KHOIROM IN THE HIGH COURT OF MANIPUR
Digitally signed by
KHOIROM
BIPINCHAN
BIPINCHANDRA SINGH AT IMPHAL
Date: 2024.06.28
DRA SINGH
15:13:27 +05'30'
CRIL. PETN. No. 35 of 2024
State of Manipur represented by the Joint Secretary
(Home), Government of Manipur, P.O. & P.S. Imphal,
Imphal West District, Manipur 795001.
–
Petitioner
….
- Versus
–
Mark Thangmang Haokip, (39) years, S/o Limkhosel
Haokip of Molnom Village, P.O. & P.S. Churachandpur,
Churachandpur District, Manipur 795128.
–
…. Respondent
B E F O R E
BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
HON’
For the petitioner : Mr. Lenin Hijam, Advocate General
Assisted by Mr. Dimal Kumar, Advocate
For the respondent : Mr. Colin Gonsalves, Senior Advocate
Assisted by Osbert Khaling, Advocate
Date of hearing : 23.05.2024
Date of delivery : 27.06.2024
P a g e 1 | 20
JUDGMENT & ORDER
[1] Heard Mr. Lenin Hijam, learned Advocate General
appearing through VC assisted by Mr. Dimal Kumar, learned counsel for
the petitioner and Mr. Colin Gonsalves, learned senior counsel appearing
through VC assisted by Osbert Khaling, learned counsel for the
respondent.
[2] The present Petition has been filed under Section 482 of
the Criminal Procedure Code with the following prayer:
(i) To call for records of Spl. T. No. 10 of 2022 (Ref. : FIR
No. 129 (05) 2022 IPS U/S 120-B, 121, 121-A, 123,
400 IPC S. 17, 18 UA(P) Act;
(ii) To quash and set aside the other order dated
21.05.2024 passed by the Ld. Special Judge (NIA),
Imphal West, Manipur in Spl. T. No. 10 of 2022 (Ref. :
FIR No. 129 (05) 2022 IPS U/S 120-B, 121, 121-A,
123, 400 IPC S. 17, 18 UA(P) Act;
(iii) To pass any appropriate order or orders or directions
which the Hon’ble Court may deem fit and proper and
just in the present nature of the case.
[3] The instant petition has been instituted on behalf of the
State of Manipur against the order dated 21.05.2024 passed in Spl. T.
No. 10 of 2022 of the Ld. Special Judge (NIA), Imphal West on the
ground that the said order has been passed without giving opportunity of
P a g e 2 | 20
being heard the public prosecutor thereby violating the principle of
natural justice in the name of exercising discretionary power of the
Court. The order has been passed in violation of Section 362 of Cr.P.C.
[4] By the said order dated 21.05.2024 impugned herein, the
Ld. Special Judge (NIA), Imphal West has substantially modified the
order dated 28.03.2023 to the extent that the two sureties may be non-
Gazetted Government employees. The relevant portions of the order
dated 21.05.2024 read as follows:
hat the accused has been
“Perusal of the record shows t
in judicial custody for more than 1 year after he was granted
bail, though it is also a fact that this Court had kept in abeyance
of the operation of bail order until 20-05-2024.
Under the circumstances, the condition of the bail order
dated 28-03-2023 is modified to the extent that the two sureties
may be non-Gazetted government employees.
The sureties are appearing through V.C. from the Office
of District & Sessions Judge, Senapati as requested by Ld.
Counsel of the accused. On Instruction of this Court, Shri
Shivakumar, LDA has examined the original copies of surety
bonds. The original copies of the surety bonds and other
relevant documents shall be forwarded to this Court within a
reasonable time from the date of receipt of the same.
Interacted with the sureties, satisfied about the
genuineness. Bonds are accepted.
Issue release order accordingly.”
[5] Vide order dated 20.05.2024 passed in Cril. Misc. Case No.
61 of 2023 by the Ld. Special Judge (NIA), Imphal West, the impugned
order dated 21.05.2024 is very much contradictory to its own order
dated 20.05.2024 wherein, it has been decided that the same Court is
P a g e 3 | 20
not competent to alter or modified the judgment of the same Court
except to correct a clerical or arithmetical error.
[6] Further, it has been mentioned that the Ld. Special Judge
(NIA), Imphal West held that the Misc. Case No. 42 and 43 of the 2023
filed by the State have not been maintainable in Cril. Misc. Case No. 61
of 2023 by virtue of Section 362 of Cr.P.C. The same Ld. Special Judge
could not modify or alter its common order dated 28.03.2024 without
any application for modification of the said order and without giving any
notice to the State.
[7] The learned senior counsel appearing for the respondent
Mr. Colin Gonsalves requested this Court to take up the maintainability
issue first before dealing with the merit of the case thereby raising the
maintainability issue stating that the present application ought to have
filed under an appeal but not under present proviso i.e. 439(2) of the
Cr.P.C r/w 482 of the same Code. The learned sr. counsel draws the
attention of the court to section 21 of the NIA Act and submits that
under section 21(4) of the Act provides provision that an appeal shall lie
to the High Court against an order of the Special Court granting or
refusing the bail.
The learned Advocate General submits that the present
application being preferred against bail order, the bail order is admittedly
an interlocutory order, the appeal does not lie in the present case. The
learned Advocate General draws this Court’s attention to Section 21(1).
P a g e 4 | 20
[8] Further, the learned Advocate General submits that Section
21 of the NIA Act will apply only to the Central Agency constituted by the
Central Government, but the present case is investigated by the State
Agency as such, the present case is maintainable. Further, the learned
Advocate General draws this Court’s attention to Sections 6 and 10 of the
NIA Act, for clarity and for reference Sections 6, 10 and 21 of the NIA
Act are reproduced herein below:-
Investigation of Scheduled Offences -
“6.
(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 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 moto, 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
P a g e 5 | 20
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.”
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.
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.”
P a g e 6 | 20
[9] After hearing the rival contentions of the learned counsels
for the parties, I am of the opinion that there are 3 (three) issues raised:
(i) Whether the present petitioner should file the present
petition on appeal or under the present Sections which
the present petitioner filed.
(ii) If at all appeal is to be filed other than the present
Sections under which the petitioner filed, whether which
one of Section 21(1) or Section 21(4) of the NIA Act.
(iii)The present Section 21(1) or 21(4) of the NIA Act will
apply only to the investigation conducted by the agency
constituted by Central Government or can also be
applied to the investigation conducted by the State
agency under the Scheduled Act.
[10] Section 6 relates to the investigating agency constituted by
the Central Government, Section 10 relates to power of the State
Government to investigate the Scheduled Offences and Section 21
relates to appeals challenging the orders passed by the Special Courts
(NIA).
[11] It is admitted fact that allowing and rejecting the bail
application is an interlocutory order, but a perusal of Section 21(1) of the
NIA Act says that an appeal shall lie from any judgment, sentence or
order not being an interlocutory order of Special Court to the High Court
on facts and law. However, Section 21(4) specifically mentioned that an
P a g e 7 | 20
appeal shall lie to the High Court against an order of the Special Court
granting or refusing bail. Hence, it is clear that in spite of being an
interlocutory order, the order of the Special Court granting or refusing
bail shall be filed on an appeal.
[12] On careful perusal of the section 21 NIA Act, it is evident
that the Act does not specify as to whether this section will apply only to
investigation made by the agency constituted by the Central Government
and not to agency constituted by the State Government. But, on
combined reading of Sections 6, 10 and 21 of the NIA Act, the Act does
not specifically mention about the applicability of Section 21 to Central
Government constituted agency but kept silent as to whether Section 21
shall apply to State Government constituted agency or not. If the Section
21 is to be applied only to the Central Government constituted agency,
then the legislatures must put a provision separately for State constituted
agency. Hence, the Section 21 is silent about the applicability of the
agencies. It is presumed that both Sections 21(1) and 21(4) are
applicable to the investigation conducted by the Central Government as
well as the agency constituted by the State Government (State Agency).
[13] The learned counsel for the respondent further submits
that the present application filed under Section 439(2) of Cr.P.C. r/w
Section 482 of the Cr.P.C. is not maintainable and liable to be dismissed.
The Hon’ble Supreme Court in (2014) 1 SCC 258 [“State of Andhra
Pradesh through Inspector General, National Investigation
P a g e 8 | 20
Agency V. Mohd. Hussain @ Saleem” and in the matter of
The
“Pragya Singh Thakur V. National Investigation Agency”].
relevant portions of the judgment are extracted hereunder:
The abovereferred Section 21(4) of the NIA Act provides
“16.
that an appeal lies to the High Court against an order of the
Special Court granting or refusing bail. However, sub-section (3)
which is a prior sub-
section, specifically states that “except as
revision shall lie to any court from any
aforesaid”, no appeal or
judgment, sentence or order including an interlocutory order of a
Special Court, no such appeal or revision shall lie to any court
except as provided under sub-sections (1) and (2), meaning
thereby only to the High Court. This is the mandate of Section
21(3) of the NIA Act.
17. There is no difficulty in accepting the submission on
behalf of the appellant that an order granting or refusing bail is
an interlocutory order. The point however to be noted is that as
provided under Section 21(4) of the NIA Act, the appeal against
such an order lies to the High Court only, and to no other court
as laid down in Section 21(3). Thus it is only the interlocutory
orders granting or refusing bail which are made appealable and
no other interlocutory orders, which is made clear in Section
21(1), which lays down that an appeal shall lie to the High Court
from any judgment, sentence or order, not being an interlocutory
order of a Special Court. Thus other interlocutory orders are not
appealable at all. This is because as provided under Section 19 of
the Act, the trial is to proceed on day-to-day basis. It is to be
conducted expeditiously. Therefore, no appeal is provided
against any of the interlocutory orders passed by the Special
Court. The only exception to this provision is that orders either
granting or refusing bail are made appealable under Section
21(4). This is because those orders are concerning the liberty of
the accused, and therefore although other interlocutory orders
are not appealable, an appeal is provided against the order
granting or refusing the bail. Section 21(4), thus carves out an
exception to the exclusion of interlocutory orders, which are not
therefore very much an order against which an appeal is
permitted under Section 21(1) of the Act.
18. Section 21(2) of the NIA Act provides that every such
appeal under sub-section (1) shall be heard by a Bench of two
Judges of the High Court. This is because of the importance that
is given by Parliament to the prosecution concerning the
Scheduled Offences. They are serious offences affecting the
sovereignty and security of the State amongst other offences, for
P a g e 9 | 20
the investigation of which this Special Act has been passed. If
Parliament in its wisdom has desired that such appeal shall be
heard only by a Bench of two Judges of the High Court, this
Court cannot detract from the intention of Parliament. Therefore,
the interpretation placed by Mr. Ram Jethmalani on Section 21(1)
that all interlocutory orders are excluded from Section 21(1)
cannot be accepted. If such an interpretation is accepted it will
mean that there will be not appeal against an order granting or
refusing bail. On the other hand, sub-section (4) of Section 21
has made that specific provision, though sub-section (1)
otherwise excludes appeals from interlocutory orders. These
appeals under sub-section (1) are to be heard by a Bench of two
Judges as provided under sub-section (2). This being the
position, there is no merit in the submission canvassed on behalf
of the applicant that appeals against the orders granting or
refusing bail need not be heard by a Bench of two Judges.
20. As noted earlier, the submission of the applicant is
twofold:
(i) Firstly, as stated above the appeal against an
order granting or refusing bail under Section 21(4) of the
Act need not be before a Bench of two Judges, which is
untenable as noted above.
(ii) The other submission is that the application for
bail which is made by the applicant before the High Court
is an original application under Section 21(4) of the MCOC
Act read with Section 439 of the Code, and is therefore,
maintainable before a Single Judge of the High Court. As
far as this submission is concerned, it has been repelled
in Usmanbhai relied upon by the counsel for the
applicant himself.
21. Usmanbhai was a matter under the Terror5st and
Disruptive Activities (Prevention) Act (28 of 1987), shortly known
as ”TADA” . This Act also had a similar provision in Section 19(1)
thereof which reads as follows:
Appeal.
“19. –
(1) Notwithstanding anything contained in the
Code, an appeal shall lie as a matter of right from
any judgment, sentence or order, not being an
interlocutory order, of a Designated Court to the
Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision
shall lie to any court from any judgment, sentence
or order including an interlocutory order of a
Designated Court.
P a g e 10 | 20
It is also material to note that Section 20(8) of
TADA had provisions identical to Section 21(40 of MCOC
Act. The Gujarat High Court while interpreting the
provisions of TADA had held that it did not have the
jurisdiction to entertain the application for bail either
under Section 439 or under Section 482 of the Code.
That view was confirmed by this Court by specifically
stating at the end of para 22 of its judgment in
Usmanbhai case in following words : (SCC pp. 289
–
90).
................ We must accordingly uphold the view
“22.
expressed by the High Court that it had no jurisdiction to
entertain an application for bail under Section 439 or
under Section 482 of the Code.”
24. In Para No. 13 of the judgment this Court confirmed the
view taken in Usmanbhai in the following words: (Salimbhai
Abdulgaffar Shaikh case, SCC p. 58).
Section 20 of the TADA contained an identical
“13.
provision which expressly excluded the applicability of
Section 438 of the Code but said nothing about Section
439 and a similar argument that the power of the High
Court to grant bail under the aforesaid provision
consequently remained intact was repelled in
Usmanbhai Dawoodbhai Menon V. State of Gujarat
. Having regard to the scheme of TADA, it was held that
there was complete exclusion of the jurisdiction of the
High Court to entertain a bail application under Section
439 of the Code. This view was reiterated in State of
Punjab V. Kewal Singh.
27.2. And, secondly as far as Prayer 9b) of the petition for
clarification is concerned, it is made clear that inasmuch as the
applicant is being prosecuted for theoffences under the MCOC
Act, 1999, as well as theUnlawful Activities (Prevention) Act,
1967, such offences are triable only by the Special Court, and
therefore application for bail in such matters will have to be
made before the Special Court either under Section 439 or under
Section 482 of the Code. The application for bail filed by the
applicant in the present case is not maintainable before the High
Court.
27.3. Thus, where the NIA Act applies, the original application
for bail shall lie only before the Special Court, and appeal against
the orders therein shall lie to a Bench of two Judges of the High
Court.
P a g e 11 | 20
In (2020) 10 SCC 616 [Bikramjit Singh V. State of
Punjab], the relevant portions of the judgment are extracted below:
When these provisions are read along with Section
“25.
2(1)(d) and the provisos in Section 43-D(2) of the UAPA, the
scheme of the two Acts, which are to be read together, becomes
crystal clear. Under the first proviso to Section 167(2) of the
Code can be extended up to a maximum period of 180 days if
“the Court” is satisfied with the report of the Public Prosecutor
indicating progress of investigation and specific reasons for
detention of the accused beyond the period of 90 days. “The
ned in
Court”, when read with the extended definition contai
Section 2(1)(d) of the UAPA, now speaks of the Special Court
constituted under Section 22 of the NIA Act. What becomes
clear, therefore, from a reading of these provisions is that 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. What is
equally clear from a reading of Section 16(2) of the NIA Act is
that even though offences may be punishable with imprisonment
for a term not exceeding 3 years, the Special Court alone is to try
such offence albeit in a summary way if it thinks it fit to do so.
–
On a conspectus of the abovementioned provisions, Section 13
read with Section 22(2)(ii) of the NIA Act, in particular, the
argument of the learned counsel appearingon behalf of the State
of Punjab based on Section 10 of the said Act has no legs to
stand on since the Special Court has exclusive jurisdiction over
every Scheduled Offence investigated by the investigating
agency of the State.
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
P a g e 12 | 20
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 fallback is upon the Court of Session alone.
Thus, under the aforesaid scheme what becomes clear is that so
far as all offences under the UAPA are concerned, the
time under the first proviso in
Magistrate’s jurisdiction to extend
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 judgment 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.”
[14] The learned Advocate General on the other hand fervently
submitted that the maintainability issue does not arise at all as the
present case is investigated by the State investigating authority not by
the agency constituted by the Central Government under Section 6 of
NIA Act. But, the present case is purely a State case constituted under
Section 10 of the NIA Act. Section 21 of NIA Act applies only for the
cases investigated dealt with by the Central Agency
empowered/constituted by the Central Government.
[15] The Law & Legislative Affairs Department, Government of
Manipur issued a notification dated 10.06.2022 wherein under Section 22
or after consultation with
(1) of the NIA Act, 2008, the Hon’ble Govern
Hon’ble The Chief Justice of the High Court of Manipur, Special Courts
are constituted for trial of offences under any or all the enactments
specified in the Schedule of the said Act and the same is reproduced
herein below:
P a g e 13 | 20
RNMENT OF MANIPUR
“GOVE
SECRETARIAT : LAW & LEGISLATIVE AFAIRS DEPARTMENT
---
N O T I F I C A T I O N
Imphal the 10th June, 2022
No. 3/9/72-Act/L(Pt) In exercise of the powers conferred
by sub-section (1) of Section 22 of the National Investigation
Agency, Act, 2008 (34 of 2008) and after consultation with the
Chief Justice of the High Court of Manipur, the Governor of
Manipur is pleased to specify the following Sessions Courts at
column (II) as Special Courts at column (III) for the trial of
offences under any or all the enactments specified in the
Schedule of the said Act, within the local limits of their territorial
jurisdiction at column (IV) below:
Sl. Name of Name of Special Territorial Ordinary place
No Sessions Court Court jurisdiction of sitting
.
(I) (II) (III) (IV) (V)
1. Sessions Court, Special Court (NIA), Imphal East & Imphal
Imphal East Imphal East Jiribam Districts
2. Sessions Court, Special Court (NIA), Imphal West, Imphal
Imphal West Imphal West Tengnoupal,
Chandel, Noney &
Tamenglong
Districts
3. Sessions Court, Special Court (NIA), Thoubal & Thoubal
Thoubal Thoubal Kakching Districts
4. Sessions Court, Special Court (NIA), Bishnupur District Bishnupur
Bishnupur Bishnupur
5. Sessions Court, Special Court (NIA), Senapati & Senapati
Senapati Senapati Kangpokpi
Districts
6. Sessions Court, Special Court (NIA), Churachandpur & Churachandpur
Churachandpur Churachandpur Pherzawl Districts
7. Sessions Court, Special Court (NIA), Ukhrul & Kamjong Ukhrul
Ukhrul Ukhrul Districts
2. The specifying of the above Sessions Courts as Special
Courts (NIA) is with immediate effect.
Sd/-
(Nungshitombi Athokpam)
Commissioner (Law)
Government of Manipur”
P a g e 14 | 20
[16] The above mentioned notification was made under Section
22 sub-section (1) of National Investigation Agency Act, 2008. For better
appreciation of the above notification, Section 22 of the NIA Act is
reproduced herein below:
o constitute Special Courts
“22. Power of State Government t —
(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) -section (1) of section
reference to “Agency” in sub
13 shall be construed as a reference to the
“investigation agency of the State Government”;
(iii) - -
reference to “AttorneyGeneral for India” in sub
section (3) of section 13 shall be construed as
-
reference to “AdvocateGeneral of the State”.
(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.
P a g e 15 | 20
[17] On combined reading of both the above notification
with Section 22, it is clear that the said notification for constitution of
Special Courts was made under NIA Act. On further perusal of the
(2020) 10 SCC 616 [Bikramjit
Hon’ble Supreme Court’s judgment
Singh V. State of Punjab] and
(2014) 1 SCC 258 [“State of
Andhra Pradesh through Inspector General, National
Investigation Agency V. Mohd. Hussain @ Saleem” and in the
matter of “Pragya Singh Thakur V. National Investigation
it is evident and clear that the judgment, sentence and order
Agency”],
passed by the Special Court constituted under the Act and investigated
by the Central Agency as well as the State Agency under the scheduled
offences will come under Section 21 of the Act.
[18] The learned Advocate General made reference to series of
Hon’ble Supreme Court’s judgments, but these judgments and orders are
all for consideration of the case on merit of the subject case. But, right
now, the issue of maintainability as to whether the present application
filed under Section 439 (2) of the Criminal Procedure Code read with
Section 482 of Cr.P.C. is maintainable or not or is liable to be filed under
Section 21 of NIA Act. This judgment and order of the Hon’ble Supreme
Court will be considered when the matter is heard on merit.
[19] The learned Advocate General submitted that the present
application with the reliefs sought for come under Section 21(1) of the
NIA Act as such, as the dismissal and allowing the bail application comes
P a g e 16 | 20
under interlocutory order as such not appealable on the other hand, the
learned counsel for the respondent Mr. Gonsalves submitted that the
present application comes under section 21(4) of the NIA Act.
Situated thus, it is clear and evident that the present
application is covered by Section 21 of NIA Act.
[20] On combined reading of the Section 21(1) and Section
21(4) of the Act, it is evident that the present application filed by the
State comes/falls
under section 21(4). The Hon’ble Supreme Court in
(2014) 1 Supreme Court Cases 258 State of Andra Pradesh
–
through Inspector General, National Investigation Agency vs
Mohd. Hussain Alias Saleem and in the matter of Pragya Singh
Thakur vs National Investigation Agency (Supra) rejected the plea
of the applicant that the application for bail filed by the applicant is not
maintainable before the High Court, an appeal against any order passed
by Special Court shall lie only to the division bench of two judges of High
Court. Further, the Hon’ble Supreme Court at para no. 17, 18, 27.2 &
27.3 observed that:-
There is no difficulty in accepting the submission on
“17.
behalf of the appellant that an order granting or refusing bail is
an interlocutory order. The point however to be noted is that as
provided under Section 21(4) of the NIA Act, the appeal against
such an order lies to the High Court only, and to no other court
as laid down in Section 21(3). Thus it is only the interlocutory
orders granting or refusing bail which are made appealable and
no other interlocutory orders, which is made clear in Section
21(1), which lays down that an appeal shall lie to the High Court
from any judgment, sentence or order, not being an interlocutory
order of a Special Court. Thus other interlocutory orders are not
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appealable at all. This is because as provided under Section 19 of
the Act, the trial is to proceed on day-to-day basis. It is to be
conducted expeditiously. Therefore, no appeal is provided
against any of the interlocutory orders passed by the Special
Court. The only exception to this provision is that orders either
granting or refusing bail are made appealable under Section
21(4). This is because those orders are concerning the liberty of
the accused, and therefore although other interlocutory orders
are not appealable, an appeal is provided against the order
granting or refusing the bail. Section 21(4), thus carves out an
exception to the exclusion of interlocutory orders, which are not
therefore very much an order against which an appeal is
permitted under Section 21(1) of the Act.
18. Section 21(2) of the NIA Act provides that every such
appeal under sub-section (1) shall be heard by a Bench of two
Judges of the High Court. This is because of the importance that
is given by Parliament to the prosecution concerning the
Scheduled Offences. They are serious offences affecting the
sovereignty and security of the State amongst other offences, for
the investigation of which this Special Act has been passed. If
Parliament in its wisdom has desired that such appeal shall be
heard only by a Bench of two Judges of the High Court, this
Court cannot detract from the intention of Parliament. Therefore,
the interpretation placed by Mr. Ram Jethmalani on Section 21(1)
that all interlocutory orders are excluded from Section 21(1)
cannot be accepted. If such an interpretation is accepted it will
mean that there will be not appeal against an order granting or
refusing bail. On the other hand, sub-section (4) of Section 21
has made that specific provision, though sub-section (1)
otherwise excludes appeals from interlocutory orders. These
appeals under sub-section (1) are to be heard by a Bench of two
Judges as provided under sub-section (2). This being the
position, there is no merit in the submission canvassed on behalf
of the applicant that appeals against the orders granting or
refusing bail need not be heard by a Bench of two Judges.
27.2. And, secondly as far as Prayer (b) of the petition for
clarification is concerned, it is made clear that inasmuch as the
applicant is being prosecuted for the offences under the MCOC
Act, 1999, as well as the Unlawful Activities (Prevention) Act,
1967, such offences are triable only by the Special Court, and
therefore application for bail in such matters will have to be
made before the Special Court either under Section 439 or under
Section 482 of the Code. The application for bail filed by the
applicant in the present case is not maintainable before the High
Court.
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27.3. Thus, where the NIA Act applies, the original application
for bail shall lie only before the Special Court, and appeal against
the orders therein shall lie to a Bench of two Judges of the High
Court.
[21] From the analysis and deliberation made in the preceding
paras, 2 (two) facts have emerged:
It does not say that Section 21 of the NIA Act shall
exclusively apply to the matter dealt with by the Central agency nor does
it imply non-applicability of the said Section to the ones handled by the
State agencies. Another fact is that the Constitution of NIA Courts by the
State Government and investigation of the case(s) by the State agencies
are done under the NIA Act as mentioned above. In the event of the NIA
Act not having expressed provisions on the certain issue in this matter,
the relevant provision provided therein under the Act shall be applicable
to the issue in question.
[22] In view of the discussion and observations made above
and on combined reading of the aforesaid Sections 21(1), (2), (3) and
(4) of NIA Act with the above observations
made by the Hon’ble
Supreme Court, it is crystal clear that the present applications filed under
Section 439(2) of the Criminal Procedure r/w 482 of the same Court are
not maintainable but the present applications ought to have filed under
section 21(1) of NIA Act. As such, the petitioner ought to have filed an
appeal against the impugned order.
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[23] For the aforementioned reasons, the present application
made by the State petitioner is dismissed as not maintainable. No order
as to costs.
JUDGE
Bipin
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