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.