IMPORTANT POINT
Bail applications under UAPA must be appealed to a Division Bench under Section 21 of the NIA Act, not maintained before the High Court.

JUDGMENT :

Hon’ble Ravindra Maithani, J.

Applicant Abdul Malik is in judicial custody in FIR No. 21 of 2024, under Sections 147, 148, 149, 307, 395, 323, 332, 341, 342, 353, 412, 427, 436, 420B IPC, Section 3 and 4 of Prevention of Damage to Public Property Act, 1984, Section 7 of Criminal Law Amendment Act, 1932, Section 3/25, 4/25, 7/25 of the Arms Act, 1959 and section 15/16 of the Unlawful Activities (Prevention) Act, 1976 (“UAPA”), Police Station Banbhoolpura, District Nainital. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. As soon as the matter is taken up, learned State counsel raised question with regard to the maintainability of the bail application. She submits that the applicant seeks bail under the provisions of the UAPA. The bail rejection order has been passed by the Sessions Judge, Haldwani. Therefore, it is argued that instant bail application is not maintainable, instead the applicant ought to have appealed the bail rejection order, in view of Section 21 of the National Investigating Agency Act, 2008 (“the NIA Act”).

4. Instant bail application on merits has not been heard. Arguments have been heard on the question of maintainability of the bail application.

5. Learned Senior Counsel appearing for the applicant submits that instant bail application is maintainable. He referred to Section 13 of the NIA Act to argue that the scheduled offences investigated by National Investigation Agency (“Agency”) can only be tried by the Special Court, as constituted under Section 11 of the NIA Act. Learned Senior Counsel would submit that the appeal under Section 21 of the NIA Act, may be preferred only against judgment and order passed by the Special Court. It is argued that in the instant case, the bail rejection order has not been passed by any Special Court, instead it has been passed by the Sessions Court. Learned Senior Counsel has placed reliance on the principle of law, as laid down in the case of Bahadur Kora and others Vs. State of Bihar, 2015 SCC OnLine Pat 1775.

6. In the case of Bahadur Kora (supra), the Full Bench of Hon’ble Patna High Court has answered the questions relating to the issue and in para 44 observed as follows:-

“44. The second is about Sub-section (3) of Section 22 of the Act. It refers to “any offence punishable under this Act”. Even a microscopic analysis of the Act discloses that the Act does not define any independent offences nor does it provide for punishment thereof. It is felt that the proper expression to be employed, would have been “any offence which is liable to be investigated and tried under this Act”. We, therefore, hold that:

(A) the Judgment in Aasif's case (supra), insofar as it held that Investigating Agency of the State Government can investigate and try offences in accordance with the provisions of the N.I.A. Act, in the cases where offences punishable under the Unlawful Activities (Prevention) Act are alleged, and that such cases must be tried by the Courts of Sessions under Sub-section (3) of Section 22 of the N.I.A. Act, cannot be said to have laid the correct law;

(B) the cases even where offences punishable under the provisions of U.A.P. Act are alleged shall be tried by the Courts as provided for under the Cr.P.C. and not in accordance with the special procedure, under the Act unless (i) the investigation of such cases is entrusted by the Central Government to the N.I.A., and (ii) the N.I.A. transfers the same to the Investigating Agency of State Government.

The Appeals shall be treated as Bail Applications, to be heard under Section 439 of Cr.P.C. and the registry shall place the same before the learned Single Judges after requiring the parties to alter the provisions of law;

(C) all the cases in the State of Bihar, which are being tried by the Courts of Sessions, on the basis of the Judgment of this Court in Aasif's case (supra), shall stand transferred to the Courts that otherwise have jurisdiction to try them; and

(D) none