Dismissed

Jasraj Singh v. U T of J and K Th Superintendent Central Jail Jammu and Another

J&K HC12 Dec 2023Bail App/314/2023

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC regarding offenses under NDPS and UAPA investigated by the NIA, the High Court held that it lacks jurisdiction because the NIA Act, 2008 exclusively channels bail applications to the Special Court and appeals to the Division Bench.

What did the court decide?

Application dismissed; petitioner directed to file statutory appeal before Division Bench expeditiously.

Jasraj Singh Vs U T of J and K Th Superintendent Central Jail… — Narcotics (NDPS) | J&K HC (2023)

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Sr. No. 49

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Case No.:- Bail App No. 314/2023

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Jasraj Singh aged 65 years S/o Late Inder Singh R/o Village Sai Kalan Tehsil Suchetgarh District Jammu.

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….Petitioner(s)

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Through :- Mr. Amjad Khan, Advocate.

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V/s

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Union Territory of Jammu and Kashmir through Superintendent Central Jail Kot Bhalwal, Jammu

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National Investigating Agency, Jammu.

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….Respondent(s)

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Through :- Mr. Vishal Sharma, DSGI with Mr. Sumant Sudan, Advocate for National Investigating Agency. Mr. Vipin Kalra, PP NIA. Ms. Nazia Fazal, Advocate vice Mrs. Monika Kohli, Sr. AAG for R-1.

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Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

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ORDER

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12.12.2023

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The petitioner is one of the accused persons who is undergoing trial in a criminal case registered vide no. RC05/2020/NIA/Jammu under sections 8/21/29/23/27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, „Act of 1985‟ ) and under sections 17/18/39/40 of the Unlawful Activities (Prevention) Act, 1967 (in short, „Act

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of 1967‟ ).

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The investigation of the case and presentation of final police report came to take place from the end of the National

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2 Bail App no. 314/2023

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Investigation Agency constituted under the National Investigation Act, 2008 (in short, „Act of 2008‟) as the investigation of the aforementioned offences was covered under the Act of 2008. The trial of the case is going on before the Court of Special Judge constituted under the Act of 2008 and that court being 3^rd Additional Sessions Judge, Jammu.

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On account of the fact that marriage of the son of the petitioner is scheduled from 11.12.2023 to 15.12.2023, the petitioner came to prefer an application for grant of short term bail before the trial court of Special Judge (3^rd Additional Sessions Judge) Jammu. This application came to be maintained on file no. B.A no. 34/2023 on 10.11.2023. The application failed to earn the indulgence of the trial court and stood dismissed as in the estimate of the trial court the petitioner failed to make a case for short term bail for the stated purpose. This order of rejection of bail application of the petitioner is dated 05.12.2023.

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After suffering rejection of his said bail application, the petitioner has approached this Court with an application seeking grant of bail for the same cause as was set up before the trial court below. The application is accompanied with the bail rejection order dated 05.12.2023 as well as the

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3 Bail App no. 314/2023

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wedding card with respect to forthcoming marriage of the petitioner’s son, namely, Chandanveer Singh.

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Mr. Vishal Sharma, learned DSGI has caused appearance on behalf of the respondent no. 2 and apprised this Court that the petition for bail so filed by the petitioner is not cognizable by this Court on the reference of section 439 of the Code of Criminal Procedure, 1973 (in short, „CrPC‟ ) as the legislative scheme of the Act of 2008 ousts the High Court to exercise bail granting jurisdiction under Section 439 of the CrPC. In support of this, Mr. Vishal Sharma, learned DSGI comes forward with a judgment of the Hon’ble Supreme Court of India in the case of “State of Andhra Pradesh through I.G

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National Investigation Agency Vs. Md. Hussain @ Saleem” reported in 2014(1) SCC 258.

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From a perusal of the factual position as dealt with by the Hon’ble Supreme Court of India in the judgment (supra) and the facts and circumstances of the present case, it is evident that both fall in an identical shade as in the case before the Hon’ble Supreme Court of India, the National Investigation Agency had carried out the investigation of the offences committed under Maharashtra Control of Organized Act, 1999 (in short, „Act of 1999 ’), Unlawful Activities (Prevention) Act of 1967, Explosive Substance Act, 1908, Indian Arms Act and the Indian Penal Code.

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4 Bail App no. 314/2023

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The Hon’ble Supreme Court of India came across with the case to come up with the pronouncement in the manner that the accused person in the said case was detained in connection with the investigation carried out by National Investigation Agency to whom the investigation of the case was entrusted by the Central Government in exercise of powers conferred by Section 6(5) of the Act of 2008. This case had number of accused persons and one of them approached the High Court of Bombay with a bail application filed under the provisions of Section 21(4) of the Act of 1999 and section 439 of the CrPC.

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While the said bail application was pending adjudication before the Single Bench of the Bombay High Court, an order dated 02.08.2013 in SLP (Criminal) nos. 7375 of 2012 and 9788 of 2012 came to be passed by the Hon’ble Supreme Court of India in terms whereof by reference to Section 21 of the Act of 2008, respective criminal matters including criminal bail application pending before the Single Bench was ordered to be transferred to the Division Bench of the Bombay High Court as well as Andhra Pradesh High Court.

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The order dated 02.08.2013 of the Hon’ble Supreme Court passed in the aforesaid SLPs (Criminal) was produced by the Prosecutor before the learned Single Judge of the Bombay

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High Court to oppose the maintainability of the bail application filed by the accused.

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Upon coming across with the said order dated 02.08.2013 of the Hon’ble Supreme Court of India, the accused approached the Hon’ble Supreme Court of India with an application for seeking clarification on the subject in the context of Section 21(2) of the Act of 2008 which resulted in the Hon’ble Supreme Court of India coming up with its verdict dated 13.09.2013.

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In this judgment, the Hon’ble Supreme Court of India came forward with a clear statement of legal position that a bail application under section 439 CrPC or even under section 482 CrPC cannot lie before the High Court as where the Act of 2008 applies an original application for bail is to lie only before the Special Court and that an appeal against an order of refusal or grant of bail is available to an aggrieved person to be heard before the Bench of two judges of the High Court.

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As in the present case, the implication of the petitioner as an accused in the case has taken place by reference to the Act of 1967 along with offences under the Act of 1985 as such, the National Investigating Agency acting under the Act of 2008 came to take cognizance of the matter given the fact that the offences under the Act of 1967 fall under scheduled

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6 Bail App no. 314/2023

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offences in terms of Section 21(f) of the Act of 2008. Therefore, in the face of application of the Act of 2008, the provisions of Section 43(D) of the Act of 1967 are to be read as modifying the Code of Criminal Procedure by excluding the scope for exercise of special powers of High Court or that of Court of Sessions regarding bail as envisaged under section 439 CrPC.

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Mr. Vishal Sharma, learned DSGI is right in his submission that Code of Criminal Procedure, 1973 has recognized special power regarding bail with respect to High Court as well as to the Court of Sessions and as such High Court cannot stand on a better or higher pedestal in terms of a special power of granting bail comparable to the Court of Sessions under the scheme of Section 439 of the Code of Criminal Procedure, 1973. Mr. Vishal Sharma, learned DSGI submits that it cannot be allowed to be read that by recourse to section 439 CrPC, jurisdiction to entertain bail application of the person is available with this court with respect to NIA investigated and prosecuted cases under the Act of 2008, as then on the same parity a Court of Sessions can also be said to be having the jurisdiction to entertain and deal with the bail application of an accused who otherwise is suffering custody for trial of scheduled offence by reference to operation of the Act of 2008.

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7 Bail App no. 314/2023

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The plea of Mr. Vishal Sharma, learned DSGI is very apt and brings out a clarity that section 439 CrPC is not available to an accused who is subject to trial under the Act of 2008 and, therefore, the only option as a matter of constitutional safety for an aggrieved person, who is willing to earn bail in connection with the case for which he or she has been booked, is to approach the Special Court and in the event of refusal or grant of bail then to avail the remedy of appeal as provided under section 21(4) of the Act of 2008 which appeal is maintainable before the Division Bench in terms of Section 21(2) of the Act of 2008.

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The time frame and the expediency within which the appeal is to be preferred and disposed of is a safeguard which has been set out in the Act of 2008, and therefore, even if an independent recourse to section 439 CrPC has been taken away as a legal option for an accused undergoing trial under the Act of 2008 but simultaneous expediency in dealing with matter pertaining to grant or non-grant of bail has been provided under the legislative scheme of Act of 2008 and, therefore, causes no prejudice to the right of the accused person to seek indulgence either of the Special Court or for that matter of the Division Bench of the High Court for the purpose of seeking bail on any given contingency as is

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pleaded in the present case which is projected to be in context of forthcoming marriage of the son of the petitioner.

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In view of the aforesaid, it is, therefore, held that this Bench has no jurisdiction to entertain the bail application of the petitioner, as after having suffered rejection of the bail, the petitioner is entitled to prefer a statutory appeal before the Division Bench of this Court.

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Learned counsel for the petitioner submits that time is of the essence in this matter as such, in order to save the petitioner suffering prejudice on account of loss of precious time, a direction be given to the Superintendent, Central Jail, Kote Bhalwal, Jammu that as soon as memo of appeal which is proposed to be filed by the petitioner against bail rejection order is submitted for signature of the petitioner, the same shall be immediately got signed and delivered to the relatives of the petitioner for enabling filing of the appeal before the Division Bench of this Court at the earliest.

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Ordered accordingly.

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Application stands disposed of accordingly.

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(RAHUL BHARTI) JUDGE

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JAMMU 12.12.2023 NARESH/Secy.

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Whether the order is speaking: Yes

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Whether the order is reportable: Yes

Jasraj Singh v. U T of J and K Th Superintendent Central Jail Jammu and Another

Case brief

What is this about?

What did the court decide?

Jasraj Singh v. U T of J and K Th Superintendent Central Jail Jammu and Another

Case brief

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What did the court decide?

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