to ―the State Government‖ shall be construed as a reference to ―the Central Government or the State Government‖,
(ii) to ―order of the State Government‖ shall be construed as a reference to ―order of the Central Government or the State Government, as the case may be‖; and
(b) the reference in sub-section (2) thereof, to ―the State Government‖ shall be construed as a reference to ―the Central Government or the State Government, as the case may be‖.
(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.
(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in [7] custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.
43-E. Presumption as to offences under section 15. -- In a prosecution for an offence under section 15, if it is proved -
(a) that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence; or
(b) that by the evidence of the expert the finger-prints of the accused or any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence, the Court shall presume, unless the contrary is shown, that the accused has committed such offence.
43-F. Obligation to furnish information. -- (1) Notwithstanding anything contained in any other law, the officer investigating any offence under this Act, with the prior approval in writing of an officer not below the rank of a Superintendent of Police, may require any officer or authority of the Central Government or a State Government or a local authority or a bank, or a company, or a firm or any other institution, establishment, organisation or any individual to furnish information in his or their possession in relation to such offence, on points or matters, where the investigating officer has reason to believe that such information will be useful for, or relevant to, the purposes of this Act. (2) The failure to furnish the information called for under sub-section (1), or deliberately furnishing false information shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(3) Notwithstanding anything contained in the Code, an offence under sub- section (2) shall be tried as a summary case and the procedure prescribed in Chapter XXI of the said Code [except sub-section (2) of section 262] shall be applicable thereto.]‖
10. It would be evident from the bare reading of the provisions of offences under UAPA under Sections 16, 17, 18, 18-A, 18-B, 19, 20, 22-B, 22-C and 23, would be exclusively triable by a Court of Session when read with [8] Part II of the First Schedule to the Code. It is only after the NIA Act was enacted that the definition of "court" was extended to include Special Courts that were set up under Section 11 or Section 22 of the NIA Act.
11. We have considered the NIA Act, the preamble of the said Act indicates the thrust of the provisions of that Act to be an Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the 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, its agencies and other international organisations and for matters connected therewith or incidental thereto.
Under Section 2(g) "Scheduled Offence" is defined as follows:
―2. (g) ―Scheduled Offence‖ means an offence specified in the Schedule.‖ Under Section 2(h) "Special Court" has been defined as follows:
―2 (h) ―Special Court‖ means a Special Court constituted under Section 11 or, as the case may be, under Section 22.‖ Section 3 constitutes a National Investigation Agency which is a special agency set up for prosecution of offences under the Acts specified in the Schedule by the Central Government.
Section 10 confers power upon the State Government to investigate scheduled offences and prosecute any scheduled offence or other offences under any law for the time being in force.
Section 11 and 22 which confer power upon the Central Government and the State Government respectively, to designate the Courts of Session as Special Courts, are as follows:[9]
―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‖. [10]
(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.‖ Section 13 speaks of the jurisdiction of the Special Courts as follows:
―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.
(2) If, having regard to the exigencies of the situation prevailing in a State if--
(a) it is not possible to have a fair, impartial or speedy trial; or
(b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a Judge of the Special Court or any of them; or
(c) it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State. (3) The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney General for India, be supported by an affidavit or affirmation.‖ Section 14 clarifies that Special Courts may also try offences other than the Scheduled Offences as follows:
―14. Powers of Special Courts with respect to other offences.--(1) When trying any offence, a Special Court may also try any other offence with which the accused may, under the Code be charged, at the same trial if the offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.‖ Section 16 sets out the procedure and powers of Special Courts as follows:
―16. Procedure and powers of Special Courts.--(1) A Special Court may take cognizance of any offence, without the accused being committed to it for [11] trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.
(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code shall, so far as may be, apply to such trial:
Provided that when, in the course of a summary trial under this sub- section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to, and in relation to, a Special Court as they apply to and in relation to a Magistrate:
Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees.
(3) Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.
(4) Subject to the other provisions of this Act, every case transferred to a Special Court under sub-section (2) of Section 13 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Special Court.
(5) Notwithstanding anything contained in the Code, but subject to the provisions of Section 299 of the Code, a Special Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.‖
12. From reading of all these provisions, it would be evident that all the offences under UAPA, the Special Court alone has exclusive jurisdiction to try such offences. It is also more evident from perusal of the provision 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.
Sub-section (2) of Section 16 is that even though offences may be punishable with imprisonment for a term not exceeding three years, the Special Court alone is to try such offence.
[12]
In the context, Section 21 of the NIA Act is also required to be seen, which reads as follows:
"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."
It is thus evident that sub-section (1) of Section 21 starts with a non obstante clause by making a provision that 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.
Sub-section (2) of Section 21 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 without a period of three months from the date of admission of the appeal.
Sub-section (3) of Section 21 provides that no appeal or revision shall lie to any Court from any judgment, sentence or order including an interlocutory order of a Special Court.
[13]
Sub-section (4) of Section 21 provides that an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
13. Section 6 of the NIA Act is also relevant to be referred here by which the power has been conferred upon the National Investigation Agency to investigate the scheduled offences on receipt of information and recording thereof under Section 154 of the Code relating to any scheduled offences.
Sub-section (2) of Section 6 provides that on receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
Sub-section (3) of Section 6 provides that 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.
Sub-section (4) of Section 6 provides that 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.
Sub-section (5) of Section 6 provides that 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. [14]
14. It is thus evident that the scheduled offences as is in the schedule within the meaning of Section 2(1)(f) of the NIA Act, 2008, such cases are mandatorily to be tried by the Special Court constituted under the NIA Act, 2008. The moment the offence has been committed, said to be defined under Section 2(1)(f), the offence will be the scheduled offence and once it is scheduled offence, the same is mandatorily to be tried by Special Courts set up under the NIA Act, either set up by the Central Government under Section 11 or by the State Government under Section 22 of the Act.
15. The moment such offence is to be tried by the Special Court constituted either under Section 11 or under Section 22, as the case may be, and if any order is being passed either by way of judgment, sentence or order, not being an interlocutory order, the same will be appealable to the High Courts on facts and law as would appear from sub-section (1) of Section 21 which is to be heard by a Bench of two Judges of the High Court as would appear from sub-section (2) of Section 21 of the NIA Act, 2008.
16. This Court has also considered, while answering the reference, the judicial pronouncement of Hon'ble Apex Court in Bikramjit Singh vs. State of Punjab (supra) wherein the Hon'ble Apex Court after making reference of various sections of UAPA and NIA Act, came to the observation as under
paragraph-22 by taking note of the scheme of NIA Act which envisages that offences under the enactments contained in the Schedule to the Act are now to be tried exclusively by Special Courts set up under that Act. These may be set up by the Central Government under Section 11 or by the State Government under Section 22 of the Act. For ready reference, paragraph-
22 of the said judgment is being reproduced as under:
―22. The scheme of the NIA Act is that offences under the enactments contained in the Schedule to the Act are now to be tried exclusively by [15] Special Courts set up under that Act. These may be set up by the Central Government under Section 11 or by the State Government under Section 22 of the Act. On the facts of the present case, we are concerned with Section 22 as Special Courts have been set up within the State of Punjab by a Notification dated 10-6-2014, which reads as follows:
―PART III GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND JUSTICE (JUDICIAL-1 BRANCH) NOTIFICATION 10-6-2014 No. S.O. 141/C.A.34/2008/S.22/2014.--In exercise of the powers conferred under sub-section (1) of Section 22 of the National Investigation Agency Act, 2008 (Central Act 34 of 2008), and all other powers enabling him in this behalf, the Governor of Punjab, with the concurrence of Hon'ble Chief Justice of the High Court of Punjab and Haryana, Chandigarh, is pleased to constitute the Courts of Session Judge and the First Additional Sessions Judge (for the area falling within their respective jurisdiction), at each district headquarter in the State, to be the Special Courts, for the trial of offences as specified in the Schedule appended to the aforesaid Act, which are investigated by the State Police.‖‖
17. It also requires to refer herein the observation made by Hon'ble Apex Court in the aforesaid judgment as under paragraph-25. Extract of the passage reads as follows:
"25. ... 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. ...‖
18. This Court, in view of the discussion made hereinabove and after taking into consideration the various provisions of the UAPA Act, 1967 and NIA Act, 2008 as also considering the judgment rendered by Hon'ble Apex Court in Bikramjit Singh vs. State of Punjab (supra), is of the view that since the offence emanates from Schedule-I of the NIA Act, 2008, will be scheduled offences and triable exclusively by the Special Courts which may take cognizance of an offence, without the accused being committed to it and as such, the decision since is to be passed either by way of a judgment, sentence or order, admittedly order not being in the nature of interlocutory, the same will be amenable under the appellate jurisdiction of the High [16] Court to be heard by the Division Bench of the High Court as would appear from Section 21(1)(2) of the NIA Act, 2008.
19. Accordingly, the reference is answered.
20. Let the matter be placed before the appropriate Bench.
(Dr. Ravi Ranjan, C.J.) I agree (Sujit Narayan Prasad, J.) (Sujit Narayan Prasad, J.) I agree (Rongon Mukhopadhyay, J.) (Rongon Mukhopadhyay, J.) Saurabh /A.F.R.