Gauhati High Court
Mamunur Rashid vs The State Of Assam on 5 December, 2025
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GAHC010106272025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1727/2025
MAMUNUR RASHID
SON OF EUSUF ALI
VILL HAJI PARA
P.S. HOWLY
DIST. BARPETA, ASSAM
PIN-781316.
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MR. A M AHMED,B
DAS,MR. I U CHOWDHURY
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 05.12.2025
1. Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor appearing for the State.
2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioner, namely, Mamunur Rashid, who has been detained behind the bars since 12.09.2022, (for more than three months, three years) in connection with Sessions Case No. 10/2023 arising out of Barpeta P.S. Case No. 763/2022 Page No.# 2/9 under Sections 120B/121/121A of IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967 pending before the Court of learned Sessions Judge, Barpeta.
3. The gist of accusation in this case is that, on 28.07.2022,an FIR was lodged before Barpeta Police Station, inter-alia, stating that based on intelligence inputs and local enquiries on certain information that came to light during the investigating of two other Barpeta Police Station Cases, namely, (i) Barpeta P.S. Case No. 268/2022 under Sections 120(B)/121/121(A) IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967 read with Section 12(1)(c) of the Passport Act, 1967 and 14 A(b) of the Foreigners Act, 1946 and (ii) Barpeta P.S. Case No. 419/2022 under Sections 120(B)/121/121A IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967 regarding the existence of a Jehadi (terror) outfit based in Bangladesh and operating in the district of Barpeta, it was learnt that several modules of the banned Ansarullah Bangla Team (ABT) having affiliation to Al-Qaeda in the Indian Subcontinent (AQIS) being active in Barpeta district and that the members/supporters of ABT are indoctrinating and motivating youth/men of Barpeta district to join such Jehadi outfits and work in modules "Ansars" (Sleeper cells) for creating a base for Al-Qaeda and its manifestations in various forms of names and styles in India, all of which are declared terrorist organisations in India as per the provisions of the Unlawful Activities (Prevention) Act, 1967. On examination, it is found that those modules had hatched a criminal conspiracy with other members of ABT along with a group of men/youth of the district for facilitating further training of indoctrinated youth/men for waging Jehad and related terrorist activities in the district where they are working towards advocating, abetting, inciting, assisting, harbouring, Page No.# 3/9 recruiting and collecting funds for organizing and committing unlawful and terrorist activities in the name of Jehad.
4. In the said FIR dated 28.07.2022, initially eight such persons involved in the case were named and others were yet to be identified. Said FIR was accordingly registered as Barpeta Police Station Case No. 763/2022 under Sections 120B/121/121-A IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967.
5. During the course of the investigation, many such accused persons of the case were arrested including the petitioner and on completion of the investigation of the case, charge-sheet in said Barpeta P.S. Case No. 763/2022 was submitted on 17.01.2023 against fifteen such arrested persons, including the petitioner. After submission of the charge-sheet on 17.01.2023, said Barpeta P.S. Case No. 763/2022 was re-numbered as Sessions Case No. 10/2023 before the Court of learned Sessions Judge, Barpeta.
6. This is for the second time the petitioner has approached this Court seeking bail. On an earlier occasion, the prayer for bail of the petitioner was rejected by a Co-ordinate Bench of this Court by order dated 04.03.2025 passed in Bail Application No. 100/2025.
7. At the outset, Mr. B. Sarma, the learned Additional Public Prosecutor raised the question of maintainability of the instant bail application under Section 483 of BNSS, 2023. He submits that the instant bail application, in its present form, is barred by Section 21 of the National Investigation Agency Act, 2008, inasmuch as only an appeal lies under Section 21 of the NIA Act 2008 against the order of the Special Court refusing to grant bail to the present petitioner. He submits that since the offences involved in this case are also under the provisions of Unlawful Activities (Prevention) Act, 1967 and since the Page No.# 4/9 said Act has been incorporated in the schedule of the National Investigation Agency Act, 2008, and since the trial of Sessions Case No. 10/2023 is pending before the designated Special Court under the National Investigation Agency Act, 2008,the appeal against refusal of grant of bail, by such court, lies only before a Division Bench of the High Court.
8. He submits that, in this regard, the Government of Assam, by notification dated 31st May 2023 has designated all the Sessions Judges of Assam as Special Court under Section 22 of the National Investigation Agency Act, 2008, for trial of cases under the said Act investigated by the State Agencies. He submits that since under Section 13(1) of the NIA Act, 2008 every scheduled offence i.e., investigated by the Investigating Agency of the State Government is to be tried exclusively by Special Court within whose local jurisdiction it was committed and since Section 21 of the said Act provides that against an order of refusal of bail of the Special Court, an appeal shall lie to High Court, the bail application under Section 483 does not lie in the instant case. In support of his submission, the learned Additional Public Prosecutor has cited a ruling of the Full Bench of the High Court of Madras in the case of "Jaffar Sathiq Vs. State" reported in "2021 SSC Online Madras 2593" as well as the judgment of the Apex Court in the case of " Bikramjit Singh Vs. State of Punjab" reported in "(2020) 10 SCC 616".
9. The learned Additional Public Prosecutor has submitted that the Full Bench of Madras High Court, relying on the Apex Court's judgment in the case of "Bikramjit Singh vs. State of Punjab " (supra) has categorically held that rejection of bail by the Special Court in matters concerning offences under Unlawful Activities (Prevention) Act, 1967 can be challenged only by way of an appeal under Section 21 of the NIA Act, 2008 before a Division Bench of the Page No.# 5/9 High Court and not by way of an application under Section 439 of Cr.P.C. He submits that several other High Courts have also followed this proposition of law as laid down by the Full Bench of Madras High Court.
10. He further submits that since the offence involved in this case are under the provisions of Unlawful Activities (Prevention) Act, 1967 which is incorporated in the schedule to the National Investigating Agency Act, 2008, such offences are triable only by a Special Court designated under Section 22 of the said Act and any order of rejection of bail by the Special Court is appealable under Section 21 of the said Act before the Division Bench of the High Court and, therefore, no application under Section 483 of BNSS is maintainable in this case.
11. On the other hand, Mr. A. Ahmed, learned counsel for the petitioner has submitted that he is not disputing the settled position of law that an offence under any of the Acts incorporated in the schedule of the National Investigation Agency Act, 2008 is triable only by a Special Court designated under the said Act, however, he submits that if such an offence is not investigated by the National Investigating Agency or has not been transferred to the State Investigating Agencies under Section 7 of the said Act, then the provisions of National Investigation Agency Act, 2008 would not be applicable in case of bail, rather the provisions of BNSS, 2023 would be applicable in such case.
12. He submits that the object and reasons for enacting the National Investigating Agency Act, 2008 was to provide for a specialized investigating agency to investigate the cases involving offences relating to large scale terrorism sponsored from across the borders. He, however, submits that investigation of scheduled offences may be carried out by the National Investigation Agency only if the conditions mentioned in Section 6 of the said Act are fulfilled.
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13. He submits that if in case a scheduled offence is not investigated by the National Investigation Agency nor the investigation of such cases transferred to the State agency under Section 7 of the said Act, the powers of State Investigating Agencies to investigate cases involving scheduled offences remain unaffected by virtue of the Section 10 of the said Act.
14. He submits that as in the instant case, the case was investigated by the State Investigating Agency, hence, the provision of appeal contained in Section 21 of the National Investigation Agency Act is not applicable in this case and an application under Section 483 of BNSS would be maintainable, if an accused facing trial of such offences is seeking bail. In support of his submission, he has cited the ruling of the Full Bench of the Patna High Court in the case of "Bahadur Kora and Others Vs. State of Bihar " reported in "2015 (2) MWN (Cr.) 305 (FB) (Pat.)".
15. Considering the submissions made by learned counsel for both sides as well as the facts of this case, this Court find it appropriate to discuss the question of maintainability of the instant bail application in its present form, at the very outset.
16. In the instant case, apart from the offences under the provisions of Indian Penal Code, the offences under Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967 are also involved. The Unlawful Activities (Prevention) Act, 1967 has been included in the schedule to the National Investigating Agency Act, 2008. Hence, the State Government has power to designate Special Court for trial of the offences under the enactments specified in the schedule to the said Act.
17. The State of Assam, by notification dated 31 st May 2023, on recommendation of the Guwahati High Court has designated the Courts of Page No.# 7/9 Sessions Judges in the State of Assam as Special Court under Section 22 of the National Investigation Agency Act, 2008 for trial of cases under the said Act investigated by the State Agency. Thus, for the state of Assam for any offence specified in the acts contained in the schedule to the National Investigation Agency Act, 2008, the trial has to be conducted in the designated Special Court under Section 22 of the National Investigation Agency Act.
18. The Apex Court in the case of "Bikramjit Singh Vs. State of Punjab"
(supra) has categorically observed that the Special Court has exclusive jurisdiction over every schedule offence investigated by the Investigating Agency of the State.
19. The Full Bench of the High Court of Madras in the case of " Jaffar Sathiq Vs. State" (supra) has observed as follows:-
"14. In Bahadur Kora (supra), the Full Bench of the Patna High Court had steered clear of a literal reading of the Act, and had resorted to a purposive interpretation of Sections 7, 13 and 22 of the NIA Act, 2008, to hold that the provisions of Chapter IV would apply only when the NIA had transferred the investigation to the State police under Section 7(b) of the Act. Though the logic and reasoning of the Full Bench did appeal to us, we are, however, of the considered view that in view of the authoritative pronouncement of the Supreme Court in Bikramjit Singh (supra), the applicability of the NIA Act, 2008 for offences under the UAPA, 1967, is no longer open to doubt. Consequently, the judgment of the Full Bench of the Patna High Court must be taken to be impliedly overruled by the decision of the Supreme Court in Bikramjit Singh (supra).
15. Once it is held that Chapter IV of the NIA Act, 2008, would apply to a Court of Session trying the UAPA offences by virtue of the powers conferred under Section 22(3) of the NIA Act, 2008, the inevitable consequence is that an order of the Court of Session rejecting an application for bail in a matter concerning the UAPA offences can be challenged only by way of an appeal under Section 21 of the NIA Act, 2008, before a Division Bench of this Court, and not by way of an application under Section 439 Cr.P.C. The position would remain the same even in cases where composite offences are alleged to have been committed (See State of A.P. v. Mohd. Hussain).
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20. Moreover, though, the High Court of Patna in the case of " Bahadur Kora and Ors. Vs. State of Bihar" (supra) has observed that even for offences punishable under the provision of Unlawful Activities (Prevention) Act, 1967 shall be tried by the Courts as provided under the Code of Criminal Procedure and not in accordance with the special procedure, unless under the National Investigation Agency Act, (i) the investigation of such cases is entrusted by the Central Government to NIA, and (ii) the NIA transfers the same to the Investigating Agency of the State Government, however, it appears that in the case of "Bahadur Kora and Ors. Vs. State of Bihar" (supra), the Government of Bihar had not designated any Special Court under Section 22 of the National Investigation Agency Act. Whereas, in the instant case, the Notification dated 31.05.2023 of the government of Assam (as referred above) has already designated all the Sessions Judges in Assam as Special Court under Section 22 of the NIA Act for trial of cases under the National Investigation Agency Act, 2008 investigated by the State Agency. Hence, the facts of the present case are distinguishable from the facts of the case in " Bahadur Kora and Ors. Vs. State of Bihar" (supra).
21. Otherwise also in view of the observation of the Apex Court in the case of "Bikramjit Singh Vs. State of Punjab " (supra) as well as that of the Full Bench of the High Court of Madras in the case of " Jaffar Sathiq Vs. State" (supra), there remains no doubt that the cases involving scheduled offences under National Investigation Agency Act, 2008, even if investigated by the State Investigating Agency are exclusively triable by Special Courts only. This Court is, therefore, in agreement with the observation of the High Court of Madras made in the case of "Jaffar Sathiq Vs. State" (supra).
22. Thus, for any scheduled offence of National Investigating Agency Act, Page No.# 9/9 2008, even if the investigation is conducted by the State Investigating Agencies, the Special Court, under the said Act, has the exclusive jurisdiction to try such cases. Under the statutory provisions contained in the said Act, any order of rejection of bail in such cases by the Special Court is appealable under Section 21(4) of the National Investigating Agency Act, 2008 and as such an application for bail under Section 483 is not maintainable.
23. The question which may now arise that whether the instant bail application under Section 483 of BNSS may be considered as an appeal under section 21(4) of the National Investigation Agency Act or can it be converted into such an appeal. This Court is of considered opinion that since for filing an appeal under Section 21(4) of the said Act, a period of limitation has been prescribed under Section 21(5) of the National Investigation Agency Act, 2008, it would be appropriate if the said question is considered by a Court having jurisdiction to consider an appeal under Section 21 of the National Investigation Agency Act, 2008.
24. Since, an appeal under Section 21 of the National Investigation Agency Act lies before the Division Bench of the High Court, the Registry is directed to lay this matter before the Hon'ble the Chief Justice for appropriate orders in terms of the provision of Section 21(2) of the National Investigating Agency Act, 2008.
25. The Registry to do the needful accordingly.
JUDGE Comparing Assistant