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The Chhattisgarh High Court has admitted a PIL challenging the indiscriminate transfer of UAPA and other scheduled offences to a single Special NIA Court at Bastar, Jagdalpur, regardless of whether such cases have been actually entrusted with the National Investigation Agency (NIA) or not (Hari Degal v. State of Chhattisgarh).
In particular, the petitioner Hari Degal challenges a 2015 state government notification that has directed the transfer of such cases, even if they are being handled by state investigation authorities.
The case is being considered by a Bench of Chief Justice PR Ramachandra Menon and Justice Parth Prateem Sahu, which has listed the matter for further consideration on March 20.
Degal has raised grievance that the access to justice is hindered when a single NIA Court is burdened in this manner with all such cases, particularly when the NIA is not actually handling the matter. The same entails a violation of Article 14 and 21 of the Constitution, argues the petition filed through Advocate Shikha Pandey.
It has been submitted that the Special NIA Court should only handle cases where the NIA is handling the investigation. Other cases involving scheduled offences that have not been taken over by the NIA, but which are being handled by the state, should be tried by other jurisdictional courts, it is submitted.
Notably, Degal relies on Sections 6 and 7 of the NIA Act to argue that the state government did not have the legislative competence to direct that the trial of all offences scheduled in the Act should be tried by the Special NIA Court.
Sections 6 and 7 lay down the manner in which scheduled cases may be transferred to the NIA, with the approval of the Central government.
If the NIA does not take up the investigation of such cases, the state investigation continues to handle the case, which could then be tried by regular criminal courts. This position has found support in the Patna High Court decision in Bahadur Kora and Ors. v. The State of Bihar. Allied observations were made by the Rajasthan High Court in Jagdish Singh v. State of Rajasthan, wherein the NIA itself has supported this stance.
While this is the case, Degal has argued that the indiscriminate transfer of all “scheduled offences” cases to a single NIA Court, leading to an increase in its workload, violates the access to speedy justice.
“Due to the sheer volume of the cases registered under the Scheduled Offences under the NIA Act in Bastar division, the transfer of cases from the court in situ to one designated NIA Special Court violates the access to speedy justice by increasing the volume of cases in one court. Therefore, the said transfer of the cases emanating from the impugned notification not only violates the right of the accused for free, fair and speedy trial under Article 21 and but also right to equality before law as well as equal protection of laws under Article 14 of the Constitution of India.”
PIL in Chhattisgarh HC
Practically speaking, the petitioner points out that the brunt of the notification is faced by the accused and their family. A number of scheduled offence cases are registered against persons from locations far away from the place where the NIA Court is situated.
Particularly, petition highlights that the 2015 notification entails hardships for persons accused of such cases from seven conflict-inflicted administrative districts i.e. Kanker, Kondagaon, Narayanpur, Bastar, Dantewada, Sukma and Bijapur, all of which are located approximately 100-200 kms away from the Special NIA Court. Of the seven, Dantewada is the closest to the Jagdalpur NIA Court, at 88 kms away. In view of the same, it is contended that,
In view of these concerns, the petitioner has prayed that the High Court issue directions to:
quash the notification the 2015 notification issued by the Chhattisgarh government and all the proceedings/consequences emanating therefrom as being ultra vires the National Investigation Act, 2008 and the Constitution of India;
transfer those cases out of the said list (of scheduled offences) which are beyond the territorial jurisdiction of Bastar District and Sessions Court at Jagdalpur (i.e. the Special NIA Court) to the respective courts having the jurisdiction to adjudicate those cases.
Advocate Shikha Pandey appeared for the petitioner in matter last week, when the Court admitted the PIL.
Deputy Advocate General Chandresh Shrivastava appeared for the State of Chhatisgarh; the NIA was represented by Advocate Kishore Bhaduri and standing counsel Vaibhav P Shukla appeared for the Union of India. All the respondents have taken notice in the matter.
[Read the Order]