[NIA Act] Order Refusing Or Granting Bail To Accused Appealable U/S 21(4), Not As Petition Under CrPC: Manipur High Court

The Manipur High Court held that an order of granting or refusing bail to an accused for offences under the National Investigation Agency Act, 2008 (NIA Act) can be challenged as an Appeal under Section 21(4) of the Act and not as a Petition filed under Sections 439(2)/482 Cr.PC.

Further, it was held that the investigation of the case conducted by an agency constituted by a State Government falls within the purview of Section 21 of the Act.

Justice Golmei Gaiphulshillu was considering the petition was filed under Section 439(2) Cr.PC r.w. Section 482 Cr.PC by the petitioner/state against the order of the Special Court (NIA) that granted bail to the respondents/accused.

The respondents disputed the maintainability of the petition and argued that the application ought to have been filed as an Appeal under Section 21(4) of the NIA Act and not as a petition under Section 482 Cr.PC.

The petitioner/state contended that the bail order of the Special Court being an interlocutory order could not be appealed under the NIA Act as Section 21(1) bars any appeal against an interlocutory order. Further, the petitioner contended that Section 21 NIA Act only applies when the investigation is conducted by a Central Agency. As the investigation was carried out by the State Agency in the present case, Section 21 could not apply. Therefore, the petition is maintainable under Section 482 Cr.PC.

The High Court framed three issues to be adjudicated for the present case: (a) Whether a bail order should be challenged in an Appeal or as under the present Petition (Section 439(2) Cr.PC r.w. Section 482 Cr.PC)? (b) If it should be challenged in an appeal, whether it is under of Section 21(1) or Section 21(4) of the NIA Act (c) Whether Section 21(1)/(4) only applies to investigation conducted by an agency formed by the Central Government or even applies to a State agency?

Challenging a bail order

The High Court referred to Section 21(1) of the NIA Act which provides that an interlocutory order of Special Court cannot be appealed before the High Court. Even though allowing or rejecting bail is an interlocutory order, Section 21(4) of the NIA Act provides specifically for appeal to the High Court against a bail order of the Special Court.

Therefore, the Court stated that even if a bail order is an interlocutory order, it can be appealed as per Section 21(4) NIA Act.

“…it is clear that in spite of being an interlocutory order, the order of the Special Court granting or refusing bail shall be filed on an appeal.”

The High Court referred to the Supreme Court judgment in State of Andra Pradesh thr. I.G, NIA vs Mohd. Hussain Alias Saleem (2013 AIR SCW 5676), where it was held in case of an offence under the NIA Act, an order granting or refusing bail is made appealable under Section 21(4) and it an exception to Section 21(1) as it concerns the liberty of the accused.

Investigation by State Agency

The Court noted that neither Section 21 nor other provisions of the Act specify whether Section 21 only applies when an investigation is conducted by the Central Government and not by an agency constituted by the State Government. Since Section 21 is silent about the issue, it has to be presumed that it is applicable to investigation conducted by agencies of both Central and State Government.

“If the Section 21 is to be applied only to the Central Government constituted agency, then the legislatures must put a provision separately for State constituted agency. Hence, the Section 21 is silent about the applicability of the agencies. It is presumed that both Sections 21(1) and 21(4) are applicable to the investigation conducted by the Central Government as well as the agency constituted by the State Government (State Agency)” the Court observed.

The Court was of the view that the investigation by Central or State Agency will fall under Section 21 of the Act. In the present case, the Court remarked that the Special Court was constituted under Section 22(1) of NIA Act through a notification dated 10.06.2022 by the Government of Manipur after consultation with the Chief Justice of the Manipur High Court. Therefore, Section 21 also applies to the investigation carried out by the investigation agency of Manipur

In conclusion, the Court stated that “On combined reading of the Section 21(1) and Section 21(4) of the Act, it is evident that the present applications filed by the State come/fall under section 21(4).”

The Court thus held that the application filed by the petitioner/state under Section 439(2) of the Criminal Procedure r/w 482 was not maintainable as it ought to have been filed under section 21(4) of the NIA Act.

Case title: State of Manipur vs. Lhaineikim Lhouvum@ Kikim (Cril. Petn. No. 33 of 2024)

Citation: 2024 LiveLaw (Man) 6

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