[Bhima Koregaon] If Court is not empowered to take cognizance, does not mean proceedings can be set aside: NIA to Bombay High Court

Merely because a court is not empowered by law to take cognizance and yet does so in good faith does not mean that the proceedings should be set aside on that ground alone, the National Investigation Agency (NIA) submitted submitted before the Bombay High Court in the Bhima Koregaon case.

. An affidavit stating the same was filed before the High Court in the petition filed by eight accused in the Bhima Koregaon case challenging the order refusing bail.

The petitioners - Sudhir Dhawale, Rona Wilson, Surendra Gadling, Shoma Sen, Mahesh Raut, P Varavara Rao, Vernon Gonsalves and Arun Ferreira - sought bail on the ground that the Special Judge of Pune KD Vadane who took cognisance of the chargesheet against them and issued process did not have jurisdiction to do so.

. The NIA in its affidavit placed reliance on Section 460 of the Code of Criminal Procedure to claim that even if a magistrate is not empowered by law to take cognizance of an offence under and yet erroneously does so in good faith, the proceedings before him shall not be set aside merely on that ground.

. The central agency further contended that Special Courts constituted under the NIA Act could only deal with offences if they are scheduled under the Act and if the case involving the scheduled offence was being investigated by the NIA.

In the present case, even if the offences were of the Unlawful Activities (Prevention) Act, since NIA did not take over the investigation till January of 2020, the question of a Special NIA Court hearing the matter did not arise.

. However, it was stated that since Special Judge had been constituted at Pune and the fact that offences under UAPA were applied before the petitioners were arrested, the Special Judge had power to not only remand the accused to custody but also extend time for the agency to file chargesheet.

Hence, the question of default bail cannot arise at all.

. Citing Section 10 of the NIA Act, the affidavit stated that the State government was empowered to investigate into scheduled offences till the NIA took over.

In the present case, till the time NIA took over the case, the proceedings before the Special Judge Pune was maintainable.

. The other preliminary objection raised in the affidavit are:

That since the accused were all arrested at different times and accused for having committed different acts, filing a common petition for quashing under Section 482 of the Code of Criminal Procedure would not be maintainable.

That the application for default bail was filed after the chargesheet was filed, and hence the order rejecting the application was correct.

That after extension of time to file chargesheet by 90 days, the same had been filed by NIA within the extended time period.

[Bhima Koregaon] If Court is not empowered to take cognizance, does not mean proceedings can be set aside: NIA to Bombay High Court

Neha Joshi

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