Case Note & Summary
The matter arose from an FIR initially registered with Vishrambaug Police Station in connection with the Elgar Parishad programme held on 31st December 2017, alleging offences under the Indian Penal Code and later the Unlawful Activities (Prevention) Act, 1967. The applicant, Sudha Bharadwaj, was arrested on 28th August 2018 and subsequently detained. A report seeking extension of the period of investigation was filed by the Public Prosecutor, and the learned Additional Sessions Judge, Pune, extended the detention by 90 days on 26th November 2018. The charge-sheet was filed on 21st February 2019, and cognizance was taken on the same day by the same judge. The applicant filed an application for default bail under section 167(2) CrPC, contending that the judge who extended the detention and took cognizance was not designated as a Special Judge under the NIA Act, 2008, and thus lacked jurisdiction. Information obtained under the Right to Information Act revealed that the concerned judge had not been appointed as a Special Judge by the Central or State Government. Consequently, the applicant sought quashing of the orders dated 26th November 2018 and 21st February 2019 and release on default bail. The High Court, after considering the provisions of the NIA Act and UAPA, held that only a Special Court designated under the NIA Act could extend detention and take cognizance of scheduled offences. The orders passed by the non-designated judge were held null and void, and the applicant’s right to default bail had accrued. The applications were allowed, and the orders were quashed, resulting in the release of the applicants on bail.
Headnote
A) Criminal Procedure - Default Bail - Section 167(2) CrPC r/w Section 43-D(2) UAPA - Issue of whether an accused is entitled to default bail if the extension of detention and cognizance were granted by a court not designated as a Special Court under the NIA Act - Applicant contended that the orders were void, thus statutory period expired and default bail accrued - Held that the orders were without jurisdiction and the applicant was entitled to be released on default bail (Paras 6, 11, 15).
B) Criminal Procedure - Jurisdiction of Special Courts - Sections 11 and 22 NIA Act, Section 43-D(2) UAPA - Interpretation of provisions regarding designation of Special Courts for trial of scheduled offences - Applicant argued that only a Special Court designated under NIA Act can exercise jurisdiction under UAPA for extension of detention and cognizance - Held that the orders passed by a judge not so designated were nullities (Paras 11, 13).
C) Criminal Procedure - Cognizance - Section 190 CrPC, Section 22 NIA Act - Validity of cognizance taken by a judge not appointed as Special Judge - Applicant challenged cognizance as without jurisdiction, rendering subsequent proceedings invalid - Held that cognizance by a non-designated judge was void (Paras 7, 11).
Issue of Consideration
Whether the extension of detention under section 43-D(2) UAPA and the cognizance of offences by a judge not designated as a Special Judge under the NIA Act were without jurisdiction, and whether the applicants are entitled to default bail under section 167(2) of the Code of Criminal Procedure, 1973.
Final Decision
Application allowed; the orders dated 26th November 2018 and 21st February 2019 passed by the learned Additional Sessions Judge were quashed as being without jurisdiction; the applicants were entitled to be released on default bail.
Law Points
- default bail under section 167(2) CrPC
- jurisdiction of Special Court under NIA Act
- extension of detention under section 43-D(2) UAPA
- cognizance of offences
- designation of Special Judge under sections 11 and 22 NIA Act
- nullity of orders by court without jurisdiction
- right to default bail upon expiry of statutory period without valid extension
Case Details
2021 LawText (BOM) (12) 79
CRIMINAL BAIL APPLICATION NO.2024 OF 2021 WITH CRIMINAL APPLICATION NO.1458 OF 2019 WITH INTERIM APPLICATION NO.376 OF 2020
S.S. Shinde, N.J. Jamadar
Dr. Yug Mohit Chaudhary, Ms. Payoshi Roy, Ms. Chandni Chawla, Mr. Sudeep Pasbola, Mr. Barun Kumar, Mr. R. Sathyanarayanan, Mr. Anil C. Singh, ASG, Mr. A.A. Kumbhakoni, Advocate General
National Investigation Agency, State of Maharashtra, and Others
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Nature of Litigation
Bail applications under section 482 of the Code of Criminal Procedure, 1973 seeking default bail under section 167(2) read with section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967, on the ground that the judge who extended detention and took cognizance was not a designated Special Court under the National Investigation Agency Act, 2008.
Remedy Sought
Quashing of orders dated 26th November 2018 (extension of detention) and 21st February 2019 (cognizance) and release of the applicants on default bail.
Filing Reason
The applicant contended that the orders extending the investigation period and taking cognizance were passed by a judge who was not appointed as a Special Judge under sections 11 or 22 of the NIA Act, rendering those orders null and void, and that the statutory period for filing the charge-sheet had expired, entitling the applicant to default bail.
Previous Decisions
The applicant's default bail application (Exh.169) was rejected by the learned Additional Sessions Judge on 5th September 2019. The first and second bail applications (Exh.43 & 164) were rejected on 6th November 2019. The Public Prosecutor's report seeking extension of investigation was allowed on 26th November 2018, and cognizance was taken on 21st February 2019 by the same judge.
Issues
Whether the orders of extension of detention and cognizance passed by a judge not appointed as a Special Judge under the NIA Act are valid.
Whether the applicants are entitled to default bail under section 167(2) CrPC read with section 43-D(2) UAPA due to the lack of jurisdiction of the court extending detention and taking cognizance.
Submissions/Arguments
The judge who extended the detention and took cognizance was not appointed as a Special Judge under the NIA Act, either by the Central Government under section 11 or by the State Government under section 22, and therefore lacked jurisdiction to deal with scheduled offences.
Only a Special Court designated under the NIA Act can extend detention beyond 90 days under section 43-D(2) UAPA; the orders passed by a non-designated judge are null and void.
Information obtained under the Right to Information Act confirmed that the concerned judges were not designated as Special Judges during the relevant period.
The applicant had a right to default bail because the charge-sheet was not filed within the statutory period of 90 days from the date of arrest or production before a magistrate, and no valid extension was granted by a competent Special Court.
The applicant's bail application was pending when the charge-sheet was filed, and thus the right to default bail had crystallized.
Ratio Decidendi
Only a Special Court designated under the National Investigation Agency Act, 2008 has jurisdiction to extend the period of detention beyond 90 days under section 43-D(2) of the Unlawful Activities (Prevention) Act, 1967 and to take cognizance of scheduled offences. Orders passed by a judge not appointed as a Special Judge under section 11 or 22 of the NIA Act are nullities. If the statutory period for filing the charge-sheet expires without a valid extension by a competent Special Court, the accused acquires an indefeasible right to default bail under section 167(2) of the Code of Criminal Procedure, 1973.
Judgment Excerpts
The applicant asserts that, in particular, Shri K.D. Vadane, learned Additional Sessions Judge, who extended the detention of the applicant by order dated 26th November, 2018 and took cognizance of the offences by order dated 21st February, 2019 was not at all appointed as Special Judge/ Additional Special Judge by the Government of Maharashtra under section 22 of the NIA Act or by the Government of India under section 11 of the NIA Act, and, thus, had no jurisdiction to deal with the Scheduled Offences under the NIA Act.
Procedural History
FIR No. 4 of 2018 was registered at Vishrambaug Police Station on 8th January 2018 alleging offences under sections 153A, 505(1)(b), 117 read with 34 IPC. On 6th March 2018, section 120B IPC was added. UAPA sections were added on 17th May 2018. The applicant was arrested on 28th August 2018 and produced before the Chief Judicial Magistrate, Faridabad, who granted transit remand. A habeas corpus petition was filed, and the applicant was placed under house arrest until 27th October 2018, when she was taken into custody by Pune police. The Public Prosecutor filed a report seeking extension of investigation on 22nd November 2018, and on 26th November 2018, the learned Additional Sessions Judge extended detention by 90 days. The charge-sheet was filed on 21st February 2019, and cognizance was taken on the same day. The applicant’s default bail applications were rejected on 5th September 2019 and 6th November 2019. The Central Government directed NIA to take over the investigation on 24th January 2020, and NIA filed a charge-sheet on 9th October 2020.
Acts & Sections
- Code of Criminal Procedure, 1973: 167(2), 482
- Unlawful Activities (Prevention) Act, 1967: 13, 16, 17, 18, 18-B, 20, 38, 39, 40, 43-D(2)
- Indian Penal Code, 1860: 120B, 121, 121(A), 124(A), 153A, 505(1)(b), 117, 23, 34
- National Investigation Agency Act, 2008: 6(5), 8, 11, 22
