It merits singular attention by one and all that none other than the Jammu and Kashmir and Ladakh High Court has in a recent, refreshing, robust, remarkable and rational judgment titled State of J&K through P/S Hajin Bandipora V/s Hilal Ahmad Parray in CRMC No. 474/2018 and cited in 2022 LiveLaw (JKL) 77 that was reserved on July 5, 2022 and then finally pronounced as recently as on July 15, 2022 held in no uncertain terms that only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, can entertain and grant/refuse bail to a person accused of an offence under the provisions of Unlawful Activities Prevention Act (UAPA).

It also very forthrightly held that a Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested with jurisdiction to try such offences or grant/refuse bail. We thus see that the High Court sets aside the impugned order of the Chief Judicial Magistrate, Bandipora and directed to surrender before Special Court and apply for fresh bail.

At the outset, this learned, laudable, landmark and latest judgment authored by a Single Judge Bench of the Jammu and Kashmir and Ladakh High Court comprising of Hon’ble Mr Justice Sanjay Dhar sets the pitch in motion by first and foremost putting forth in para 1 that:
The petitioner-State has challenged order dated 08.08.2018 passed by Chief Judicial Magistrate, Bandipora, whereby the learned Magistrate has admitted the respondent to bail in FIR No.59/2017 for offences under Section 13, 18 and 19 of ULA(P) Act registered with Police Station, Hajin.

On the one hand, it is pointed out by the Bench in para 1 that:
The only ground that has been urged by the petitioner while impugning the order of grant of bail to the respondent is that the learned Chief Judicial Magistrate did not have jurisdiction to pass the impugned order because, according to the petitioner, it is only a Special Court designated under National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act), which has jurisdiction to grant or refuse bail in a Scheduled offence.

On the other hand, the Bench then also points out in para 2 that:
The petition has been resisted by the respondent/accused. It has been contended by the respondent/accused that at the relevant time no Special Courts were designated in terms of the provisions of NIA Act and that offences under ULA(P) Act were triable by ordinary Sessions Courts and, as such, the Chief Judicial Magistrate was having jurisdiction to entertain and decide the bail application even in cases relating to offences under ULA(P) Act.

On a thought provoking note, the Bench then observes in para 4 that:
The question of law that has fallen for consideration in this case is whether a Judicial Magistrate has jurisdiction to entertain and decide a bail application in respect of offences under the provisions of ULA(P) Act when no Special Courts have been designated in terms of Section 22 of the NIA Act. In order to find an answer to this question, we need to take notice of certain provisions contained in the NIA Act.

Be it noted, the Bench then mentions in para 5 that:
Section 22 of the NIA Act, which vests power with State Government to designate Courts of Session as Special Courts, reads as under:

22. Power of State Government to designate Court of Session as Special Courts:

1. The State Government may designate one or more Courts of Session as 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 designated by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely:
   1. references to Central Government in sections 11 and 15 shall be construed as references to State Government;
   2. reference to Agency in sub-section (1) of section 13 shall be construed as a reference to the investigation agency of the State Government;
   3. reference to Attorney-General for India in sub-section (3) of section 13 shall be construed as reference to Advocate General of the State.
       
3. The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is 3 [designated] 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 3 [designated] 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 designated.

To put things in perspective, the Bench then envisages in para 6 that:
From a perusal of the aforesaid provision, it is clear that the State Government has power to designate one or more Courts of Session as Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act. Admittedly, as on date of passing of the impugned order, the Government of Jammu and Kashmir had not designated any Special Court in the erstwhile State of Jammu and Kashmir. However, sub-section (3) of Section 22, as quoted above, takes care of a situation where Special Court has not been designated by the State Government.

It provides that jurisdiction conferred by NIA Act shall, until a Special Court is constituted by the State Government, be exercised by the Court of Session of the division in which such offence has been committed. It also provides that such a Court shall have all the powers and follow the procedure provided under Chapter IV of the NIA Act. Thus, for all practical purposes, in the absence of a designated Special Court, the Sessions Court of the area where the offence is committed acquires the status of a Special Court as defined in Section 2(h) of the NIA Act.

To be sure, the Bench then states in para 8 that:
From a perusal of the Section 13, quoted above, it becomes clear that a Scheduled offence investigated by National Investigation Agency is to be tried only by a Special Court within whose local jurisdiction it was committed and Section 16 provides that a Special Court is empowered to take cognizance of an offence without the accused being committed to it for trial.

As we see, the Bench then specifies in para 9 that:
Clause (ii) of sub-section (2) of Section 22 of the NIA Act, as quoted hereinbefore, clearly provides that reference to Agency in sub-section (1) of Section 13 shall be construed as a reference to the Investigating Agency of the State Government, which means that every Scheduled offence investigated even by investigating agency of the State Government is to be tried only by a Special Court within whose jurisdiction it was committed. As already stated, in the absence of designation of a Special Court, the powers of a Special Court are to be exercised by the Sessions Court having jurisdiction. Thus, a Sessions Court exercising powers of a Special Court is vested with the jurisdiction and has to follow the procedure as provided under Chapter IV of the NIA Act.

As it turned out, the Bench then notes in para 10 that:
We also need to take note of the relevant provisions of the ULA(P) Act so as to understand the scheme of the two legislations i.e. NIA Act and ULA(P) Act. Section 2(1)(d) of the ULA(P) Act defines the Court to mean a criminal court having jurisdiction, under the Code, to try offences under the said Act and includes a Special Court constituted under Section 11 or under Section 21 of the NIA Act. So, the expression Court appearing in any provision of the ULA(P) Act, after the coming into force of NIA Act, means the Special Court constituted under the NIA Act.

While referring to Section 43-D of the UAPA, the Bench then discloses in para 12 that:
The aforesaid provision provides for modified application of certain provisions of the Code of Criminal Procedure and it makes clear that extension in period of completion of investigation can be granted only by a Special Court. It also provides that in cases where a person is accused of offence punishable under Chapters IV and VI of ULA(P) Act, he shall not be released on bail if the Court, on perusal of the Case Diary or the report made under Section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Most significantly, the Bench then sought to make it absolutely clear in para 13 stating that:
The expression Court used in Section 43-D of ULA(P) Act at various places, when read with the definition of Court as contained in Section 2(1)(d) of the said Act, means only a Special Court constituted under the NIA Act. Thus, it is only the Special Court which, in terms of the scheme of the provisions of the ULA(P) Act and the NIA Act, is empowered to entertain and consider the bail application relating to Scheduled offences. The fact that a Special Court has not only jurisdiction to try the scheduled offences but it has also jurisdiction to take cognizance of the offences, shows that the intention of the legislature was to confer powers of grant/refusal of extension of remand and grant/refusal of bail upon Special Court only and not upon Courts of ordinary of Magistrates.

Briefly stated, the Bench then clearly states in para 14 that:
The Supreme Court in the case of Bikramjit Singh vs. State of Punjab, (2020) 10 SCC 616, has, while noticing various provisions contained in NIA Act and ULA(P) Act, observed that the scheme of the NIA Act is that offences under the enactments contained in the Schedule to the Act are to be tried exclusively by Special Courts set up under that said Act.

Most forthrightly, the Bench then in this context points out specifically in para 15 that:
From the foregoing analysis of the law on the subject, it is clear that it is only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, which can entertain and grant/refuse bail to a person accused of an offence under the provisions of ULA(P) Act, which finds mention in the Schedule to NIA Act. Bail in a particular offence can be granted/refused only by a court which has jurisdiction to take cognizance or try such offence. A Judicial Magistrate has neither the jurisdiction to take cognizance of offences under ULA(P) Act nor he is vested with jurisdiction to try such offences. It is only a Special Court or in its absence a Sessions Court exercising powers of Special Court which is vested with such power. Thus, a Judicial Magistrate cannot grant or refuse bail in an offence under ULA(P) Act.

Most damningly, the Bench while taking potshots at the decision of the CJM then sought to state upfront in para 16 that:
In the instant case, the learned Chief Judicial Magistrate has, without noticing the aforesaid provisions of the two legislations, relied upon the provisions contained in sections 6 and 7 of the NIA Act and observed that because National Investigation Agency has not taken up the investigation of the case and the same has been conducted by the State Police, as such, he has jurisdiction to entertain the bail application. The approach adopted by the learned Magistrate is palpably wrong and contrary to law, inasmuch as he has ignored the provisions contained in Section 22(2)(ii) of the NIA Act, which clearly provides that reference to Agency in sub-section (1) of Section 13 shall be construed as a reference to the investigation agency of the State Government.

Most sagaciously, it cannot be just glossed over that the Bench then hastened to add in para 17 that:
There is yet another aspect of the matter which has been totally ignored by the learned Magistrate while granting bail to the respondent. Admittedly, the respondent has been booked not only for offences under Section 13 of the ULA(P) Act but he has also been booked for offences under Section 18 and 19, which fall under Chapter IV of the said Act. As already noted, if the Court finds that there are reasonable grounds for believing that accusation against a person, who has been booked for offences punishable under Chapter IV and VI of the said Act, is prima facie true, he cannot be released on bail. The learned Magistrate has not discussed at all as to what are the allegations against the respondent and what is the material in support thereof. He has not discussed as to on what basis he has come to the conclusion that the allegations against the respondent do not appear to be true. Without undertaking such an exercise, the grant of bail by the learned Magistrate to the respondent becomes unsustainable in the eyes of law.

Finally, the Bench then aptly concludes by directing in para 18 that:
For the foregoing reasons, the petition is allowed and the impugned order passed by the learned Chief Judicial Magistrate, Bandipora, is set aside. The respondent is directed to surrender before the Special Court where he is stated to be facing trial and apply for fresh bail.

All told, we thus see that the Jammu and Kashmir and Ladakh High Court has left no stone unturned in making it indubitably clear that in the UAPA cases, it is only the Special Court/Session Court which is empowered to decide bail applications. It also must be noted that the Court very elegantly, eloquently and effectively made it absolutely clear that the ineluctable conclusion to be drawn in such cases is that a Judicial Magistrate including the Chief Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested with the jurisdiction to try such offences or grant/refuse bail. No denying it!

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