Cognizance Of Bhima Koregaon Chargesheet Vitiated As Pune Judge Wasn't Special Judge Under NIA Act? Bombay High Court To Examine

The Bombay High Court on Monday said that the Court's records were consistent with lawyer-activist Sudha Bharadwaj's RTI replies, according to which Additional Sessions Judge (Pune) Kishore Vadane was not appointed as a Special Judge under the NIA Act in 2018/2019.

"Record is the same as you had annexed under RTI," Justice SS Shinde heading the division bench said at the beginning of the hearing.

The court also asked the State if it had anything additional to show that the judge was assigned the case back then.

Chief Public Prosecutor Aruna Pai said she would respond in due course.

A division bench of Justices Shinde and NJ Jamadar was hearing Bharadwaj's plea seeking bail in default under sections 439, 482 and section 167(2)(a)(i) of the Criminal Procedure Code read with section 43 D(2)of the Unlawful Activities Prevention Act. She has challenged two orders of Judge KD Vadane.

It is Bharadwaj's contention that since Judge Vadane was not appointed as a special judge under Section 11 and 22 of the NIA Act, his order granting a 90 days' extension to the Pune police to file its charge sheet on November 26, 2018, was without jurisdiction.

He was also not authorised to take cognisance of the 1,800-page supplementary charge sheet filed by the Pune police in February 2019, the petitioners claimed.

On Thursday Chaudhry said that he will cite judgements to show how courts have dealt with orders passed without jurisdiction.

"When judgements(orders) are passed without jurisdiction, they are crushed and thrown in the dustbin," he said.

However, Additional Solicitor General Anil Singh for NIA, who began his arguments on Monday said that just because the case was not taken before a special judge would not vitiate the entire proceedings.

"It is a sessions judge who is appointed as a special judge. So he is not, not competent to handle such cases," Singh said.

He further submitted that the Supreme Court is already seized with the same question of law, if a Magistrate can extend time to file a charge sheet under section 43 D of the NIA Act.

However, Chaudhry disagreed. He said that the judgement in the Bikramjit Singh case would not apply to this case. Especially since in the present scenario Judge Vadane was an Additional Sessions Judge and did not have the original jurisdiction of a magistrate to take cognisance under CrPC.

The court also asked Chaudhry to make submissions on a 2014 notification where the Principal District Judge Pune had assigned all ATS cases to the Additional Sessions Court 3, which was presided over by Judge Vadne.

Chaudhry submitted that this was an administrative order not a statutory order under the NIA Act.

He reiterated that under sections 22 and 11 of the NIA Act the Centre and State are empowered to constitute Special Courts and they would be courts of original jurisdiction to try scheduled offences.

"There is no doubt that Mr Vadane was eligible to be appointed as a special judge but there is a world of difference between someone being eligible and someone being appointed as a Special Judge," he said.

"What do they have to say about the fact that judge Vadne wrote 'Special Judge' below his name? Not a word,"he added.

Chaudhry submitted that as per section 22(3) of the NIA Act, if the Special Court was not constituted then the Sessions Court could try scheduled offences under the NIA Act. However, according to his RTI replies there were other courts despite which the case was taken to Judge Vadane.

The bench agreed.

According to NIA's affidavit, the NIA Act or need for cases being tried by a special court would come up only after the NIA took over the investigation. And since NIA took over the Bhima Koregaon Case in 2020 the question of a special court would not arise.

However, Chaudhry submitted that the moment a case registered under an offence such as UAPA or MCOCA which are scheduled under the NIA Act, it would have to be heard by a special court under the NIA Act.

Moreover, even if NIA's contention that the NIA Act would not apply in 2018 was taken at face value, then the CrPC would be applicable. And as per the CrPC, the charge sheet should then have gone before a Magistrate who would have taken cognisance and committed it to the Sessions Court.

"Mr Vadane(Judge) he could not have taken cognisance of the charge sheet and issue process on the chargesheet," Chaudhry said.

The case will be heard on Thursday.