Dismissed

Soyna Singh Sardar v. the State of Jharkhand

Jharkhand HC4 Feb 2021B.A./4/2021

Case brief

AI extract

What is this about?

The High Court of Jharkhand rejected a bail petition filed under Section 439 CrPC as not maintainable. The court held that under the National Investigation Agency Act, 2008, an appeal for bail lies only from the Special Court order, making a direct High Court petition premature without a Special Court order.

What did the court decide?

The petition for bail under Section 439 of the Code of Criminal Procedure is rejected as not maintainable.

Soyna Singh Sardar Vs the State of Jharkhand — Bail and Remand | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No. 04 of 2021

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Soyna Singh Sardar … Petitioner Versus The State of Jharkhand … Opposite Party

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CORAM:HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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For the Petitioner : Mr. R.C.P. Sah, Advocate For the N.I.A. : Mr. R.R. Prasad, Advocate

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------

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Order No.02 Dated- 04.02.2021

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Heard the parties through video conferencing.

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Learned counsel for the petitioner submits that this petition has been filed with a prayer for grant of bail in exercise of power under Section 439 of Code of Criminal Procedure.

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Learned counsel for National Investigating Agency raised preliminary objection regarding maintainability of the petitioner under section 439 of the Code of Criminal Procedure.

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It is submitted by Mr. Rohit Ranjan Prasad, the learned counsel for National Investigation Agency that the offences involved in this case is that the petitioner being an armed cadre of CPI (Maoist) has committed the gruesome act of killing of five police personnel of Jharkhand Police and committed offences punishable under Sections 147/148/149/302/353/379/435 of Indian Penal Code as also under Section 27 of Arms Act and under Section 17 of Criminal Law Amendment Act as well as under Section 13 of Unlawful Activity Prevention Act, in connection of which Tiruldih P.S. Case No.16 of 2019 has been registered which is covered under the scheduled offences as mentioned in the Schedule of National Investigation Agency Act, 2008 and the Central Government, Ministry of Home Affairs in exercise of power under Section 6 (5) of National Investigation Agency Act, 2008 directed the National Investigation Agency to re-register the case and accordingly in compliance of the order of Ministry of Home Affairs, Government of India, National Investigation Agency formally re-registered the case at N.I.A. Delhi vide N.I.A. Case No.R.C.-39/2020/NIA/DLI and corresponding

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number assigned to the case by the Special Judge constituted under the N.I.A. Act for the State of Jharkhand has assigned Special N.I.A. Case No.04 of 2020 to the case.

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It is next submitted by the learned counsel of the National Investigation Agency that Section 21 (4) of National Investigating Agency Act, 2008 which reads as under:-

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“ 21. Appeals.—

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(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.”

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envisages that the an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail in exercise of its power under Section 437 of Code of Criminal Procedure. Relying upon the judgment of Hon’ble Supreme Court of India in the case of State of Gujarat v. Salimbhai Abdulgaffar Shaikh & Ors. reported in (2003) 8 SCC 50 which is a judgment in connection of the issue involved in the instant case before this court but relating to Section 34 (4) of Prevention of Terrorism Act, which is a pari materia provision as that of section 21 (4) National Investigating Agency Act 2008 and which reads as under

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34. Appeal.—

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Xxxxxxxxxxxxxxxxx

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(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

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Hon’ble Supreme Court of India in paragraph no.11 of that case observed as under:-

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“11 . Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court, and in view of the express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under subsection (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is, therefore, evident that the provisions of POTA are in clear contradistinction with that of the Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order

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of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court.” (Emphasis supplied)

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It is also submitted by learned counsel for National Investigation Agency that as the Hon’ble Supreme Court has held that existence of an order of the Special Court is sine qua non for approaching the High Court and in this case as a Special Court constituted under the National Investigation Agency Act, 2008 has not been approached by the petitioner nor any order of said special court exists in respect of refusing bail. Hence, it is submitted that the petition under Section 439 of Code of Criminal Procedure is not maintainable.

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In support of his contention, Mr. Rohit Ranjan Prasad, learned counsel for National Investigation Agency also relied upon the judgment of Hon’ble Andhra Pradesh High Court in the case of National Investigation Agency vs. Mohmed Anwar Shak& Anr. reported in 2012 SCC Online AP 441 .

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Mr. Ram Chandra Prasad Sah, learned counsel for the petitioner submits that jurisdiction of Section 439 of Code of Criminal Procedure is not barred by the provision of National Investigation Agency Act, 2008 hence, this petition for grant of bail under Section 439 of Code of Criminal Procedure is maintainable.

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Having heard the submissions made at the Bar and after going through the materials in record, it is pertinent to mention here that in pari-materia provision to that of Section 21 (4) of National Investigation Agency Act, 2008 which exist in Section 34 (4) of Prevention of Terrorism Act, 2002, the Hon’ble Supreme Court in no uncertain manner has settled the principle of law that existence of an order of the Special Court is sine qua non for approaching the High Court.

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In view of the settled principle of law as mentioned above and the facts of this case, this Court is of the considered view that the application under Section 439 of Code of Criminal Procedure when undisputedly the Special Act constituted under the National Investigation Agency Act, 2008 is in seisin of the case concerned, hence in the absence of any order of granting or refusing bail, to the

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petitioner By the Special Court constituted under the National Investigation Agency Act, 2008, this application filed under section 439 of the Code of Criminal Procedure is not maintainable.

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Accordingly, this petition is rejected being not maintainable.

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(Anil Kumar Choudhary, J . )

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AFR-Sonu-Gunjan/

Soyna Singh Sardar v. the State of Jharkhand

Case brief

What is this about?

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Soyna Singh Sardar v. the State of Jharkhand

Case brief

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