Sahadath Hossain v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938** **Bail Appl..No. 7948 of 2016 () -------------------------------** **CRMC 2020/2016 of D.C. & SESSIONS COURT, ERNAKULAM** **CMP 236/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KALADY CRIME NO. 1640/2016 OF KALADY POLICE STATION , ERNAKULAM -----------------------------------------** ## **PETITIONER(S)/ACCUSED:** **--------------------------------------** **SAHADATH HOSSAIN, AGED 26 YEARS, S/O INNAL SEKH, VIII, UTTAR FARIDPUR, P.O, FARIDPUR, LALANGI POLICE STATION, MURSHIDABAD DISTRICT, WEST BENGAL 642 303.** ## **BY ADV. SRI.K.SUNILKUMAR** ## **RESPONDENT(S)/COMPLAINANT:** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADV. SENIOR PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTHY** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **AD** **'CR'** ## **C.K.ABDUL REHIM & B.SUDHEENDRA KUMAR, JJ** ## **---------------------------------------** ## **B.A No. 7948 of 2016** ## **---------------------------------------Dated this the 29[th] day of November, 2016** ## **ORDER** ## C.K.Abdul Rehim,J The petitioner herein is the accused in Crime No.1640/2016 of Kalady Police Station, which was registered for offences punishable under Section 489(B) & (C ) of IPC and Section 15(1)(a)(iii a) and 16 (1)(b) of the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act for short). The petitioner is approaching this court under Section 439 Cr.P.C seeking bail in the said case. The Registry of this court had posted the above case before this Division Bench, tagged on to some other bail applications, presumably on a mistaken impression that the case is being investigated by the National Investigation Agency (NIA); and that as per the legal position settled in the decision in _**Majeed Koliyad v. National Investigation Agency, Kochi [2015**_ _**(1) KLT 311]**_ it has to be heard by a Division Bench. 2. In fact the case at hand is not one investigated by the _B.A No. 7948 of 2016_ _2_ NIA, at present. But it is being investigated by the State Police. But, incidentally there arises a question regarding maintainability of the bail application under Section 439 Cr.P.C, in view of the fact that the accusations include offences punishable under the UA(P) Act. Offences punishable under the UA(P) Act are “scheduled offences” coming within the definition contained in Section 2(1)(g) of the National Investigating Agency Act, 2008 (NIA Act, for short). Under Section 21(4) of the NIA Act, an appeal is provided to the High Court against any order of the special court either granting or refusing bail. Learned Public Prosecutor appearing on behalf of the respondent pointed out that, in view of the specific appellate remedy provided under the relevant statute, no bail application under Section 439 Cr.P.C will be maintainable before the High Court with respect to any scheduled offence coming within the purview of the NIA Act. He placed reliance on a decision of the Hon'ble Supreme Court in _**State of Andhra Pradesh and Another v. Md.Hussain @ Saleem**_ _**and Another [2014 (1) SCC 258] : [2013 KHC 4723]**_ . In the said case it was held that, when the NIA Act applies, the original _3_ _B.A No. 7948 of 2016_ application for bail shall lie only before the special court and an appeal against the orders of that court shall lie only to a Bench of two Judges of the High Court. It was held therein that, such offences are triable only by the special courts and therefore the application for bail in such matters will have to be made before the special court under the NIA Act, and shall not lie before the High Court, either under Section 439 or under Section 482 of the Code. Hence it was found that an application filed before the High Court seeking bail was not maintainable. 3. But the learned counsel for the petitioner pointed out that, the criminal case in question is not pending before the special court, but before the Sessions Court having territorial jurisdiction over the place of occurrence. Therefore it is contented that the provisions of Section 21(4) of the NIA Act will not apply in the case at hand and hence the petitioner is entitled to seek bail from this court under Section 439 of Cr.P.C. He placed reliance on a Full Bench decision of the Patna High Court in _**Bahadur Kora v. State of Bihar [2015 CRL.L.J.2134]** ._ It was held therein that, only when the offence alleged in a case _B.A No. 7948 of 2016 4_ involves any of the 'scheduled offences' under the NIA Act and only when it is investigated by the NIA, jurisdiction of other courts are excluded. Unless both the above said factors exist, the Sessions Court having territorial jurisdiction can exercise powers under the Cr.P.C, and in such case, an appeal under Section 21(4) of the NIA Act would not be maintainable. 4. Contention raised on behalf of the respondent is that, in view of the provision for appeal provided under Section 21(4) of the NIA Act, the powers under Section 439 of Cr.P.C stand excluded. In this regard, attention of this Court was invited to a decision of the Hon'ble Apex Court in _**State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others [2003 (8) SCC 50].**_ In the said decision, the Hon'ble Supreme Court, while considering the provision of appeal provided under Section 34(4) of the Prevention of Terrorism Act, 2002, which is in _pari materia_ with Section 21(4) of the NIA Act, held that, the High Court cannot exercise powers under Section 439 of Cr.P.C in granting bail to the accused in view of the specific provision of appeal provided under the said act. It was held that, the scope _B.A No. 7948 of 2016 5_ of Section 34 of the Prevention of Terrorism Act is that, an accused can obtain bail from the High Court by preferring an appeal against the order of the special court refusing bail. In view of such specific provision, it cannot be said that a person whose bail has been rejected by the special court has got two remedies and that he can avail any one of such remedies at his sweet will. The arguments advanced to the effect that he can move a bail application before the High Court under Section 439 of Cr.P.C in the original concurrent jurisdiction or that he may prefer an appeal under Section 34(4), was not accepted by the Apex Court. It was held that, to interpret a statutory provision in such a manner that a court can exercise both appellate and original jurisdiction in respect of the same matter, will lead to an incongruous situation. The Hon'ble Apex Court further held that, power under Section 482 of Cr.P.C also cannot be invoked for granting bail when there is a specific provision provided for the same purpose. Taking note of the dictum contained in the above said decision of the Hon'ble Apex Court, we have no hesitation to hold that, whenever the accused is left with a remedy to file _B.A No. 7948 of 2016_ _6_ appeal under Section 21(4) of the NIA Act, an application for regular bail under Section 439 of Cr.P.C is not maintainable before the High Court. 5. But in the case at hand there exists a slight distinction, which is contended before us that, the order rejecting the bail is not passed by any special court constituted under the NIA Act; and as such Section 21(4) would not apply. While analysing the question, a scanning of the relevant provisions of the NIA Act is essential. Section 2(1)(g) of the NIA Act defines 'Scheduled Offence', which means an offence specified in the Schedule. Offences under UA(P) Act are included in the schedule of the NIA Act. Therefore it is clear that the offences alleged under the UA(P) Act are 'scheduled offences' coming under the NIA Act. Section 22(1) of the NIA Act provides that, the State Government may constitute one or more special courts for the trial of offences under any of the enactments specified in the schedule. Section 6 of the NIA Act stipulates that, whenever an officer-in-charge of any Police Station receives information regarding commission of any of the _B.A No. 7948 of 2016_ _7_ scheduled offences, he shall forward a report to the State Government, forthwith. Sub Section (2) of Section 6 stipulates that, on receipt of such a report, the State Government shall forward the said report to the Central Government, as expeditiously as possible. Sub Section (3) therein provides that, on receipt of a report from the State Government, the Central Government shall determine as to whether the offence is a scheduled offence or not and also as to whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the agency (NIA). On being satisfied of the above said factor, the Central Government shall direct the NIA to investigate the said offence. When the Central Government takes such a decision and directs the NIA to investigate the offence, the State Government or the Police Officer concerned, who is investigating such offence, shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the agency (NIA). But Section 6(7) provides that, till the NIA takes up the investigation of the case, it shall be the duty of the officer-in-charge of the Police _B.A No. 7948 of 2016 8_ Station to continue the investigation. In the case at hand, admittedly the investigation is still being continued by the State Police agency and the Central Government has not so far taken any decision to direct the NIA to take over the investigation. 6. As already observed, Section 22(1) of the NIA Act confers power on the State Government to constitute special courts for trial of the offences under any of the enactments specified in the schedule of the NIA Act. But Sub Section (3) of Section 22 provides that, the jurisdiction conferred by virtue of the NIA Act on the special courts shall, until a special court is constituted by the State Government under Sub Section (1), be exercised by the Court of Sessions of the Division in which such offence has been committed; and it shall have all the powers of the special court and shall follow the procedure provided under the NIA Act. Further, under Sub Section (4) therein, it is clarified that, 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 provisions of the NIA Act, which would have been required to be tried before the Special Court, _B.A No. 7948 of 2016_ _9_ shall stand transferred to that court on the date on which it is constituted. The provisions contained in Section 22 of the NIA Act assume importance with respect to trial of offence under any of the enactments specified in the schedule of the NIA Act. It is left open to the State Government to constitute a special court. But Section 22(3) specifically provides that the jurisdiction conferred by the NIA Act on the special court shall, until a special court is constituted by the State Government, notwithstanding anything contained in the code, be exercised by the Court of Sessions of the Division in which such offence has been committed and it shall have all the powers and shall follow the procedure, under the chapter concerned of the NIA Act. 7. Therefore it is clear that, with respect to an offence under the UA(P) Act, which is specified in the schedule of NIA Act, the Sessions Court is only exercising the jurisdiction which is conferred on the special court and that such court is vested with all the powers conferred by the NIA Act and it is bound to follow the procedure provided under the relevant chapter of the NIA Act. Hence, even though the offence is not tried by the Special _B.A No. 7948 of 2016_ _10_ Court, the Sessions Court is exercising only the jurisdiction of the Special Court, as conferred by the NIA Act. Therefore, for all practical purposes, the Sessions Court which is trying an offence under the UA(P) Act, which is a scheduled offence, need to be deemed as a Special Court, irrespective of whether the investigation is conducted by the NIA or not. Therefore this Court is of the considered opinion that, any order passed by the Sessions Court granting or refusing bail with respect to any offence coming under the UA(P) Act, which is included in the schedule of the NIA Act, is appealable to the High Court under Section 21(4) of the NIA Act and in such cases, the application for a regular bail under Section 439 Cr.P.C is not maintainable before the High Court. 8. Based on the above said proposition, question arises as to whether the above bail application filed under Section 439 of Cr.P.C before this court is maintainable or not. Evidently, the petitioner had approached the Sessions Court, Ernakulam seeking bail in the case, in Crl.M.C No.2020/2016. It was an application for regular bail filed under Section 439 of Cr.P.C. The said bail _B.A No. 7948 of 2016_ _11_ application was rejected by the Sessions Court on observing that, the definite case of the prosecution was that the accused had committed the offence with an intent to threaten the financial security of India and that the investigation was in progress. It was observed that, if the petitioner is enlarged on bail, there is every likelihood of destroying the evidence and influencing the witnesses. We take note of the fact that the Sessions Court has not considered the restrainment imposed under Section 43D (5) of the UA(P) Act. Since we have already found that the remedy available to the petitioner is to file an appeal under Section 21(4) of the NIA Act, it is only just and proper to permit the petitioner either to approach the Sessions Court afresh under Section 439 Cr.P.C, or to file an appeal against the order of the Sessions Court under Section 21(4) of the NIA Act. Therefore, the above Bail Application is hereby dismissed as not maintainable. The petitioner will be at liberty to approach the Sessions Court afresh seeking for bail or to seek his right of appeal under Section 21(4) of the NIA Act, if so _B.A No. 7948 of 2016_ _12_ advised, against the order of the Sessions Court. It is made clear that the petitioner can seek exemption under the provisions of Section 470(1) of Cr.P.C in the matter of computation of the period of limitation, in case of filing any such appeal. It is also clarified that the petitioner will be also at liberty to seek for default bail, in case the final report is not submitted within the time stipulated under the statute. Sd/- ## **C.K.ABDUL REHIM, JUDGE** Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** //TRUE COPY// P.A. TO JUDGE AD