UAPA offences have to be tried by special NIA court even if investigated by State Police: Bombay HC refuses bail to Surendra Gadling in 2016 case

The Nagpur Bench of Bombay High Court refused bail to lawyer and activist Surendra Gadling in a case registered by the Gadchiroli police in 2016 under offences of the Unlawful Activities (Prevention) Act and the Indian Penal Code (Surendra Gadling v. State of Maharashtra)Gadling is also an accused in the Bhima Koregaon case of 2018 which is being investigated by the National Investigation Agency (NIA). .Pertinently, the Bench of Justices VM Deshpande and Amit B Borkar observed that all scheduled offences under UAPA have to be exclusively tried by special NIA court even if NIA does not investigate the same.."All Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act," the order said. .The Bench also held that "the Court trying offences under second schedule of the NIA Act is Special Court, the person aggrieved by an order of refusing bail is required to file appeal under Section 21(4) of the NIA Act and the application under Section 439 of the Code of Criminal Procedure is not maintainable before the High Court.".In December 2016, around 80 vehicles engaged in transporting iron-ore from Surajgarh mines in Gadchiroli, Maharashtra were allegedly set on fire by Maoists.After this, Gadchiroli police registered an FIR for offences punishable under Sections 307 (attempt to murder), 341, 342 (wrongful restraint and constraint), 435 (mischief by fire explosive), 323 (voluntarily causing hurt), 504 (intentional insult), 506 (criminal intimidation), 143, 147 (punishment for rioting), 148, 149 (rioting in unlawful assembly) and 120-B (criminal conspiracy) of IPC, Sections 16, 18, 20 and 23 (punishment for terrorist activities) of the UAPA and other provisions of the Arms Act.Gadling who was arraigned as an accused in the Bhima Koregaon case which was also allegedly organised by Maoists, was implicated for the Gadchiroli incident and then charged with UAPA offences. The investigation for the offences was carried out by the State Investigation Agency and not by the NIA..Gadling approached the Sessions Judge in Gadchiroli for regular bail which was rejected by the Judge in 2019. Challenging that order, Gadling filed the present petition before the High Court..The issue before the Court was whether the Division Bench or Single Judge of the High Court can decide Gadling's bail application in light of the High Court Appellate Side Rules and NIA Act. .Senior Advocate SP Dharmadhikari appearing for Gadling argued that in view of Section 21 (4) of the NIA Act, the present application would have to be treated as an appeal (against an order of a Special Court under NIA Act) and heard by the Division Bench of the High Court. .To substantiate why NIA Act applied, he relied upon the observations in the Supreme Court judgment of Bikramjit Singh v. State of Punjab to contend that all offences under the UAPA Act has to be tried exclusively by the Special NIA Court, irrespective of whether those offences were being investigated by the NIA or not. .Bound by a judgment of three-judge bench of Supreme Court, the High Court concluded that all offences under UAPA are to be tried exclusively by the NIA Court, irrespective of whether NIA investigates it or not. .The secondary contention was whether an application under Section 439 of the Code of Criminal Procedure could lie against an order when the statutory remedy is an appeal under Section 21(4) of the NIA Act..Having held that the Court which passed the order was a special court, the Court concluded that the present bail application before them was an appeal challenging the rejection order of the Special Court under NIA Act. .The Court noted that an appeal under Section 21 of NIA Act had to be instituted within 30 days of the order under challenge and was barred after a period of 90 days as per subsection (5).The Sessions Judge had rejected bail in September 2019 and the present application was filed in March 2020 which was beyond a period of 90 days, the Court could not hear the appeal as it was beyond the 90 day period. .The Court concluded that since the present proceeding is challenging an order of the Special Court, it was required to be challenged under Section 21(4) and therefore, a regular bail application under Section 439 of the Code of Criminal Procedure is not maintainable.Accordingly the Court granted liberty to Gadling to avail the appropriate remedies subject to limitation..[Read order]