Thottathil B.Radhakrishnan, J . 1. This appeal is filed invoking Section 21 of the National Investigation Agency Act, 2008, for short, “NIA Act”. Section 439 of the Code of Criminal Procedure which relates to the special powers of the High Court or Court of Session regarding bail and Section 43D of the Unlawful Activities (Prevention) Act, 1967, “UAP Act”, for short, are also referred as invoked.
2. Under appeal is the order of the Sessions Court, Thalassery which is the Court of Session of the division in which the offences are alleged to have been committed by different persons, including the appellant against whom first information report was registered as Crime No.780 of 2014 of Kadirur Police Station listing offences punishable under different provisions of the Indian Penal Code and Explosive Substances Act and Section 15(1)(a)(i) read with Sections 16
(a) and 19 of the UAP Act. The substance of the allegation is that on 1.9.2014, while one Manoj, a leader of RSS, was driving his Omni Van along with his friend Pramod through a public road at Kadirur, he was attacked by a group of CPI(M) workers with dangerous weapons, including explosive substances, and that bombs were hurled towards the van and the assailants thereupon inflicted grievous injuries on Manoj and thus murdered him. They also allegedly caused grievous injuries on Pramod with the intention to murder him. It is alleged that then again, the assailants hurled bombs with the intention to strike terror in the people at the place of occurrence and created a horrendous situation in that area. The appellant is also accused of having concealed and helped to harbour the main accused in the case after commission of the offence of murder of Manoj. The appellant was arrested on 15.9.2014. He is in custody since then. His application for bail was dismissed by the Court of Session on 16.10.2014.
3. During the pendency of this appeal, the case was handed over for investigation to the Central Bureau of Investigation, “CBI”, for short, governed by the provisions of the Delhi Special Police Establishment Act, 1946. CBI registered the case as CBI Crime No.RC.10(S)/ 2014/CBI/SCB/TVPM.
4. We have heard the learned senior counsel for the appellant and the learned standing counsel for the CBI.
5. The learned senior counsel for the appellant argued that the allegations made against the appellant-third accused do not contain any ingredient which would attract the provisions of the UAP Act and the totality of the allegations, even as per the first information statement, does not disclose any terrorist act and a nice distinction has to be maintained in understanding the term “terrorist act” in Section 15 of the UAP Act, bearing in mind the principles enunciated by the Hon'ble Supreme Court of India in Hitendra Vishnu Thakur v. State of Maharashtra [1994 SCC (Cri) 1087]. He criticised the procedure now adopted by the CBI in carrying out different proceedings before the Chief Judicial Magistrate, Ernakulam and obtaining orders in the course of investigation. It is argued that offences punishable under the UAP Act having been included, the case falls exclusively before the Sessions Court and that there is no question of committal proceedings. In support, reference is made to the decision of this Court in Ashruff v. State of Kerala [2010 (4) KLT 558]. The refusal to grant bail by the Court of Session is criticised as wholly unsustainable, even going by the materials.
6. Per contra, the learned standing counsel for the CBI argued that the investigation of the case having been handed over to the CBI, the proceedings are now carried with the Chief Judicial Magistrate's Court, which is the CBI Special Court, being treated as a Court for the committal proceedings. He argued that the materials available during the course of investigation as is disclosed through the case diary and the different inferences drawn by the investigating officer during the course of investigation clearly point to the fact that if the appellant-third accused is enlarged on bail, he would deflect the investigation. It is submitted that the investigation is at a crucial stage and the first information statement cannot be made the exclusive foundation to decide as to whether any inculpating material has been brought out during the course of investigation as against the appellant. He says that with the investigation so far, it appears that the criminal acts committed include criminal conspiracy in which the appellant-third accused was potential participant along with other assailants including the prime accused. Different inferential materials in this regard are also pointed out in the counter affidavit filed by the investigating officer on behalf of the third respondent CBI.
7. The submissions made by the learned counsel for parties give rise to three issues:
i. Is the impugned order appealable under Section 21 of the NIA Act?
ii. Could the proceedings being now carried through in the Court of the Chief Judicial Magistrate, Ernakulam at the instance of the CBI, be permitted to continue there?
iii. Is the impugned order liable to be interfered with, thereby granting bail to the appellant-third accused?
Issue Nos.i and ii
8. Section 2(1)(a) of the NIA Act defines the term “Agency” to mean the National Investigation Agency constituted under section 3 of that Act.
“Scheduled Office” is defined in Section 2(1)(g) of the NIA Act to mean an offence specified in the Schedule to that Act. The UAP Act is one of the legislations included in that Schedule. “Special Court” is defined in Section 2(1)(h) to mean a Special Court constituted under Section 11 or, as the case may be, under section 22 of that Act. Section 11 empowers the Central Government to constitute Special Courts for the trial of the scheduled offences. Section 22 provides that 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. Sub-section 2 of Section 22 prescribes modifications to the other relevant statutory provisions of the NIA Act, for the smooth operation of the statutory provisions in Section 22. The provision in sub-section 3 of Section 22 of the NIA Act is until a Special Court is constituted by the State Government under Section 22(1), notwithstanding anything contained in the Code, the jurisdiction conferred by the NIA Act on a Special Court shall 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 Chapter IV of the NIA Act. Therefore, notwithstanding anything contained in the Code of Criminal Procedure, a case of any offence specified in the Schedule of the NIA Act can be tried only by a Special Court constituted by the Central Government under Section 11 or a Special Court constituted by the State Government under Section 22(1) of that Act and in the absence of and until a Special Court is constituted by the State Government, the jurisdiction to try such an offence is exclusively with the Court of Session of the division in which such offence has been committed and that Court of Session shall have all the powers and shall follow the procedure provided under Chapter IV. Under Section 16(1), a Special Court is empowered to take cognizance of any offence, either on a complaint or on a police report, without the accused being committed to it for trial. No committal proceedings are, therefore, provided for. As rightly held in Ashruff (supra), since the Court of Session of the division in which the offence has been committed is enjoined with the authority to exercise the powers of the Special Court until a Special Court is constituted by the State Government, that Court is also empowered to take cognizance of the offence without a committal. We approve the views expressed and the law stated in Ashruff (supra) in that regard.
9. The aforesaid leads to the resultant conclusion that any judgment, sentence or order of the Sessions Court which exercises jurisdiction in terms of sub-section 3 of Section 22 of the NIA Act is to be treated as one made by a court competent as a Special Court until the trial gets transferred to a Special Court on and from the date of its constitution. This is inexcusable on a conjoint reading of the different sub-sections of Section 22, and in particular, sub-sections 3 and 4 thereof. Therefore, an appeal shall lie to the High Court against an order of the Court of Session which acts in lieu of a Special Court in terms of the statutory authority under Section 22 (3) of the NIA Act. Such an appeal would be available under Section 21(1) against any judgment, sentence or order, not being an interlocutory order. In so far as bail jurisdiction is concerned, an order of that Court of Session granting or refusing bail is appealable under Section 21(4) of the NIA Act notwithstanding anything contained in sub-section (3) of Section 378 of the Code of Criminal Procedure.
10. The procedural situation in the case in hand, as it now stands, is not different from the erroneous situation noted in Ashruff (supra). We approve the procedure adopted by the learned single Judge in Ashruff (supra) and follow it as a precedent. There is no dispute that in the case in hand, the allegations are as to commission of offences within the territorial jurisdiction of the Sessions Court of the Sessions division, Thalassery. The offences are alleged to have committed within that jurisdiction. Therefore, the proceedings now pending before the Chief Judicial Magistrate, Ernakulam have to be stopped and necessary orders have to be issued facilitating the Court of Session, Thalassery to deal with the matter.
Issue No.iii
11. The impugned order was passed by the jurisdictional Court of Session. We, therefore, do not find any jurisdictional infirmity in it. We have examined the case diary. It is seen that the impugned order was issued by the Court of Session when the investigation was in its very early stage. The investigation is only progressing. Some of the accused could not be arrested so far. Therefore, we find force in the argument of the learned standing counsel for the CBI that granting of bail to the appellant may affect the due course and progress of investigation. We do not find, at this stage, any ground to set aside the impugned order. The appeal is liable to be dismissed. This judgment will, however, be without prejudice to the appellant-third accused seeking bail on the basis of any change of circumstances, from the jurisdictional Court of Session or the Special Court, if any, that may be constituted by the State Government.
In the result,
a) The appeal is dismissed.
b) The Chief Judicial Magistrate, Ernakulam is directed to transmit all records in Crime No.780/2014 of Kadirur Police Station to the Sessions Court, Thalassery within one week of receipt of a copy of this order. The Sessions Judge shall, thereupon, pass orders as may be necessary and called for. The remand of the accused shall be extended by the Sessions Judge for appropriate periods until the Sessions Judge finds good reasons for release of any of the accused persons. All requests for remand extension of any of the accused persons shall hereafter be made before the Court of Session, Thalassery.
The High Court Registry shall communicate copy of this judgment to the Chief Judicial Magistrate, Ernakulam and the Court of Session, Thalassery forthwith.
Hand over to the learned counsel for the appellant and the learned standing counsel for the CBI.
Sd/-
Thottathil B.Radhakrishnan Judge Sha/ Sd/-
Babu Mathew P.Joseph Judge