Point of Law: Section 22(1) of Act provides that State Government may constitute one or more Special Courts for trial of offences under any or all of enactments specified in Schedule.

ORDER :

This petition seeking a writ of habeas corpus has been filed seeking quashment of orders dated 09.01.2023 and 17.01.2023 passed by 49th City Civil and Sessions Judge and Special Judge for trial of National Investigation Agency (hereinafter referred to as 'the Special Court' for short) cases at Bangalore, granting extension of remand / detention and dismissing the application for default bail, respectively. The petitioners in addition, seek a direction to the respondents to set them at liberty by imposing reasonable conditions to ensure their appearance before the competent court.

2. The relevant facts which are not in dispute, lie in a narrow compass. On 12.10.2022, Police Sub-Inspector of Panambur Police Station, Mangaluru City registered Crime No.71/2022, against the petitioners for offences under Sections 121, 121A, 121B, 153A and 109 of Indian Penal Code, 1860 and under Section 13 and 18(1)(B) of the Unlawful Activities (Prevention) Act, 1967 on the ground that the petitioners are members of Popular Front of India, which is an organization banned by the Central Government by an order dated 28.09.2022. The allegation against the petitioners is that they were engaged in unlawful activities. The petitioners were arrested on 12.10.2022 and were produced before the Magistrate. The Magistrate, by an order dated 28.12.2022 committed the case to Special Court.

3. The Special Court by an order dated 09.01.2023 has extended the custody of the petitioners for a period from 90 days to 180 days. The petitioners, on 12.01.2023 after completion of 90 days filed applications seeking default bail. The Special Court, by an order dated 17.01.2023 rejected the applications seeking default bail and held that the Special Court has jurisdiction to try the offences. It is not in dispute that during the pendency of the petition, the State Investigation Agency has filed charge sheet in Special Court on 10.04.2023 and cognizance of the offence has been taken by Special Court on 17.04.2023.

4. Learned counsel for the petitioners, while inviting the attention of this Court to paragraph 63 of the decision of the Hon'ble Supreme Court in 'GAUTAM NAVLAKHA VS. NATIONAL INVESTIGATION AGENCY', (2021) SCC ONLINE SC 382 submitted that in case, the order of remand is absolutely illegal and the same is afflicted with vice of lack of jurisdiction and therefore, a writ of habeas corpus would lie. It is further submitted that the investigation has been conducted by State Police and there is no notification under Section 22(1) of the National Investigation Agency Act, 2008 (hereinafter referred to as 'the Act' for short) constituting Special Court. Therefore, by virtue of Section 22(3) of the Act, the Court of Session in Mangalore alone has the jurisdiction to deal with the matter and the order of extension of remand and the prayer for grant of default bail could have been considered only by the Court of Session in Mangalore.

5. It is therefore, contended that the orders dated 09.01.2023 and 17.01.2023 passed by the Special Court are per se without jurisdiction and therefore, the writ petition seeking writ of habeas corpus is maintainable. It is also urged that mere filing of charge sheet and cognizance of offence being taken by the Special Court does not divest the petitioners of their rights to seek default bail. In support of aforesaid submissions, reliance has been placed on decision of Hon'ble Supreme Court in 'BIKRAMJIT SINGH VS. THE STATE OF PUNJAB (2020) 10 SCC 616 and a Division Bench judgment of Bombay High Court in 'SUDHA BHARADWAJ AND OTHERS VS. NATIONAL INVESTIGATION AGENCY AND OTHERS', (2022) Cri.LJ 752.

6. On the other hand, learned State Public Prosecutor-2 has submitted that the Central Government had issued a notification dated 31.12.2012 under Sect