Ashok Mutu Bharat Vs State of Chhattisgarh

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 29 of 2024

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Ashok Mutu Bharat S/o Shri Uday Kumar Aged About 28 Years At - Shankar Nagar, Sector -1, Mesonet, Thana - Civil Lines, Tehsil And District - Raipur, Chhattisgarh. (Details Of The Appellant Are Wrongly Mentioned In The Impuged Order)

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---- Appellant

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Versus

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State Of Chhattisgarh Through SHO P.S. - Civil Lines, Raipur, Chhattisgarh.

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---- Respondent

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For Appellant : Shri Vinay Nagdev, Advocate. For Respondent : Shri RS Marhas, Additional AG with Dr. Surendra Kumar Dewangan, PL.

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Hon'ble Shri Ramesh Sinha, CJ & Hon'ble Shri Deepak Kumar Tiwari, J

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Order On Board

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Per Deepak Kumar Tiwari, J

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24/01/2024 :

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This Appeal under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the Act, 2008’) has been preferred challenging the order dated 14^th December, 2023 passed by the 7^th Additional Sessions Judge, Raipur, whereby the application preferred by the appellant under Section 439 of the CrPC for grant of bail has been rejected, as the appellant has been arrested in

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connection with Crime No.310/2023, registered at Police Station Civil Lines, District Raipur (ST No.206/23) for offence under Section 370 of the IPC read with Section 4, 5 & 7 of the Prevention of Immoral Trafficking Act.

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Prosecution case is that upon receipt of information on 24.06.2023 the concerned police team raided Blue Moon Spa Centre situated at Raipur and found that owner of the spa – present appellant along with Ashok Sahu – Manager of the spa and Vivek Sahu – Assistant Manager and Director – Kunal Rathi in the garb of running a spa hired 6-7 girls and got them engaged in the prostitution forcefully. From the said spa, incriminating articles have also been recovered. On the basis of aforesaid allegations, the accused persons have been arrested, however, Director - Kunal Rathi fled away from the spot.

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It is pertinent to mention here that the earlier bail application filed under Section 439 of the CrPC for grant of bail has been rejected by 12^th Additional Sessions Judge, Raipur in BA No.1740/2023 on 30^th June, 2023 (Annexure-A/2). Thereafter the appellant had preferred the first bail application before this Court and this Court vide order dated 21.7.2023 passed in MCRC No.4768/2023 had rejected the application on merits. Thereafter, the appellant had preferred 2^nd bail application before this Court viz. MCRC No.7296/2023 which was also rejected on 13.10.2023 and then, 3^rd bail application has been moved on behalf of the appellant viz. MCRC No.8671/2023, which was dismissed as withdrawn on 8.12.2023.

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Before dwelling on the issue on merits, this Court put specific query

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as to whether against the impugned order this Appeal would lie in view of the provision contained under Section 21 (4) of the Act, 2008, to which learned counsel for the appellant fairly submits that the impugned order has not been passed by the Special Court designated under the Act, 2008, which is not disputed by learned State Counsel.

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Under the Act, 2008, the Special Court has been defined under Section 2 (h) which reads thus:-

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“Special Court” means a Court of Session designated as Special Court under section 11 or, as the case may be, under section 22.”

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Section 6 of the Act, 2008 provides for investigation of Scheduled Offences whereas Section 10 provides for power of the State Government to investigate Scheduled Offences. Section 11 speaks about the power of Central Government to constitute the Special Court whereas Section 22 speaks about the power of the State Government to constitute the Special Court.

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In the State of Chhattisgarh, vide notification dated 15.1.2021, for the purposes of sub-section (1) of Section 22 of the Act, 2008 for the trial of Scheduled Offences, the following Courts were notified:-

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S. No.	Special Courts	Jurisdiction
(1)	(2)	(3)
1.	I Additional Sessions Judge, Bastar at Jagdalpur	Civil District Bastar at Jagdalpur
2.	I Additional Sessions Judge, Dantewara	Revenue District Dakshin Bastar Dantewara
3.	II Additional Sessions	Revenue District Sukma and

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	Judge, Dantewara	Bijapur
4.	I Additional Sessions Judge, Kanker	Civil District Uttar Bastar Kanker
5.	Additional Sessions Judge, Kondagaon	Civil District Kondagaon
6.	Sessions Judge, Bilaspur	Rest of the Districts of the State.
Note.	In the event of the above me vacant then the cases shall be Judge of the division or in hi Additional Sessions Judge.	ntioned Special Court/s lying disposed of by the Sessions s absence by the senior most

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From perusal of the above chart, it is explicit that the 7^th Additional Sessions Judge, Raipur or even no Court at Raipur has been notified as Special Court under sub-section (1) of Section 22 of the Act, 2008, and the Court of Sessions Judge, Bilaspur was designated as Special Court even for the jurisdiction of Raipur district. As the impugned order has not been passed by the Special Court in the present case, no Appeal under Section 21 (4) of the Act, 2008 lies.

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Learned State Counsel would submit that in the instant matter the investigation has not been taken up by the National Investigating Agency, though offence under Section 370 of the IPC is a Scheduled Offence and the same was added by the Act No.16/2019 with effect from 2^nd August, 2019 and for the purposes of the Act, 2008, no such exercise was undertaken as stipulated under Section 6 of the Act, 2008.

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10.The issue concerning the offence being a Scheduled Offence under the Act, 2008 cannot be decided unless the Central Government

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determines/notifies that the offence is Scheduled Offence and the same was fit to be investigated by the Agency as provided under Section 6 (4) of the Act, 2008 and the Special Court constituted under the Act, 2008 has only jurisdiction to try the case.

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11.The said issue directly came for consideration before the High Court of Patna in the matter of Bahadur Kora and others Vs. State of Bihar {2015 (2) MWN (Cr.) 305 (FB) (Pat.) : 2015 CrLJ 2134 : 2015 SCC OnLine Pat. 1775}. At para-36 & 37 of the judgment, the following material observation was made:-

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“ 36 . Two functions are entrusted to the State Government under the N.I.A. Act. The 1^st is under Section 6(2) of the N.I.A. Act wherein it is placed under obligation to forward the report as to the information relating to any Scheduled Offence to the Central Government expeditiously, on being required under sub-section (1); the second is to create and constitute a Special Court under Section 22 of the Act. The mention of the State Government in Sections 7 & 10 is more to remind it, of its restricted role if the investigation of a particular “Scheduled Offence” is entrusted to the N.I.A. At the same time, as long as the investigation of a case is not entrusted to N.I.A., the powers of the State Government and its investigating agencies remains intact and the investigation and trial of such cases must be proceeded under the Cr.P.C. without any reference to the Act.

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37 . The interpretation placed in Aasif’s case (supra), particularly in Paragraph-44 of the Judgment, did not take note of another important provision. Section 6(3) mandates that within 15 days from the date of receipt of Report from the State Government, the Central Government is placed under obligation to determine (a) whether the offence is a Scheduled Offence or not; (b) whether, having regard to the gravity of the offence and other related factors, it is a fit case to be investigated by the N.I.A. Till this twin exercise is undertaken, the

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occasion for the N.I.A. to take up the investigation does not arise. Aasif’s case (supra) proceeds as though the State Government can take up the investigation under the N.I.A. Act, without or independent of exercise comparable to the one under sub-section (3). When the N.I.A. itself cannot investigate any matter unless entrusted to it by the Central Government, the question of any Investigating Agency in the State undertaking such investigation, without there being entrustment by the Central Government, does not arise. As pointed out earlier, the State Investigating Agency assumes power to investigate a Scheduled Offence in accordance with the procedure prescribed under the Act only when the N.I.A. transfers the investigations to it, that too, with the previous approval of the Central Government.”

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Finally, it was held that unless a case is transferred to the State Government by the National Investigating Agency, an Appeal preferred under Section 21 (4) of the Act, 2008 becomes not maintainable.

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12.Apart from that, in the matter of State of AP Vs. Mohd. Hussain {(2014) 1 SCC 258}, the Hon’ble Supreme Court at para-27.3 has categorically observed that where the NIA Act applies, the original application for bail shall lie only before the Special Court.

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13.On the basis of aforesaid discussion, this Court is of the opinion that since the impugned order has not been passed by the Special Court constituted under the Act, 2008, the present Appeal would not be maintainable and the same is dismissed as not maintainable.

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Sd/Sd/( Deepak Kumar Tiwari ) ( Ramesh Sinha ) Judge Chief Justice

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Barve

Ashok Mutu Bharat v. State of Chhattisgarh

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Ashok Mutu Bharat v. State of Chhattisgarh

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