UAPA - Sessions Court's Order Denying Bail Can Be Challenged Only By Appeal Under Section 21 NIA Act Before Division Bench : Madras High Court

Settling conflicting views, a Full Bench of the Madras High Court has held that an order passed by a Sessions Court denying bail to an accused under the Unlawful Activities(Prevention) Act 1967 (UAPA) can be challenged only by way of an appeal under Section 21 of the National Investigation Agency (NIA) Act.

Such an appeal can be heard only by a division bench of the High Court. Applications under Section 439 or 397 of the Criminal Procedure Code are not maintainable against the rejection of bail by the Sessions Court in a UAPA case, the Court clarified.

A 3-judge bench comprising Justices P N Prakashh, V Sivagnam, RN Manjula answered the reference made to it as follows :

"An order passed by a Court of Session dismissing a bail application in a case involving offence(s) under the Unlawful Activities (Prevention) Act,1967, must be challenged only by way of an appeal under Section 21 of the National Investigation Agency Act, 2008. Consequently, such an appeal would lie only before a Division Bench vide Section 21(2) of the National Investigation Agency Act, 2008. The decision of the Division Bench of this Court in A. Raja Mohammed (supra)and that of a learned single Judge in Abdulla (supra) to the contrary, will stand overruled".

The reference was made by a Single Bench of Justice AD Jagadish Chandira in January this year taking note of conflicting views in two judgments regarding the applicability of NIA Act to a UAPA case which is being investigated by the state police.

The following questions were referred :

i)whether an application against the order passed by the District and Sessions Judge in a matter concerning UAP Act shall be numbered as a bail application or an appeal

ii)whether, it has to be posted before the Single Judge or a two Judges Bench of this Court.

Reasoning of the full bench

The judgment of the Full Bench, authored by Justice Prakash, is based on the precedent laid down by the Supreme Court in the case Bikramjit Singh vs State of Punjab. In Bikramjit, a 3-judge bench of the Supreme Court held that all scheduled offences under NIA Act, which include UAPA, are to be dealt with in accordance with the procedure under the NIA Act, even if such cases are investigated by the state police and not the NIA.

The full bench also took note of a judgment of the Patna High Court 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 Madras High Court said that the reasoning of the Patna High Court "did appeal" to it but in view of the authoritative pronouncement of the Supreme Court in Bikramjit Singh case, the applicability of NIA Act to UAPA offences is no longer open to doubt.

"..the decision of the Supreme Court in BikramjitSingh (supra)holds the field today. We must, therefore, yield to the wise counsel of St.Augustine who said "Roma locutaest, causa finitaest (When Rome has spoken, the case is closed)", the Full Bench said in the judgment.

It added :

"Once it is held that Chapter IV of the NIA Act, 2008, would apply to a Court of Session trying the UAPA offences by virtue of the powers conferred under Section 22(3) of the NIA Act, 2008, the inevitable consequence is that an order of the Court of Session rejecting an application for bail in a matter concerning the UAPA offences can be challenged only by way of an appeal under Section 21 of the NIA Act, 2008, before a Division Bench of this Court, and not by way of an application under Section 439 Cr.P.C. The position would remain the same even in cases where composite offences are alleged to have been committed"

Full Bench raises concern about practical difficulties

Even while answering the reference as above, the Madras High Court raised certain concerns about practical difficulties which might arise by following the interpretation laid down by the Supreme Court.

Advocate John Sathyam, counsel for the petitioner, drew the court's attention to the fact that even Explosives Substances Act is a scheduled offence under the NIA Act. This would mean that final reports will have to be filed before the Sessions Court in routine country bomb cases where UAPA have been invoked.

"In our considered opinion, the very purpose and object of the NIAAct would stand defeated if all and sundry run of the mill country bomb cases are treated as terrorist offences and sent to Special Courts/Sessions Courts for trial", the Court observed.

It underscored that the Sessions Courts are already overburdened with routine judicial work.

The Court also flagged another anomaly as follows :

"That apart, we find yet another incongruity, inasmuch as when a scheduled offence is under investigation by the C.B.I., it neither falls under the category of N.I.A. nor under the category of State agency, with the result that the NIA Act would not apply to such cases. The final report of the CBI will have to befiled only before the regular jurisdictional Magistrate when it discloses ascheduled offence in the hypothetical case referred to above".

Mr. R.Sankaranarayanan, Additional Solicitor General, said that he will draw the attention of Union Ministry of Law and Justice to these aspects.

"We trust and hope that these issues would be looked at by the relevant stakeholders with the seriousness that they deserve", the High Court observed.

Case Details

Title : Jaffar Sathiq @ Babu v. State

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