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In The High Court of Jammu and Kashmir and Ladakh at Srinagar
Sanjay Dhar, J.
State of J&K through P/S Hajin Bandipora – Appellant
Versus
Hilal Ahmad Parray – Respondent
CRMC No.474/2018
Decided on : 15-7-2022
Code of Criminal Procedure, 1973 – Section 439 – Unlawful Activities (Prevention) Act, 1967 – Section 43-D – Grant of bail – State Government has power to designate one or more Courts of Session as Special Courts for trial of offences under any or all enactments specified in Schedule to NIA Act – For all practical purposes, in absence of a designated Special Court, Sessions Court of area where the offence is committed acquires status of a Special Court as defined in Section 2(h) of NIA Act – A Judicial Magistrate cannot grant or refuse bail in an offence under ULA(P) Act – Magistrate has not discussed at all as to what are allegations against respondent and what is material in support thereof – Without undertaking such an exercise, grant of bail by Magistrate to respondent becomes unsustainable in eyes of law – Impugned order passed by Chief Judicial Magistrate, Bandipora, set aside – Petition allowed. (Paras 7, 14, 16, 17, 18 and 19)
Judgment :
The petitioner-State has challenged order dated 08.08.2018 passed by Chief Judicial Magistrate, Bandipora, whereby the learned Magistrate has admitted the respondent to bail in FIR No.59/2017 for offences under Section 13, 18 and 19 of ULA(P) Act registered with Police Station, Hajin.
2. The only ground that has been urged by the petitioner while impugning the order of grant of bail to the respondent is that the learned Chief Judicial Magistrate did not have jurisdiction to pass the impugned order because, according to the petitioner, it is only a Special Court designated under National Investigation Agency Act, 2008 (hereinafter referred to as the NIA Act), which has jurisdiction to grant or refuse bail in a Scheduled offence.
3. The petition has been resisted by the respondent/accused. It has been contended by the respondent/accused that at the relevant time no Special Courts were designated in terms of the provisions of NIA Act and that offences under ULA(P) Act were triable by ordinary Sessions Courts and, as such, the Chief Judicial Magistrate was having jurisdiction to entertain and decide the bail application even in cases relating to offences under ULA(P) Act.
4. I have heard learned counsel for the parties and perused the material on record.
5. The question of law that has fallen for consideration in this case is whether a Judicial Magistrate has jurisdiction to entertain and decide a bail application in respect of offences under the provisions of ULA(P) Act when no Special Courts have been designated in terms of Section 22 of the NIA Act. In order to find an answer to this question, we need to take notice of certain provisions contained in the NIA Act.
6. Section 22 of the NIA Act, which vests power with State Government to designate Courts of Session as Special Courts, reads as under:—
(2) The provisions of this Chapter shall apply to the Special Courts designated by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely—
(i) references to “Central Government” in sections 11 and 15 shall be construed as references to State Government;
(ii) reference to “Agency” in sub-section (1) of section 13 shall be construed as a reference to the “investigation agency of the State Government”;
(iii) reference to “Attorney-General for India” in sub-section (3) of section 13 shall be construed as reference to “Advocate- General of the State”.
(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is 3[designated] by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.
(4) On and from the date when the Special Court is 3[designated] by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is designated.
7. From a perusal of the aforesaid provision, it is clear that the State Government has power to designate one or more Courts of Session as Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act. Admittedly, as on date of passing of the impugned order, the Government of Jammu and Kashmir had not designated any Special Court in the erstwhile State of Jammu and Kashmir. However, sub-section (3) of Section 22, as quoted above, takes care of a situation where Special Court has not been design
: Grant of bail – State Government has power to designate one or more Courts of Session as Special Courts for trial of offences under any or all enactments specified in Schedule to NIA Act.
Scheduled offences under the U.A.P.A. Act are exclusively triable by Special Courts set up under the N.I.A. Act, and appeals from their judgments, sentences, or orders are to be heard by the Division....
The main legal point established is that the bail application under the NIA Act is maintainable under Section 439 of the Cr.P.C. if the case has not been notified to the Central Government as require....
(1) Accused shall not be entitled to be released on bail only that there are reasonable grounds for believing that accusation against such person is prima facie.(2) Once UA(P) Act is invoked, Magistr....
Bail applications under UAPA must be appealed to a Division Bench under Section 21 of the NIA Act, not maintained before the High Court.
Until a Special Court is constituted by State Government under sub-Section (1) of Section 22 of NIA Act, in case of registration of any offence punishable under UAPA, Court of Sessions of division in....
In the absence of a designated Special Court under the NIA Act, the jurisdictional Sessions Court has the authority to try scheduled offences under UAPA.
The main legal point established is the entitlement to default bail under Section 167(2) Cr.P.C. and the legislative mandate that offences under the Unlawful Activities (Prevention) Act, 1967 are to ....
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