SAHADATH HOSSAIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the accused in Crime No.1640/2016 of Kalady Police Station, which was registered for offences punishable under Sec. 489(B) & (C ) of Penal Code and Sec. 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 Sec. 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 Vs. 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 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 Sec. 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 Sec. 2(1)(g) of the National Investigating Agency Act, 2008 (NIA Act, for short). Under Sec. 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 Sec. 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 Honourable Supreme Court in State of Andhra Pradesh and Another Vs. 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 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 Sec. 439 or under Sec. 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 Sec. 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 Sec. 439 of Crimial P.C. He placed reliance on a Full Bench decision of the Patna High Court in Bahadur Kora Vs. State of Bihar [2015 CRL.L.J.2134]. It was held therein that, only when the offence alleged in a case 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 Sec. 21(4) of the NIA Act would not be maintainable.