AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the parties.
Rule.
Rule is made returnable, forthwith with the consent
of the parties and is taken up for final disposal.
By this petition, the petitioner has impugned the
order dated 23.12.2015 passed by the learned Judicial
Magistrate First Class, 6 th Court, Nagpur, by which the
petitioner''s remand was extended beyond 90 days, on an
Application preferred by the Investigating Agency; the order
dated 15.01.2016, by which the Petitioner''s Application seeking
statutory bail under Section 167(2) of Cr.P.C. was rejected; as
well as the common Judgment and Order dated 15.12.2016
passed by the learned Additional Sessions Judge, Akola
dismissing Criminal Revision No. 154 of 2016 (filed by the
petitioner against the order of the learned Magistrate extending
remand of the petitioner beyond period of 90 days), and
Criminal Revision No.155/2016 (filed by the petitioner against
the order of the learned Magistrate rejecting the Petitioner''s
Application for statutory bail under Section 167(2) of Cr.P.C.).
Mr. T.W. Pathan, learned counsel for the petitioner
submitted that the term ''Court'' defined in Section 2(d) of the
Unlawful Activities (Prevention) Act, 1967 means a Court of
Sessions and not the Magisterial Court. He submitted that the
Unlawful Activities (Prevention) Act, 1967 (hereinafter for the
sake of brevity referred to as ''the UAPA'') being a Special Act,
the same would have an overriding effect, over the provisions
of Cr.P.C . According to the learned counsel, even the circulars
relied upon by the respondent-State will not apply to the
present case, inasmuch as, the circulars cannot override the
provisions of the U.A.P.A., being a special statute. Learned
counsel further relied on Section 43D(2)(b) of the U.A.P.A. in
support of his submission. According to the learned counsel,
the term ''Court'' would mean a Court having jurisdiction to try
the case and in the present case, it would necessarily be the
Court of Sessions. According to Mr. Pathan, although initially,
provisions of the Indian Penal Code were applied, later, i.e. on
01.10.2015, when U.A.P.A. was applied, it was incumbent on
the learned Magistrate to commit the said case to the Court of
Sessions for further remand, in view of the provisions of the
UAPA. He submitted that the order dated 23.12.2015 passed
by the learned Magistrate extending remand beyond 90 days,
on an Application preferred by the Investigating Agency i. e.
ATS was clearly without jurisdiction and hence, illegal. Under
these circumstances, learned counsel prayed that the impugned
orders be quashed and set aside and the petitioner be granted
statutory bail under Section 167(2) of Cr.P.C. It may be
mentioned here, that the learned counsel for the Petitioner
during the course of arguments, did not press the submission,
that U.A.P.A., being a scheduled offence under the N.I.A. Act,
the remand should have gone before the Special Court
designated under the NIA Act (under Sections 11 & 12 of the
NIA Act).
Mr. P. K. Sathianathan, learned Special Prosecutor
opposed the petition. He submitted that no interference was
warranted in the impugned orders dated 23.12.2015 extending
the Magisterial Custody Remand of the petitioner beyond the
period of 90 days and the Order dated 15.12.2016 (rejection of
the petitioner''s application for statutory bail under Section
167(2) of Cr.P.C.). Learned Special Prosecutor also relied on
the Government of Maharashtra Notifications dated 29.08.2008
and 26.08.2016 in support of his submissions to show, that by
the said notifications, the learned Magistrate had jurisdiction
and was competent to extend the Magisterial Custody Remand
of the petitioner beyond the period of 90 days.
Perused the papers. The petitioner came to be
arrested in connection with C.R. No.318/2015 registered with
Pusad Police Station for the alleged offences punishable under
Sections 307, 332, 333, 153, 353, 186 of I.P.C.; Sections 4 and
25 of Arms Act; and Section 135 of Bombay Police Act. The
aforesaid C. R. was registered on 25.09.2015 and the petitioner
was also arrested on the very same day. On 01.10.2015,
investigation came to be transferred from the Pusad Police
Station to A.T.S. and U.A.P.A. came to be invoked.
Accordingly, the aforesaid CR was re-numbered as CR
No.13/2015 (with the Kalachowky Police Station). On
23.12.2015, the A.T.S. filed an application under Section 43(D)
(2) of the U.A.P.A. and sought extension of time to file charge-
sheet beyond the period of 90 days. Before extension was
granted, the learned Magistrate served notice on the Petitioner
and others & they were heard through Video Conferencing.
The remand Court had noted, that the Advocate for the accused
was absent when called. The said application was allowed and
the learned Magistrate vide Order dated 23.12.2015 was
pleased to extend remand beyond 90 days i. e. upto 20.01.2016.
On 14.01.2016, the petitioner filed an application and sought
statutory bail under Section 167(2) of Cr.P.C., as the
prosecution had failed to file charge-sheet within 90 days. The
said application seeking bail under Section 167(2) of Cr.P.C.
was filed by the petitioner in the Court of learned Judicial
Magistrate First Class, 6 th Court, Nagpur. The learned
Magistrate rejected the said application vide order dated
15.01.2016. Being aggrieved by the said order dated
15.01.2016 rejecting the petitioner''s application for grant of
statutory bail under Section 167(2) of Cr.P.C. as well as being
aggrieved by the order dated 23.12.2015 by which the learned
Magistrate was pleased to extend remand beyond 90 days, the
petitioner preferred two revision applications, being Criminal
Revision Nos.154/2016 (against the order of extension of time
to file charge-sheet beyond 90 days) and 155/2016 (against the
order rejecting the statutory bail application of the petitioner),
in the Court of Sessions.
On 18.01.2016 i. e. within the extended time, the
A.T.S. filed charge-sheet in the Court of Judicial Magistrate
First Class, 6th Court, Nagpur and on 20.01.2016, the learned
Magistrate committed the case to the Court of Sessions, at
Nagpur. Subsequently, in view of the Government Notification
dated 26.08.2016, the case was transferred to the Sessions
Court, at Akola, in view of the change in jurisdiction.
At the cost of repetition, the relevant dates are
again re-produced;
23.12.2015 - The prosecution moved an Application
seeking extension of 60 days custody (beyond the period of 90
days) and the learned Magistrate was pleased to extend the
magisterial custody remand upto 20.01.2016.
14.01.2016 - The Petitioner filed an Application
and sought statutory bail under Section 167(2) of Cr.P.C..
15.01.2016 - The learned Magistrate was pleased to
reject the said Application.
18.01.2016 - ATS filed charge-sheet in the Court
of the learned Magistrate, 6th Court, Nagpur.
20.01.2016 - Learned Magistrate committed the
case to the Court of Sessions, Nagpur in terms of the
Notification.
It is pertinent to note, that the investigation in the
said case was initially registered with the Pusad Police Station
and thereafter, transferred to the ATS and not to the NIA,
constituted under the National Investigation Agency Act and
hence, there is no question of application of the NIA Act in the
facts. It is also pertinent to note, that offences under the UAPA
can be registered at any police station and that it is not
necessary that every offence under the UAPA is required to be
investigated only by the NIA under the NIA Act.
Section 43-D(2)(a) of the UAPA Act provides for
modification in the period of custody and extension of the
period of custody for filing the charge-sheet. Pursuant to the
said provision, the Special Public Prosecutor preferred an
Application, after being satisfied about the grounds raised by
the investigating officer, seeking extension of the period of
remand for filing of the charge-sheet by further 60 days. The
learned Magistrate on receipt of this Application, gave notice to
the Petitioner and other accused and after hearing them through
the Video Conferencing passed the Order dated 23.12.2015, by
which the period of remand was extended beyond 90 days i. e.
upto 20.01.2016. It may be noted, that there is no challenge to
the satisfaction recorded by the learned Magistrate extending
the period of remand & hence, it is not necessary to go into the
same. The only challenge is to the jurisdiction of the learned
Magistrate to extend the remand beyond 90 days, as the ATS
had applied UAPA to the said case, by the ATS, on 23.12.2015.
Section 2(1)(d) of the UAPA defines "Court" as
under :-
" ''Court'' means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008."
It is, thus, evident that the definition makes a
reference to a Criminal Court having jurisdiction under the
Code, to try offences under the UAPA i. e. in the present case,
the Sessions Court, includes a Special Court constituted under
the NIA Act. It is pertinent to note, that the Government of
Maharashtra in exercise of powers conferred to it by section 11
r/w 185 of the Cr. P. C. issued a Notification dated 29.08.2008,
after receiving the consent of this Court, and designated the
Judicial Magistrate First Class, Court No. 6, Nagpur as the
remand Court, for cases filed by ATS. In view of the
Notifications dated 29.08.2008 & 26.08.2016, specific
Magisrate Courts and Sessions Courts all over Maharashtra,
were specifically designated for dealing with remand and trial
of cases filed by the ATS i. e. Anti Terrorist Squad. Vide the
said Notifications, the State Government designated the learned
Judicial Magistrate First Class, Court No. 6, Nagpur as a Court
to attend the remands and the learned Sessions Judge, Nagpur
to conduct the trial of cases filed by ATS, in all the districts
covered under the Nagpur and Amravati division. By a
subsequent Notification, the Sessions Court, at Nagpur was
changed to Sessions Court, at Amravati. It is pertinent to note,
that there is no challenge to the Notifications dated 29.08.2008
& 26.08.2016 and hence the same is not gone into. The only
submission is that the said Notifications are not binding. As per
the Notifications, the Magistrate Court i. e. the learned Judicial
Magistrate First Class, Court No. 6, Nagpur was empowered to
deal with the remand of cases filed by the ATS and as such, no
infirmity can be found in the said Order dated 23.12.2015
passed by the learned Judicial Magistrate First Class, Court No.
6, Nagpur, extending the period of remand beyond 90 days.
Since I have come to the conclusion that the learned Magistrate
had jurisdiction to extend the remand beyond 90 days, the
second question of granting statutory bail under Section 167(2)
of the Cr.P.C. does not arise.
Accordingly, Petition is dismissed.
Rule is discharged.