The Exorcism Of UAPA

The Part II of the First Schedule of the CrPC sets out the 'Classification of Offences against Other Laws.' Under the CrPC, the offences under UAPA punishable with imprisonment for more than 7 years are triable by Court of Sessions, while, those punishable with imprisonment up to 7 years and under, are triable by Magistrate's Courts.

However, the said scheme has completely been done away with by the NIA Act. The UAPA has been listed at Serial No. 2 in the Schedule to the NIA Act. Under the NIA Act, all the Scheduled Offences, i.e., offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the State Government, are exclusively triable by Courts of Session, whether or not designated as Special Courts under Section 11 or Section 22 of the NIA Act, as the case may be. In this regard, the Section 13(1) of the said Act categorically lays down that every Scheduled Offence under the NIA Act, shall exclusively be triable by a Special Court.

The said legal proposition was affirmed by the 3-Judge Bench judgment of the Supreme Court dt. 12/10/2020, authored by R.F. Nariman, J., for the Court, in Bikramjit Singh vs The State of Punjab, Criminal Appeal No. 667/2020 (@ Special Leave Petition (Crl.) No. 2933/2020).

Remarkably, under the NIA Act, Special Courts or Sessions Courts are Courts of exclusive Original Jurisdiction, not of referred jurisdiction, as it used to be under UAPA and is still the case under CrPc. Now, the reports by National Investigation Agency (NIA) or State Agency, i.e., police authorities, after investigation are straightway submitted to the Special Court/Sessions Judge, or such Court may take cognizance suo moto, under S. 16(1) of NIA Act, without the intermediary role of Magistrate. Manifestly, the Magistrate has no role, at all, to play under the NIA Act and as such, the provisions of S.173(2) CrPC are otiose to reports under NIA Act.

Significantly, the NIA Act has adopted the device of legislation by incorporation and has incorporated within its sweep, the appropriate procedural provisions from CrPC, with a view to regulate the trial of offences before the Special Court. Notably, only those provisions of CrPC, which have been incorporated by the device of legislation by incorporation, would only apply to the proceedings under NIA Act, and none else. Furthermore, in the entire NIA Act, there is no mention of Judicial Magistrate. Accordingly, the said Magistrate's Courts are of no moment or consequence, in so far as, the NIA Act is concerned.

In other words, the Magistrate's Courts are non-existent and alien as regards the NIA Act and the investigation and prosecution of Scheduled Offences thereunder. Despite the same, it has been seen that several Magistrate's Courts across the country are usurping the powers of Special Courts (or Courts of Session, as the case may be) under the NIA Act, and remanding the persons, accused of scheduled offences under UAPA, unlawfully, either to police or judicial custody. It has further been seen, that applications by prosecution, under S. 43D(2) of the UAPA, are profusely being filed in the Magistrate's Courts, either for grant of police custody or for extension of period of remand, and they are yielding to the same.

As discussed earlier, the provisions of S. 43D UAPA, in toto, not having been expressly incorporated under the NIA Act, shall not apply to the Scheduled Offences to be investigated and prosecuted under the NIA Act.

Further, the procedure for investigation of Scheduled Offences has been laid down under S. 6 of the NIA Act, which provides that upon recording an FIR as to commission of any Scheduled Offence, the officer-in-charge of police station shall forward the report to the State Government, forthwith; Upon receipt of the said report, the State Government shall forward it as expeditiously as possible to the Central Government for determination as to whether on the edifice of information received, the offence is a Scheduled Offence or not, and decide within 15 days from the receipt of the report, whether the same is a fit case to be investigated by the NIA, and till such time the officer-in-charge of the police station, and none else, shall continue with the investigation.

It may be noted, that the provisions under Section 10 of the NIA Act which empower the State Government to investigate and prosecute offences, being qualified by the expression "Save as otherwise provided under this Act," shall not come into play until the mandatory procedure of S. 6 has been exhausted.

Moreover, as regards the grant of Bail, the same is to be found under the very scheme of the NIA Act, and not the CrPC. It is a well-known principle of procedural law, that trial of offences or provision for bail, both are interlinked, and cannot be placed under different legislations. Since, trial is to be conducted under NIA Act, therefore, the provision for bail should also be found there in the setting of the NIA Act itself. In this regard, S. 21(4) is germane, which provides, "notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail."

Thus, it is clear that S. 21(4) is the source, wherefrom the right and remedy of bail under the NIA Act, without any conditions hedged in, is discernible. Accordingly, bail application is maintainable before the Special Court u/S. 21(4), shorn of any qualification or limitation for hearing the bail application.

In view of the above, it is submitted that the fetters or manacles on the right of bail as laid down in S.43D(5) of UAPA Act are non-applicable in the matter of bail u/NIA Act, for the simple reason that the NIA Act has not referred to the said provision to be incorporated under this Act. Likewise, bail provisions under CrPC are also not applicable to bails under NIA Act.

Hence, it is picturesque that the NIA Act is a self-sufficient and Self-Contained Code in itself. It is high time that the police authorities and the presiding officers of the Magistrate's Courts be educated and well-acquainted with the legal regime of the NIA Act as applicable to offences under UAPA, and the restrictions imposed by the legislature.

It is unfortunate that the offences under the UAPA, meant for investigation and prosecution under NIA Act, are to this day besieged by the spirits of CrPC and miscellaneous provisions of UAPA like S. 43D, whose application has been excluded from the scheme of the NIA Act by non-incorporation and the doctrine of cassius omissus. The UAPA needs an exorcism from the aged umbrae of CrPC haunting it, in favour of legal uprightness along with the rights and liberty of the people.