IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.4107/2018 BETWEEN :
Riyaz Ahamed Sayeedi S/o Khaja Mohinuddin Sayeedi Aged about 32 years R/at Fajeela Manjil No.42/2, Shaheen Street Mughdam Colony, Bhatkala, Uttara Kannada District-581 320.
(By Sri S.Balakrishnan, Advocate) AND :
State of Karnataka by CCB Police, Bengaluru, Represented by Special Public Prosecutor High Court Building, Bengaluru-560 001.
… Petitioner … Respondent (By Sri S.J.Chouta, Addl. Advocate General) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.11/2015 (Spl.C.C.No.330/2015) of Pulakeshi Nagar Police Station, Bengaluru City, for the offences punishable under Sections 120B and 121A r/w Section 511 of IPC and Sections 4, 5 and 6 of Explosive Substances Act, Sections 13, 16, 18, 20 and 38 of the Unlawful Activities (Prevention) Act.
This Criminal Petition having been heard and reserved on 18.03.2019 coming on for pronouncement of orders this day, the Court made the following:-
O R D E R The present petition has been filed by accused No.4 under Section 439 of Cr.P.C. praying to release him on bail in Spl.CC.No.330/2015 on the file of XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA Cases) CCH.50 at Bengaluru arising out of Crime No.11/2015 of Pulakeshinagar Police Station, for the offences punishable under Sections 13, 16, 18, 20, 38 of Unlawful Activities (Prevention) Act (‘UAP Act’ for short); Sections 4, 5, 6 of Explosive Substances Act and Sections 120B, 121A, 511 of IPC.
2. I have heard Sri S.Balakrishnan, learned counsel appearing for the petitioner-accused No.4 and Sri Sandesh J.Chouta, learned Additional Advocate General for the respondent-State.
3. On 7.1.2015 on credible information, CCB police sighted two persons in City Railway Station, Bengaluru who were moving on suspicion. They followed them upto their residential place. They gained entry into their house and took custody of them and registered the case by apprehending the accused and on the basis of the voluntary statement certain explosive materials were recovered in a house at Bhatkal Town. It is further averred that accused No.4-petitioner was working in Dubai and visited India in the month of November, 2009 and at the instance of the remaining accused, he collected explosive substance and preserved the same in his aunt’s house. He was also apprehended along with other accused persons. On the basis of the said investigation, the charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner-accused No.4 that since from the inception, investigation of the case has not been conducted by the Investigating Team constituted under the National Investigating Agency Act, 2008 (‘NIA Act’ for short). As the investigation has been conducted by the CCB, the petition is maintainable under Section 439 of Cr.P.C. and the petitioner-accused No.4 can seek the bail under the said provision. He further submitted that if one goes by the scheme of the NIA Act, the most important step happens to be the one of entrustment of the investigation of the case to the National Investigating Agency under Sub-section (5) of Section 6 of the NIA Act. Once a decision is taken by the Central Government to direct the National Investigating Agency to investigate the offence, then the provisions of the NIA Act would apply. Section 11 of the NIA Act deals with the constitution of the Court. If that is taken into consideration, it is only the Court which has been created under the NIA Act by the Central Government. The Central Government has to notify the Special Court for trial of the cases under the NIA Act. Only on the basis of entrustment of the case, the Court will not become a Special Court to entertain such applications. As per Section 2(h) of the NIA Act, the special Court means a Court constituted under Sections 11 and 22 of the said Act and as per Section 11 of the NIA Act, the Central Government has to notify the Special Court for trial of scheduled offences specified in the notification and a special Judge has to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. Section 11 of NIA Act is obligatory on the part of the Central Government. But as per Section 22 of NIA Act it is only under certain circumstances enumerated under Section 22(2)(i)(ii) and (iii) of the NIA Act, the State Government may constitute a Special Court. He further submitted that as per Section 7 of the NIA Act by taking into consideration of the gravity of the offence, the Investigating Agency may request the State to associate with the investigation with previous approval of the Central Government and the case may be transferred to State Investigating Agency. The discretion has been given under the Constitution of India to the Central Government. No such special authority has been given to the State Government in this behalf. In the instant case, the case has been registered by Pulakeshinagar Police and subsequently CCB police filed the charge sheet. Neither under Section 7(a) nor Section 7(b) of NIA Act, the power has been given or the said authority has got the jurisdiction either to investigate and file the charge sheet. Even the Court which is trying the case is not a Court constituted under Section 11 or Section 22 of the NIA Act. As such it is his submission that no appeal lies to the Division Bench, but it is under Section 439 of Cr.P.C. this Court can entertain the petition and grant the bail. By referring to Section 21(4) of the NIA Act, he further submitted that an appeal shall lie to the High Court if an order is passed by the Special Court. But in the instant case, it is not a Special Court and as such the present petition is maintainable. He further submitted that since from the date of his arrest the petitioner is languishing behind the bars. Already the charge sheet has been filed. None of the witnesses have attributed any specific role or overt acts as against petitioner and no recovery has been made at the instance of the petitioner-accused No.4. The prosecution has failed to connect the petitioner with any of the banned organization, except the confession statement of the accused. He further submitted that the petitioner is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.4 on bail.
5. Per contra, learned Additional Advocate General submitted that the order impugned is passed by the Special Court constituted for trial of NIA cases and as such it will be an order passed by the Special Court and an appeal lies under Section 21 of the NIA Act. He further submitted that out of the alleged offences, some of the offences fall under the UAP Act and as such they fall in the scheduled offences to the NIA Act. Hence, he submitted that whether the investigation is done by CCB police or the team constituted under the NIA Act is not the criteria to come to the conclusion that the bail petition filed under Section 439 of Cr.P.C. is maintainable. He further submitted that when the offences are scheduled offences under the NIA Act, the said aspect has to be taken into consideration while determining the jurisdiction of the Court. He further submitted that the said issue is no longer a res integra. The Division Bench of this Court in the case of Gauhar Aziz Khomani & others Vs. State by Cubbon Park Police in Criminal Petition No.8718/2017, disposed of on 26.7.2018 has already held that an appeal lies to the Division Bench and as such the present petition is not maintainable. In view of the aforesaid proposition of law, the petition filed under Section 439 of Cr.P.C. is not maintainable and therefore he prays to dismiss the petition.
6. I have carefully and cautiously perused the grounds urged in the present petition and the order dated 26.4.2018 passed by XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA Cases) Bengaluru rejecting the bail application of the petitioner and also the decision quoted by the learned Additional Advocate General.
7. Looking to the material on record, it would indicate that the charge sheet has been filed as against the petitioner-accused No.4 in Crime No.11/2015 pertaining to the offences punishable under Sections 120B, 121A r/w. Section 511 of IPC; under Sections 4, 5, 6 of Explosive Substances Act; and Sections 13, 16, 18, 20, 38 of UAP Act. On examination of these alleged offences, some of the offences fall under the provisions of UAP Act. On perusal of the NIA Act, in the Schedule at Sl.No.2, UAP Act is also mentioned. Therefore, they are considered to be the scheduled offences to NIA Act.
8. Looking to the particulars of UAP Act, the National Integration Council appointed a Committee on National Integration and Regionalization to look into, inter alia, the aspect of putting reasonable restrictions in the interest of sovereignty and integrity of India. Pursuant to the acceptance of the recommendations of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 (‘1963 Act’ for short) was enacted to impose, bye-law, reasonable restrictions in the interest of sovereignty and integrity of India. In order to implement the provisions the 1963 Act, UAP Bill has been introduced and passed by the Parliament. Even on perusal of the statement of objects and reasons of UAP Act, it is stated that pursuant to the acceptance by the Government of an unanimous recommendation of the Committee on National Integration and regionalism appointed by the National Integration Council, 1963 Act was enacted empowering the Parliament to impose the reasonable restrictions. i.e., freedom of speech and expression;
right to assemble peaceful and without arms; right to form associations or unions, etc. 1963 Act was also intending to curtail the terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by the Left Wing Extremism, but also in the form terrorist attacks and bomb blast, etc. in various parts of the hinterland and major cities, etc. In order to prevent such activities, there was a need for setting up of an agency at the central level for investigation of the offences related to terrorism and other acts which have national ramifications.
9. It is the submission of the learned counsel for the petitioner-accused No.4 that the alleged offences fall under the provisions of UAP Act, may be the scheduled offences, but that itself is not sufficient to come to the conclusion that any order passed by the Sessions Court established under the Code of Criminal Procedure is not the Special Court constituted under Section 11 or Section 22 of the NIA Act.
10. The learned counsel for the petitioner submitted that the power of the State Government in respect of such offences is virtually subjugated as per Section 11 of the NIA Act. In other words, if an offence has taken place under the NIA Act, the power of the State to investigate and prosecute the scheduled offences ceases. In order to substantiate his arguments, he relied upon the decision in the case of Bahadur Kora Vs. The State of Bihar, in Criminal Appeal No.149/2015, disposed of on 27.3.2015.
11. I have carefully and cautiously gone through the aforesaid decision. Be that as it may, for the purpose of brevity I quote Section 10 of the NIA Act which reads as under:-
“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.”
12. A close reading of the above Section provides power to State Government to investigate and prosecute any scheduled offence or any other offences. Because of the saving clause if the investigation is done by CCB, it will not affect.
13. On close reading of the material to bring the offences committed under the provisions of UAP Act into Schedule of the NIA Act, there is specific object. By taking into account the seriousness and gravity, threat posed to the sovereignty and integrity of India the offences were brought under the Schedule. Even it is well settled principle of law that special law excludes the general law. In that light, NIA Act is a special law which will be having force. Though under Section 6(2) of the NIA Act, procedure is mentioned to entrust the investigation to the agency but as discussed above in view of Section 10 of the NIA Act, the investigation done by the State Investigating Agency will not be affected. In the light of the aforesaid discussion, the contention of the learned counsel for the petitioner is not acceptable.
14. Another contention of the learned counsel for the petitioner is that the order impugned is not by the Special Court, it is a Court as per Code of Criminal Procedure and as such no appeal lies to the Hon’ble High Court.
15. In the case on hand, perusal of the order produced by the petitioner himself, it is the order passed by the XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA Cases) at Bengaluru. therefore, this goes to show that the Court which passed the order is the Special Court under the NIA Act. Therefore, by seeing the said order itself, the contention of the learned counsel for the petitioner that the Court which passed the order is only the Sessions Court and not the Special Court established under the NIA Act, cannot be accepted. Therefore, when the bail application has been rejected by the said Court, then as per Section 21(4) of the NIA Act, an appeal lies to the Division Bench of the High Court and the petition filed under Section 439 of Cr.P.C. is not maintainable.
16. The Division Bench of this Court of which I am one of the members (Justice B.A. Patil) in the case of Gauhar Aziz Khomani & others Vs. State by Cubbon Park Police, mentioned supra has discussed in detail about all those issues and has come to the conclusion that if the offences are the scheduled offences under the NIA Act, a special procedure is to be adopted for trial of such offences and an appeal lies to the Division Bench that too when the said order is passed by the Special Court constituted to try the NIA cases under the NIA Act. The said issue is no longer res integra. Hence, I feel that the said aspect has been fully covered in the said decision. In that light also, the contentions raised by the learned counsel for the petitioner are not acceptable.
In view of the above, petition is liable to be dismissed and accordingly, the same is dismissed.
Sd/- JUDGE *ck/-