NIA Act | Does S.21 Include Approver's Bail, Is Rejection Of Bail Appealable Before HC? : Telangana High Court Refers Questions To Larger Bench

A single judge of the Telangana High Court has referred a matter to the Chief Justice, to determine whether when a bail application is rejected by a special court under the National Investigation Agency Act, 2008, can the applicant approach the high court under section 482 of the Code of Criminal Procedure, 1973 or does he have to file an appeal against the order of the special court as stipulated under section 21 of the NIA Act.

Justice K. Surender has referred the matter before the Chief Justice after not agreeing with the reasoning put forward by the Division Bench of Justice K. Lakshman and Justice K. Sujana holding that an applicant can apply for bail under section 482 of the CrPc and that the High Court can grant bail under the said provision in extremely rare cases.

"I am bound by the orders of the Division Bench. However, for the reasons mentioned above, I am not inclined to entertain the bail application since issues/ arise for consideration before entertaining the bail petition." Justice Surender noted before referring the matter to the Chief.

The petitioner who was an accused turned approver, applied for bail under 439 of the CrPC after being granted pardon before the Special Court for NIA Cases in August 2023. The Special Court held that since the petitioner was no longer an accused, he could not avail the relief of bail prescribed under CrPC. Further, it was held that for any relief, the petitioner would have to invoke the inherent power and approach the High Court under section 482 of the CrPc.

The petitioner approached the High Court under section 482 and the registry took objection to filing the the petition, stating that an appeal is to be preferred against the orders of the Special Court as prescribed under section 21 of the NIA Act.

The petitioner's advocate, T. Sharath was compelled to make a representation before the roster bench, explaining that the petitioner was not an accused but an approver and hence could not prefer an appeal as prescribed under section 21.

Justice K. Surender had relied on the judgment passed by the Apex Court in State of Andhra Pradesh vs. MD Hussain @ Saleem and directed the registry to post the matter before a division bench in consonance with the NIA Act.

On 23rd November, the Division Bench of Justice K. Lakshman and Justice K Sujana held that in extremely rare cases, the High Court can entertain bail applications under 482 of the CrPC.

The Division Bench relied on Delhi Administration vs. Jagdeesh to hold that once an accused is given a pardon, he ceases to be an accused and becomes a prosecution witness instead.

The Bench further clarified that although it may have been previously misunderstood that an accused needs to be kept in a safe lock up until the end of the trial, the Supreme Court in Suresh Candra Bahri vs. State of Bihar has held that the release of the Approver on bail by the High Court, will not affect the validity of the pardon granted to the approver in any way.

The Court also noted that although there was no provision for the approver to get bail, he cannot be left remediless and relied on the Suresh Chandra order to conclude that the reason for locking up the approver is not punitive, but to protect the approver from resentment of his association to crime.

The Division Bench concluded by saying: "Section 482 of Cr.P.C. deals with inherent powers of High Court and it nothing in the Code shall be deemed to be limited or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Therefore, the High Court is having power to grant bail to the petitioner under certain exceptional circumstances in exercise of its power Section 482."

The Division Bench concurred with the view taken by various high courts wherein it was held that the only remedy for bail to the approver is under section 482 and not under section 21 of the NIA Act since he is no longer an accused.

Lastly, the bench held that the Saleem case does not dwell on the aspect of bail being granted to an approver and directed that the petition be placed before the single judge bench for reconsideration.

Upon this, the matter was once more placed before Justice K. Surender who held:

"the present application seeking bail can only be heard by a Division Bench. I am of the firm opinion that Single Bench cannot entertain the present application."

Justice Surender noted that section 21 of the NIA Act starts with a non-obstante clause that restricts the applicability of CrPC in any order, sentence or judgment passed by the Special Courts.

Further, Justice Surender noted that section 21 is not restrictive and stipulates that an appeal lies against 'any' order, judgment or sentence passed by the Special Court that is not an interlocutory order.

"The word 'accused' is not used in Section 21 of the NIA Act which the Legislation was conscious and intended to cover every judgment', 'sentence' or 'order' without classification and includes 'everyone' and not only an accused. The word 'accused' is not used in Section 21 of NIA Act, unlike Sections 437 & 439 of Cr.P.C, which provisions are for bail, specifically mention 'accused'," it held.

The Single Bench was also adamant that the various judgements of various High Courts that were considered by the Division Bench while passing the order did not consider the findings of the Supreme Court in Saleem's case.

Adding to that, it was stated that the Suresh Chandra judgment the Division Bench had so heavily relied upon, does not take into consideration the National Investigation Agency.

The Single Judge Bench was vehement that the Saleem judgment applies thoroughly to the present case; as the judgment emphasizes that 'anybody' who is aggrieved by the order of the Special Court can prefer an appeal under section 21.

While referring the matter to the Chief Justice the issues raised were:

(i) Whether the division bench can endure views of various High Court without considering the principle laid down in the Saleem case?

(ii) Will Section 21 not include an approver's bail?

(iii) Is rejection of bail not appealable under section 21?

CrLP 11098 of 2023

Counsel for petitioner: T. Sharath

Counsel for Respondents: Vishnu Vardhan Reddy.

Click Here To Read/Download Judgment (Majority Opinion)

Click Here To Read/Download Judgment (Dissenting Opinion)