MAMMUNHI THALANGADI MAHAMOOD Vs. STATE OF KERALA

JUDGEMENT

(1.) These applications for anticipatory bail under Sec.438 of the Code of Criminal Procedure (for short, "the Code") are preferred by the petitioner who apprehends arrest in cases registered by the Chandera police and taken over and re-registered by the National Investigation Agency (for short, "the NIA") for the offences punishable under Secs.489B and C of the Indian Penal Code (for short, "the Penal Code").

(2.) Sri.M.Ajay, learned Special Public Prosecutor for the NIA has contended that trial of offences scheduled under the NIA Act and allied offences triable by the Special Court constituted under that Act is governed by the said Act. Learned Special Public Prosecutor submits that under Sec.21(1), clarified by Subsec.(4) of the said Act original jurisdiction is vested with the Special Court alone under the NIA Act to entertain an application for 'bail' which should include an application for anticipatory bail as well. The power of the High Court is only to entertain an appeal against an order granting or refusing bail which should include an order granting or refusing anticipatory bail as well. That appeal has to be heard by a Bench of two Judges of the High Court. The NIA Act confers only appellate jurisdiction in the High Court to entertain a request for anticipatory bail. The said provision impliedly takes away jurisdiction of the Court of Session and the original criminal jurisdiction of the High Court to entertain an application under Sec.438 of the Code. It is argued that under the NIA Act, the Special Court is a court of original criminal jurisdiction having the status of a Court of Session and invested with the powers of the Court of Session in the matter of trial and pre-trial matters though certain powers of the magistrate also are conferred on the Special Court. All matters relating to offences investigated by the NIA Act and triable by the Special Court so far as it is not inconsistent with the provisions of the Code are to be dealt with by the Special Court and not by the Courts referred to in the Code. Learned counsel has placed reliance on the decisions in State of Tamil Nadu Vs. V.Krishnaswami Naidu and Anr., 1979 4 SCC 5, State of Gujarat Vs. Salimbhai Abdulgafar Shaikh and Ors., 2003 8 SCC 50, Mohammed Nainar Vs. State of Kerala, 2010 4 KerLT 853 and Bangaru Laxman Vs. State and Anr., 2012 1 SCC 500.

(3.) Sri. Shaijan George, learned counsel for the petitioner has contended that a Special Court constituted under the NIA Act even if is treated as a Court of original criminal jurisdiction, is neither a court of the magistrate nor a Court of Session. The power to grant anticipatory bail conferred by Sec.438 of the Code cannot be exercised by any court other than a Court of Session and the High Court. The Special Court under the NIA Act has therefore no power, either expressly or by implication, to entertain an application for anticipatory bail. The Special Court constituted under the NIA Act gets the power to grant (regular) bail not under any provision of the said Act but by virtue of Sec.437 of the Code which empowers a Court other than the Court of Session or the High Court to grant bail when a person accused or suspected of the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police officer or appears or is brought before such Court not being a Court of Session or the High Court. Hence the expression "bail" used in Subsec.(4) of Sec.21 of the NIA Act should mean 'regular bail' which alone the Special Court is competent to grant and not anticipatory bail which could be granted only by the Court of Session or the High Court under Sec.438 of the Code. Learned counsel has argued that the original criminal jurisdiction of the High Court under Sec.438 of the Code to grant anticipatory bail is not expressly or impliedly taken away by the NIA Act. Reliance is placed on the decisions in Balchand Jain Vs. State of Madhyapradesh, 1977 AIR(SC) 366, Gurbaksh Singh Sibbia Vs. The State of Punjab, 1980 AIR(SC) 1632 and Usmanbhai Dawoodbhai Memon and Ors. Vs. State of Gujarat, 1988 2 SCC 271.