UAPA | Only Special Court/Session Court Empowered To Decide Bail Applications, Judicial Magistrate Has No Jurisdiction: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently held that only the Special Court or in the absence of a Special Court, a Sessions Court exercising powers of a Special Court, can entertain and grant/refuse bail to a person accused of an offence under the provisions of Unlawful Activities Prevention Act. It held that a Judicial Magistrate has neither the jurisdiction to take cognizance of offences under the said Act nor he is vested with jurisdiction to try such offences or grant/refuse bail. The bench of Justice Sanjay Dhar was hearing a plea wherein the petitioner-State had challenged an order passed by Chief Judicial Magistrate, admitting the respondent to bail for offences under Section 13, 18 and 19 of ULA(P) Act. The petitioners in their plea impugned the order of grant of bail to the respondent on the ground that the learned Chief Judicial Magistrate did not have jurisdiction to pass the impugned order because it is only a Special Court designated under National Investigation Agency Act, 2008 which has jurisdiction to grant or refuse bail in a Scheduled offence. Contesting the plea the respondents countered by submitting that at the relevant time no Special Courts were designated in terms of the provisions of NIA Act and that offences under ULA(P) Act were triable by ordinary Sessions Courts and, as such, the Chief Judicial Magistrate was having jurisdiction to entertain and decide the bail application even in cases relating to offences under ULA(P) Act. Adjudicating upon the matter in controversy the bench observed that sec 22 of the NIA Act is clear that the State Government has power to designate one or more Courts of Session as Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act and since on date of passing of the impugned order, the Government of Jammu and Kashmir had not designated any Special Court in the erstwhile State of Jammu and Kashmir, sub-section (3) of Section 22 takes care of a situation by prescribing that until a Special Court is constituted by the State Government, such powers be exercised by the Court of Session of the division in which such offence has been committed. The bench further observed that Section 13 of the Act makes it amply clear that a Scheduled offence investigated by National Investigation Agency is to be tried only by a Special Court within whose local jurisdiction it was committed and Section 16 provides that a Special Court is empowered to take cognizance of an offence without the accused being committed to it for trial. Deliberating further on the subject the bench observed that under Section 2(1)(d) of the ULA(P) Act defines the "Court" to mean a criminal court having jurisdiction, under the Code, to try offences under the said Act and includes a Special Court constituted under Section 11 or under Section 21 of the NIA Act. So, the expression "Court" appearing in any provision of the ULA(P) Act, after the coming into force of NIA Act, means the Special Court constituted under the NIA Act, the bench underscored. The bench did not find found it legally tenable as to how the Chief Judicial Magistrate had without noticing the aforesaid provisions of the two legislations, relied upon the provisions contained in sections 6 and 7 of the NIA Act and observed that because National Investigation Agency has not taken up the investigation of the case and the same has been conducted by the State Police, as such, he has jurisdiction to entertain the bail application. "The approach adopted by the learned Magistrate is palpably wrong and contrary to law, inasmuch as he has ignored the provisions contained in Section 22(2)(ii) of the NIA Act, which clearly provides that reference to "Agency" in sub-section (1) of Section 13 shall be construed as a reference to the "investigation agency of the State Government", the bench recorded. Allowing the petition the court set aside the impugned order passed by the Chief Judicial Magistrate, Bandipora. The respondent is directed to surrender before the Special Court where he is stated to be facing trial and apply for fresh bail, the bench concluded.Also Read: All UAPA Offences Investigated By NIA Or State Police Are Exclusively Triable By 'Special Courts': SC Case Title: State of J&K through P/S Bandipora Vs Hilal Ahmad Parray. Citation: 2022 LiveLaw (JKL) 77 Click Here To Read/Download Judgment

UAPA | Only Special Court/Session Court Empowered To Decide Bail Applications, Judicial Magistrate Has No Jurisdiction: J&K&L High Court

Basit Amin Makhdoomi

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