While ruling on whether a single Judge can hear a bail application in a case triable by the NIA Court in scheduled offences, the Allahabad High Court in a latest, laudable, landmark and learned judgment titled Maulana Kaleem Siddiqui vs State of UP Thru. Prin. Secy. Hone Lko. In Criminal Misc. Bail Application No. 5425 of 2022 while dismissing a bail application in a case triable by the NIA Court minced absolutely no words to hold that in view of Section 21 NIA Act an appeal shall lie to the Division Bench of the High Court and a single Judge cannot hear the same. The Court thus ruled that the bail application filed without jurisdiction before the Court is, thus, not maintainable. We thus see that the bail application has been dismissed by the Court with a liberty to file an application for appeal under Section 21 of the NIA Act before the appropriate Bench.

To start with, a single Judge Bench of the Allahabad High Court comprising of Hon’ble Justice Kishan Pahal first and foremost sets the pitch in motion by putting forth in para 1 that:
Heard Sri I.B. Singh, learned Senior Counsel assisted by Sri Ishan Baghel, learned counsel for the applicant, Sri Shiv Nath Tilhari, learned A.G.A.-I for the State and perused the material available on record.

To be sure, the Bench then states in para 2 that:
At the outset, learned A.G.A.-I for the State has raised a preliminary objection that the present bail is not maintainable as it cannot be heard before this Court as it is hit by Section 21 of The National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act). An appeal ought to have been filed on behalf of the applicant under Section 21 of the NIA Act to be heard by a division bench.

As we see, the Bench then observes in para 3 that:
Learned Senior Counsel for the applicant has pressed the bail application on the ground that trial of the case by Special Court without following Section 6 of the NIA Act is illegal. The case has not been notified to the Central Government as provided under Section 6 of the NIA Act, which is being reproduced hereinbelow :-

6. Investigation of Scheduled Offences.

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 shall forward the report to the Central 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 motu, 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 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.
8. Where the Central Government is of the opinion that a Scheduled Offence has been committed at any place outside India to which this Act extends, it may direct the Agency to register the case and take up investigation as if such offence has been committed in India.
9. For the purposes of sub-section (8), the Special Court at New Delhi shall have the jurisdiction.

Truth be told, the Bench then points out in para 4 that:
Learned Senior Counsel for the applicant has placed much reliance on the judgment of this Court dated 26.2.2019 passed in Vineet Kumar Dixit vs. State of U.P. Bail No. 8778 of 2018, wherein it has been opined after relying on the judgments of Patna High Court and Rajasthan High Court, that the cases even where scheduled offences punishable under the provisions of Schedule have been alleged, shall be tried by the courts as provided for under the Code of Criminal Procedure, 1973, and not in accordance with the special procedure provided under the Act unless (i) The investigation of such cases is entrusted by the Central Government to the N.I.A. and (ii) The N.I.A. transfers the same to the investigating agency of State Government. The special procedure under the NIA Act would attract only when the Central Government entrusted the investigation to the NIA, who in turn either entered into the investigation itself or transfers the investigation to the State Investigation Agency as prescribed in Sections 6 and 7 of the NIA Act. There is nothing on record which may suggest that in the instant case, any of the eventuality mentioned in Sections 6 and 7 of the NIA Act exists and therefore, the bail application filed by the applicants/accused persons is maintainable under Section 439 of the Cr.P.C. The objection of the learned A.G.A.-I, is therefore, without any substance and is not acceptable.

Of course, the Bench then notes in para 5 that:
Learned Senior Counsel has also placed reliance on the judgments of the Andhra Pradesh High Court in Cherukuri Kutumbayya v. The Municipal Council, Vijayawada, wherein it has been opined that :-

6. The expression save as otherwise provided in Sub-Section (2) means ‘except to the extent specific provision is made’. In other words Sub-Section (2) will come into play only in cases which are not governed by any other specific provisions of law. Therefore, it is only where there is no other special provision in respect to any other type of land this Sub-Section is attracted. Since the legislature has enacted a specific provision in regard to agricultural lands, it is reasonable to infer that that category of lands contemplated by that Sub-Section should be governed by it.

Needless to say, the Bench then mentions in para 6 that:
Per contra, learned A.G.A.-I has vehemently opposed the bail application on the ground that the applicant has not raised any objection at the trial court regarding non-compliance of Section 6, regarding the case being tried by the Special Court under the NIA Act. Had so been the case, the trial would have been proceeded before the Sessions Judge.

Simply put, the Bench then states in para 7 that:
He has further placed much reliance on Section 10 of the NIA Act, which reads as follows :-

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.

Be it noted, the Bench then specifies in para 8 that:
Learned A.G.A.-I has also placed much reliance on Section 21 of the NIA Act, which reads as under :-

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.

It is worth noting that the Bench then also elaborates in para 9 stating that, Learned A.G.A.-I has stated that as per sub-section (4) of Section 21, it is stated that notwithstanding anything contained in subsection (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court regarding bail. The same has to be heard by a division bench of the High Court. Learned A.G.A.-I has further stated that offence committed herein is also under Section 121(A) which is the scheduled offence and the said scheduled offence can be tried by a Special Court as provided under Section 10 of the NIA Act. The Schedule is being reproduced hereinunder :-

THE SCHEDULE
[See Section 2(1)(f)]

1. The Explosive Substances Act, 1908 (6 of 1908)
   1-A. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 [2016 (30 of 2016)];
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 ( 21 of 2005);
8. Offences under:
   1. Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive);
   2. Sections 370 and 370-A of Chapter XVI of the Indian Penal Code (45 of 1860);
   3. Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860)..
   4. Sub-section (1-AA) of section 25 of Chapter V of the Arms Act, 1959 (54 of 1959);
   5. Section 66-F of Chapter XI of the Information Technology Act, 2000 (21 of 2000).

It cannot be glossed over that the Bench then hastens to add in para 16 that, Learned A.G.A.-I has stated that scheduled offences, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under the NIA Act. Section 13(1) of the NIA Act, which begins in a notion reads as under :-

13. Jurisdiction of Special Courts.-(1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.

Quite remarkably, the Bench then enunciates in para 17 that:
The aforesaid Section 13(1) of the NIA Act begins with a non obstante clause, which is notwithstanding anything contained in the Code, read with Section 22(2)(ii), states that every Scheduled Offence that is investigated by the Investigation Agency of the State Government is to be tried exclusively by the Special Court within whose jurisdiction it was committed.

Quite significantly, the Bench then mandates in para 18 that:
When the cases pertaining to the scheduled offence are to be tried by a Special Court, then Section 21 of the NIA Act would categorically apply to the case and an appeal shall only lie to the said case, before a division bench of the High Court.

Most significantly, the Bench then minces just no words to hold in para 19 that, Thus, it follows from the aforesaid averments of the parties that the Special Court in the State has been established vide notification no. 1002/VI-P-9-21-31(75)/2017, and the bail application of the applicant has been rejected by the Special Court under NIA Act vide order dated 3.2.2022. No objection whatsoever, has been raised by the applicant before the designated court and the provisions of Section 21(4) are applicable to the present case. Furthermore, Section 6 of the NIA Act has been complied with. The bail application filed without jurisdiction before this Court is, thus, not maintainable.

What’s more, the Bench then directs in para 20 that:
The bail application is dismissed with a liberty to file an application for appeal under Section 21 of the NIA Act before the appropriate bench.

Finally, the Bench then concludes by holding in para 21 that:
The counsel for the applicant shall be returned the certified copies of the orders and other relevant documents, after keeping photocopies thereof, as per the Rules of the Allahabad High Court.

All told, it is now indubitably clear that the single Judge Bench of the Allahabad High Court comprising of Hon’ble Justice Krishan Pahal has fully, finally, frankly and firmly held that an appeal shall lie to the Division Bench and not a Single Bench of the High Court for bail in Scheduled Offences. We have already discussed the reasons and other aspects in considerable detail as stated herein above. It merits no reiteration that there can certainly be no quibbling over what Hon’ble Justice Krishan Pahal has so very rightly, robustly and rationally held in this leading case!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.