Point of Law: Offence of Attempt to Murder - Bail Application - Power under Section 439 cannot be exercised when there is specific provision in the statute for filing appeal before High Court against an order of granting or refusing bail to accused

JUDGMENT :

1] In view of Section 21(4) of the National Investigation Agency Act, 2008 (for short “NIA Act”), the papers of the present matter are placed before us in pursuance of the order passed by the learned Single Judge dated 04/08/2021.

2] For adjudication of the issue which we are called upon to decide, it is necessary to state the relevant background facts which are as under :-

F.I.R. No. 35/2016 came to be registered against the applicant for the offences punishable under Sections 307, 341, 342, 435, 323, 504, 506, 143, 147, 148, 149 & 120-B of the Indian Penal Code, Section 5/28 of the Arms Act, Section 135 of the Maharashtra Police Act & Sections 16, 18, 20 & 23 of the Unlawful Activities (Prevention) Act, 1967 (for short "the Act of 1967”) with Police Station Aheri. It is undisputed fact that the investigation for the offences alleged against the applicant was carried out by the State Investigation Agency and not by the National Investigation Agency.

3] The applicant initially preferred regular bail application under Section 439 of the Code of Criminal Procedure before the learned Sessions Judge, Gadchiroli which came to be rejected by the learned Sessions Judge on 23/09/2019. The applicant has therefore filed the present application seeking his release on bail under Section 439 of the Code of Criminal Procedure.

4] The issue which we are called upon to decide is as to whether the Division Bench or Single Judge of this Court can decide the bail application of the applicant in the light of the Bombay High Court Appellate Side Rules and NIA Act.

5] Learned Senior Advocate appearing for the applicant submitted that in view of Section 21(4) of the said Act, the present application will have to be treated as appeal and only the Division Bench of this Court has the power to decide the bail application in the light of the judgments of the Hon'ble Supreme Court in the case of State of Andhra Pradesh vs. Mohd. Hussain reported in (2014) 1 SCC 258, and in the case of Bikramjit Singh vs. State of Punjab reported in (2020) 10 SCC 616. He submitted that all the offences under the UAPA Act, whether investigated by the National Investigation Agency or by the Investigating Agencies of the State Government, have to be tried exclusively by the Special Court set up under Section 22 of the said Act.

6] Per contra, learned APP invited our attention to Section 13(1) of the said Act to submit that unless the Scheduled offences are investigated by the National Investigation Agency, the Special Court under the said Act will not get jurisdiction to try the Scheduled offence. He invited our attention to Sections 6 and 10 of the said Act. He submitted that till the Central Government decides to transfer the investigation to the National Investigation Agency, the State Investigation Agencies have the power to investigate the offences under Scheduled II of the said Act.

7] Learned Senior Advocate invited our attention to the judgment of the Hon'ble Supreme Court in the case of Bikramjit Singh (supra). The Hon'ble Supreme Court in para no. 26 has observed as under :-

“26. …………This Scheme has been completely done away with by the NIA Act, 2008 as all Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act…………….” (emphasis supplied)

8] Placing reliance on the above observations, he submitted that the Sessions Court which has rejected the bail application of the applicant needs to be treated as Special Court under the provisions of Section 22 of the said Act. Consequently, the present application filed under Section 439 of the Code of Criminal Procedure needs to be treated as appeal under Section 21(4) of the said Act.

9] At this stage, it is necessary to consider the judgment of the Hon'ble Supreme Court in the case of Central Bureau of Investigation vs. Prakashan C & Ors. in Cri