IMPORTANT POINTS:
All persons involved in cases falling under the canopy of the NIA Act, even if no NIA Court is constituted, are entitled to urge their grievance before a Bench of two Judges, whatever be the provision they invoke for institution of proceedings. This would also ensure institutional consistency in the judiciary.

ORDER :

Hariprasad. J.

We are called upon to answer a pointed question raised by a Division Bench in the order of reference dated 06.08.2016 in an unnumbered Criminal Miscellaneous Case ("Crl.M.C.", for short). The question is :

“Whether an order by which the Special Court, constituted under the National Investigation Agency Act, 2008 ("NIA Act" for short), refused to modify or relax the condition imposed in a bail order can be challenged under Section 482 of the Code of Criminal Procedure, 1973 ("Code" for short)?". Subsequently, another Division Bench raised the same question in another unnumbered Crl.M.C. as per order dated 24.10.2016. On the orders of the Hon'ble Chief Justice, the matters are placed before us for resolution of the issue.

2. We heard Sri.Manu Tom Cheruvally and Sri.Shajimon T.B., learned counsel appearing for the petitioners and Sri. Suvin R.Menon, learned Central Government Standing Counsel ("CGSC" for short) and Sri.Arjun Ambalapatta, learned Special Public Prosecutor appearing for National Investigation Agency ("NIA' for short).

3. In order to appreciate the rival contentions, we shall take note of the bare minimum facts involved in the cases. Dismissal of Crl.M.P.No.78 of 2016 in S.C.No.2/2013/NIA pending before the Special Court for trial of NIA cases, Ernakulam ("special court" for short) has been challenged in a Crl.M.C, which is the subject matter of the 1st reference. 4th accused was enlarged on bail with strict conditions. One of the conditions is that the sureties shall, along with basic tax receipts/solvency certificates, produce their title deeds in respect of the property for which they remitted tax. Later, 4th accused filed an application stating that his sureties needed their title deeds returned. In short, he requested the court to modify the bail order, which was turned down through the impugned order. Hence, he approached this Court by invoking Section 482 of the Code.

4. 6th accused in R.C.No.1/2011/NIA/HYD approached the above Court with a petition seeking the release of his passport surrendered as per the directions in a bail order passed by the same court. After considering merits of his contentions, the Special Court dismissed the application. That order is challenged before this Court under Section 482 of the Code which resulted in the 2nd reference order.

5. In the order of reference, the learned Judges pointed out apparent conflicts of judicial opinions expressed in Thadiyantevida Nazeer v. State of Kerala (2011 (3) KLT 734) and Majeed Koliyad v. National Investigation Agency, Kochi (2015 (1) KHC 2611. Certain observations in Majeed Koliyad @ Mohammed Abdul Kader Majeed v. National Investigation Agency, Kochi and another (2014 (2) KHG 620) are also pointed out in the order of reference dated 06.08.2016. For the sake of convenience, Majeed Koliyad @ Mohammed Abdul Kader Majeed v. National Investigation Agency, Kochi and another (2014 (2) KHC 620) is referred to as "Majeed Koliyad-I" and Majeed Koliyad v. National Investigation Agency, Kochi (2015 (1) KHC 261) as "Majeed Koliyad-II".

6. At the outset, Sri. Manu Tom submitted that the petitioner/4th accused in S.C.No.2/2013/NIA is no more. Therefore, Crl.M.C. involved in the 1st order of reference has become infructuous. However, we are bound to answer the issue raised in the order of reference, irrespective of the event that has happened subsequent to the order. Moreover, the same question comes up in the 2nd reference order as well.

7. Since the issue centres around the interpretation of Section 21 of the NIA Act, we shall extract the same:

"21. Appeals.- (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

(2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the