All UAPA Offences Investigated By NIA Or State Police Are Exclusively Triable By 'Special Courts': SC [Read Judgment]

The Supreme Court has observed that 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 the NIA Act.

The three judge bench headed by Justice Rohinton Fali Nariman observed that the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b) of the Unlawful Activities (Prevention) Act.

In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone, the bench also comprising  Justices Navin Sinha and KM Joseph was considering an appeal filed by a murder accused, who was also accused of offence under Section 13 of the Unlawful Activities (Prevention) Act.

The Accused, Bikramjit Singh, was remanded to custody by a Sub-Divisional Magistrate. After expiry of 90 days in custody, he filed an application for default bail before Sub-Divisional Judicial Magistrate. This bail application was dismissed on the ground that the Sub-Divisional Judicial Magistrate had already extended time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by UAPA. This Order was later set aside by the Special Court holding that under the UAPA read with the NIA Act, the Special Court alone had jurisdiction to extend time to 180 days under the first proviso in Section 43-D(2)(b). However, the default bail plea was refused. Later, the Punjab and Haryana High Court set aside this order of the Special Court, holding that in case the investigation is being carried out by the State police, the Magistrate will have power under Section 167 (2) Cr.P.C. read with Section 43 (a) of UAP Act to extend the period of investigation upto 180 days and then, commit the case to the Court of Sessions as per provisions of Section 209 Cr.P.C., whereas in case the investigation is conducted by the agency under the NIA Act, the power shall be exercised by the Special Court and challan will be presented by the agency before the Special Court.

Before the Apex court, the accused raised two fold contentions. One, that the Special Court had been set up as an exclusive Court to try all offences under the UAPA, such offences being scheduled offences relatable to the NIA Act, it was the Special Court alone which had exclusive jurisdiction to extend the period of 90 days to 180 days under Section 43-D (2)(b) of the UAPA. Second, right to default bail was not extinguished by the filing of the charge sheet subsequent to his filing of bail application.

To answer the first contention, the Apex Court bench referred to relevant provisions the three enactments, the CrPC, NIA Act and the UAPA Act and observed:

What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts. What is equally clear from a reading of Section 16(2) of the NIA Act is that even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence – albeit in a summary way if it thinks it fit to do so. On a conspectus of the abovementioned provisions, Section 13 read with Section 22(2)(ii) of the NIA Act, in particular, the argument of the learned counsel appearing on behalf of the State of Punjab based on Section 10 of the said Act has no legs to stand on since the Special Court has exclusive jurisdiction over every Scheduled Offence investigated by the investigating agency of the State.

The court noted that, under the first proviso in Section 43-D(2)(b) of UAPA, the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if "the Court" is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. Especially noticing the change in legal position after enactment of NIA Act, the bench further observed: 

"Before the NIA Act was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate's Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions. This Scheme has been completely done away with by the 2008 Act 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. In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone. Thus, under the aforesaid Scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, "the Court" being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgement has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial inter alia upon a police report of such facts."

Second question was also answered in favour of appellant by holding that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. The court said:

"It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted."

Case name: BIKRAMJIT SINGH vs. STATE OF PUNJAB
Case no.: CRIMINAL APPEAL NO. 667 OF 2020 
Coram: Justices RF Nariman, Navin Sinha and KM Joseph
Counsel: Sr. Adv Colin Gonsalves for appellant, Adv Jaspreet Gogia for the State

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