This article has been authored by Shruti Avinash, a second year student at NALSAR University of Law, Hyderabad.
Following the Bhima Koregaon incident, 16 accused were arrested, and various charges were hoisted in order to keep them in custody. Since then, the demise of Fr. Stan Swamy (84) as an undertrial who was repeatedly denied bail has recharged the demand for the release of the accused persons. The allegations against the accused were at first in relation to the incitement of violence at the 2018 Elgar Parishad, but soon turned into allegations of a conspiracy to carry out an assassination of the Prime Minister.
In 2018, the accused were indicted under the stringent Unlawful Activities Prevention Act (1967) and are presently in detention. Over three years following the arrest of Sudha Bharadwaj and 15 others, there has been what appears to be a breakthrough in the form of a procedural lapse in remanding the accused to custody. This development was unearthed by Sudha Bharadwaj’s RTI replies, according to which Additional Sessions Judge (Pune), Kishore Vadane was not appointedas a Special Judge under the NIA Act in 2018/2019.
Justice Kishore Vadane made an order on 26th November 2018, granting an extension of 90 days to the NIA for the filing of chargesheet, and in February 2019, he took cognizance of the 1800-page supplementary chargesheet filed by the Pune police. Oddly enough, without having been designated a Special Judge under Section 11 and Section 22 of the National Investigation Agency Act, Justice Vadane signed as a ‘Special Judge’. As argued by counsel for Ms. Bharadwaj, Dr. Mohit Chaudhry, an order passed without jurisdiction would vitiate the entire proceedings. This paper examines the relevant sections of the NIA Act and the relevant case laws for an order passed without jurisdiction.
Section 11 of the NIA Act provides that a Special Judge may be appointed by the Government on the recommendation of the Chief Justice of the High Court. Alternatively, the Government may also appoint an additional judge in the Special Court, on the recommendation of the Chief Justice of the High Court. An Additional (Special) Judge must be immediately before such appointment, ‘a Sessions Judge or an Additional Sessions Judge in any State.’
Hence, while Justice Vadane was eligible to be appointed as a Special Judge, this is of no relevance (contrary to the arguments of the NIA) as the appointment was not made by the Government on the recommendation of the Chief Justice of the High Court. Here, prima facie, it appears that Justice Vadane did not have the jurisdiction to remand the accused to custody, grant an extension for the filing of the chargesheet or even take cognizance of the chargesheet.
Special Courts under the NIA Act
Section 22(3) of the NIA Act allows that if ‘Special Courts are not established or constituted by the State Government, then the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided in the said chapter of the NIA Act, 2008’. However, this cannot be read as an applicable exception in the present case, as at the time of proceedings, a Special Court had been constituted.
Moreover, as held by the Karnataka High Court in Gauhar Aziz Khomani v. State by Cubbon Park Police, the provision under Section 22 allows for a last-minute transfer of ongoing proceedings from a Sessions Court to a Special Court, if the Special Court had only just been constituted by the State Government. Therefore, the Karnataka High Court read the intent of the legislature that ‘if the offences are the Schedule Offences under the NIA Act, 2008, then in that case, the special procedure is to be adopted for trial of such offences.’ (¶ 17). Hence, there is no room to hold that the seriousness and the schedule of offences allows for unwarranted exceptions to be made in procedure.
It was held by the Kerala High Court in Mammunhi Thalangadi Mahamood v. State Of Kerala that only the Special Court has the original jurisdiction to entertain an application for anticipatory bail with respect to scheduled offences under the NIA Act (triable by the Special Court under the NIA Act). The power of the Sessions Court and of the High Court on their original criminal jurisdiction to entertain an application for anticipatory bail under Sec.438 of the Criminal Procedure Code for scheduled offences triable by the Special Court under the NIA Act is impliedly taken away by Sec.21(4) of the NIA Act.
While this particular pronouncement holds the grant of anticipatory bail as being outside of the Jurisdiction of the Court of Sessions and the High Court, there is nothing to show that the Jurisdiction of the Sessions Court to remand accused to custody, grant extensions and take cognizance is not impliedly taken away by the NIA Act. Here, the very important question arises, that if a Sessions Judge cannot grant bail under the provisions of the NIA Act, how then, can he be empowered to take away the liberty of the accused in the absence of Jurisdiction?
Proceedings on Scheduled Offences
The NIA submitted that it had taken over the Bhima Koregaon Case only in 2020 and hence the NIA Act would not apply in the 2018 procedure. However, this argument is fallacious. This is because, the offences under the UAPA Act and the MCOCA Act (under which initial accusations were made) are Scheduled Offences under Section 6 of the NIA Act, and procedure would require the compliance with the NIA Act, regardless of when the NIA actually took over.
The Patna High Court has held in the case of Aasif P.K. v. The State of Bihar and Ors. (¶ 237)
‘Section 13 of the NIA Act makes it clear that notwithstanding anything contained in the Code of Criminal Procedure, every scheduled offence, investigated by the Agency, shall be tried only by the Special Court within whose local jurisdiction the offence was committed and, on the other hand, if the commission of the scheduled offence is investigated by an officer of the State Police, and not by the Agency, it is the Special Court, constituted, under Section 22 of the NIA Act, by the State Government, which would have the power to hold trial in respect of scheduled offences under the NIA Act.’
Hence, notwithstanding the investigating agency, it is the nature of the offence that warrants the invocation of procedure under the NIA Act.
Orders Passed Without Jurisdiction
As held by the Supreme Court in Chandrabhai K. Bhoir v. Krishna Arjun Bhoir, an order passed without jurisdiction would be a nullity. More astutely, the Supreme Court held in the case of Deepak Agro Foods v. State of Rajasthan and Ors that
‘Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non-est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties.’
The importance of procedural compliance in preventive detention has been underscored by the Supreme Court in Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal. The Supreme Court pronounced that it is the bounden duty of the court to satisfy itself that all the safeguards provided by Law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. The present facts appear to be one of total want of jurisdiction, making the order of extended detention and cognizance of chargesheet illegal. In terms of the UAPA, the Kerala High Court has held in Vikraman & Others v.Union Of India that where the cognizance is bad in law, it is as though no cognizance as such has been taken. Therefore, the competent Court must apply its mind, consider the matter afresh and decide whether cognizance can be taken or not.
In substantive terms, it is unfortunate that the Bombay High Court was not inclined to hear and dispose of the matter on an urgent basis, with personal liberty hanging in the fray. The procedural lapse in remanding Sudha Bharadwaj and the co-accused to extended custody strikes at the legality of the order, on the face of it rendering their detention (since 2018) illegal. The bail applications filed on grounds of this procedural lapse are yet to be adjudicated upon by the Bombay High Court, with the interpretation of the Court being key to the liberty and prolonged detention of the accused. It is now left to see whether mounting political pressure will allow the Bombay High Court to condone such a procedural lapse.