Dismissed

Lughur Tiwari Alias Brij Kishore Tiwari v. the State of Jharkhand

Jharkhand HC8 Sept 2023B.A./5246/2023

Case brief

AI extract

What is this about?

A Full Bench in a prior judgment held that scheduled offences under the NIA Act must be tried exclusively by Special Courts. Relying on this, the Court held that the bail application was not maintainable. The High Court directed the Registry to place the matter before the Chief Justice to formulate necessary rules under Section 23 of the NIA Act.

What did the court decide?

Registry to place the matter before the Chief Justice to consider making necessary rules for carrying out provisions of NIA Act, 2008.

Lughur Tiwari Alias Brij Kishore Tiwari Vs the State of… — Bail and Remand | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No.5246 of 2023

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Lughur Tiwari @ Brij Kishore Tiwari .... .... …. Petitioner Versus

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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. Abhishek Kumar, Advocate For the State : Mr. Rajendra R. R. Das, Addl.P.P ------

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Order No.04 Dated- 08/09/2023

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Heard the parties.

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The record is put up today as an objection has been raised by the Stamp Reporter that an appeal will lie in terms of Section 21 of the National Investigation Agency Act, 2008; as one of the offences involved in this case being under Section 25 (1-AA) of the Arms Act is a schedule offence of the National Investigation Agency Act, 2008. It is pertinent to mention here that a Full Bench of this Court vide order dated 16.12.2022 in B.A. No.5937 of 2022 keeping in view the observations made by the Hon’ble Supreme Court of India in the case of Bikramjit Singh vs. State of Punjab reported in (2020) 10 SCC 616 held as under in paragraphs-24, 25 and 26:-

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“24. Section 13(1) of the NIA Act, which again begins with a nonobstante clause which is notwithstanding anything contained in the Code, read with Section 22(2)(ii), states that every scheduled offence that is investigated by the investigation agency of the State Government is to be tried exclusively by the Special Court within whose local jurisdiction it was committed.

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25. When these provisions are read along with Section 2(1)(d) and the provisos in 43-D(2) of the UAPA, the Scheme of the two Acts, which are to be read together, becomes crystal clear. Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. “The Court”, when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a

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reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts. What is equally clear from a reading of Section 16(2) of the NIA Act is that even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence – albeit in a summary way if it thinks it fit to do so. On a conspectus of the abovementioned provisions, Section 13 read with Section 22(2)(ii) of the NIA Act, in particular, the argument of the learned counsel appearing on behalf of the State of Punjab based on Section 10 of the said Act has no legs to stand on since the Special Court has exclusive jurisdiction over every Scheduled Offence investigated by the investigating agency of the State.

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26. Before the NIA Act was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions. This Scheme has been completely done away with by the 2008 Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone. xxxxX”

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(Emphasis Supplied)

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has held that the such application is to be heard by a Division Bench under Section 21 of the National Investigation Agency Act, 2008.

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Therefore, this Bail Application filed under Section 439 of the Code of Criminal Procedure is not maintainable. Hence, this Bail Application is dismissed being not maintainable.

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Before parting it is pertinent to mention here that Section 23 of the National Investigation Agency Act, 2008 reads as under:-

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“23. Power of High Courts to make rules .—The High Court may, by notification in the Official Gazette, make such rules, as it may deem necessary for carrying out the provisions of this Act relating to Special Courts within its territory.”

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envisages that the High Court may make rules for carrying out the provisions of National Investigation Agency Act, 2008.

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In view of the judgment of the Full Bench of this Court in B.A.

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No.5937 of 2022 since it has been held that the case in which any of the offence as mentioned in the schedule of the National Investigation Agency Act, 2008 is involved, it is to be tried by the Special Court either established under Section 11 or under Section 22 of the National Investigation Agency Act, 2008 but in the absence of any rule made by the High Court still the courts other than the special courts are taking cognizance and even conducting the trial of the cases involving the offences mentioned in the schedule of the National Investigation Agency Act, 2008. Hence, necessary rule is required to be made by the High Court.

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Therefore, Registry is directed to place the matter before the Hon’ble the Chief Justice to consider making necessary rules for carrying out the provisions of National Investigation Agency Act, 2008.

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(Anil Kumar Choudhary, J . )

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Animesh/

Lughur Tiwari Alias Brij Kishore Tiwari v. the State of Jharkhand

Case brief

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Lughur Tiwari Alias Brij Kishore Tiwari v. the State of Jharkhand

Case brief

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