UAPA Offences Will Go Before Special Court Only When NIA Investigates : Maharashtra Govt To Bombay High Court In Sudha Bharadwaj's Plea For Default Bail

Opposing the default bail plea of Bhima Koregaon- Elgar Parishad accused Sudha Bharadwaj, on Thursday, the Maharashtra Government said that orders passed by the Pune Judge Kishore Vadane were not without jurisdiction even though he was a sessions judge and not a Special Judge under the NIA Act.

During the last hearing Justices SS Shinde and NJ Jamadar had said that the Court's records were consistent with RTI replies received by Bharadwaj that judge KD Vadane's court was not notified as a special court under the NIA Act.

On Thursday, Advocate General Ashutosh Kumbhakoni submitted that cases under the Unlawful Activities (Prevention) Act would go before a special court constituted under the NIA Act, only after the National Investigation Agency is entrusted with the investigation.

And in the present case, the Centre entrusted the NIA with the investigation only on January 24, 2020. Before that the case was being investigated by the state police.The extension of time to file chargesheet was granted by the Pune Court in 2018. Cognizance of the chargesheet was taken in 2019.

"Despite the constitution of special courts, just because UA(P)A is added, the NIA Act wouldn't apply," he said.

Reading the objective of the NIA Act, he argued that the Act is not enacted to have a special judicial machinery to try certain offences but a special investigating agency, which is the NIA.

Therefore, the petitioner seeking default bail on the grounds that the order of November 26, 2018, extending the time to file the charge sheet is without jurisdiction, is "fallacious," he said.

The AG cited the Bombay High Court judgement in the case of Naser Bin Abu Bakr Yafai vs State of Maharashtra to buttress his argument that only once the NIA takes over the investigation would the case go to a special court.

However Justice Shinde, leading the bench pointed out that in Naser's case the chargesheet was submitted before a magistrate having original jurisdiction.

The AG also referred to the Patna High Court judgment in the case Bahadur Kora & Ors. v. State of Bihar, which had held that the NIA Act will only apply when the investigation has been trasferred from the state police.

The AG said his alternate submission, only for the present case, is that Section 11 and 22 of the NIA Act mention the constitution of special courts for 'trials' and not for pre-trial proceedings.

He further submitted that under the UA(P)A Act 'court' means a criminal court under CrPC and merely 'includes' special courts under the NIA Act.

Definition of court under UA(P)A

(d) "court" means a criminal court having jurisdiction, under the Code, to try offences under this Act 1 and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008;

Since 'Magistrate court' is not mentioned in the definition and since UAPA offences are session triable offences, the public prosecutor had no option but to go before a special court for extension of filing of the charge sheet.

"Conspicuous absence of the word Magistrate read with the definition of the word court.. leaves no option," the AG said. "It is not palatable that one (UAPA) Act creates offences but another (NIA) Act decides how they are tried."

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.

It was Yug Chuadhry's argument that all scheduled offences under the NIA Act, which includes UA(P)A would go before a special court. The case will be heard next on July 23.