B.A. Patil, J.

The present petition has been filed by accused No.4 under Section 439 of Cr.P.C. praying to release him on bail in Spl.CC.No.330/2015 on the file of XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA Cases) CCH.50 at Bengaluru arising out of Crime No.11/2015 of Pulakeshinagar Police Station, for the offences punishable under Sections 13, 16, 18, 20, 38 of Unlawful Activities (Prevention) Act ('UAP Act' for short); Sections 4, 5, 6 of Explosive Substances Act and Sections 120B, 121A, 511 of IPC.

2. I have heard Sri S. Balakrishnan, learned counsel appearing for the petitioner-accused No.4 and Sri Sandesh J. Chouta, learned Additional Advocate General for the respondent-State.

3. On 7.1.2015 on credible information, CCB police sighted two persons in City Railway Station, Bengaluru who were moving on suspicion. They followed them upto their residential place. They gained entry into their house and took custody of them and registered the case by apprehending the accused and on the basis of the voluntary statement certain explosive materials were recovered in a house at Bhatkal Town. It is further averred that accused No.4-petitioner was working in Dubai and visited India in the month of November, 2009 and at the instance of the remaining accused, he collected explosive substance and preserved the same in his aunt's house. He was also apprehended along with other accused persons. On the basis of the said investigation, the charge sheet has been filed.

4. It is the submission of the learned counsel for the petitioner-accused No.4 that since from the inception, investigation of the case has not been conducted by the Investigating Team constituted under the National Investigating Agency Act, 2008 ('NIA Act' for short). As the investigation has been conducted by the CCB, the petition is maintainable under Section 439 of Cr.P.C. and the petitioner-accused No.4 can seek the bail under the said provision. He further submitted that if one goes by the scheme of the NIA Act, the most important step happens to be the one of entrustment of the investigation of the case to the National Investigating Agency under Sub-section (5) of Section 6 of the NIA Act. Once a decision is taken by the Central Government to direct the National Investigating Agency to investigate the offence, then the provisions of the NIA Act would apply. Section 11 of the NIA Act deals with the constitution of the Court. If that is taken into consideration, it is only the Court which has been created under the NIA Act by the Central Government. The Central Government has to notify the Special Court for trial of the cases under the NIA Act. Only on the basis of entrustment of the case, the Court will not become a Special Court to entertain such applications. As per Section 2(h) of the NIA Act, the special Court means a Court constituted under Sections 11 and 22 of the said Act and as per Section 11 of the NIA Act, the Central Government has to notify the Special Court for trial of scheduled offences specified in the notification and a special Judge has to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. Section 11 of NIA Act is obligatory on the part of the Central Government. But as per Section 22 of NIA Act it is only under certain circumstances enumerated under Section 22(2)(i)(ii) and (iii) of the NIA Act, the State Government may constitute a Special Court. He further submitted that as per Section 7 of the NIA Act by taking into consideration of the gravity of the offence, the Investigating Agency may request the State to associate with the investigation with previous approval of the Central Government and the case may be transferred to State Investigating Agency. The discretion has been given under the Constitution of India to the Central Government. No such special authority has been given to the State Government in this behalf. In the instant case, the case has been reg