Crl. M.P. Nos. 17570 & 17571/2013 in (Special Leave Petition (Criminal) Nos. 7375/2012 & 9788/2012). Case: 1. State of Andhra Pradesh through I.G. National Investigation Agency, 2. In The Matter of: Sadhwi Pragya Singh Thakur Vs 1. Md. Hussain @ Saleem, 2. National Investigation Agency. Supreme Court (India)

Case NumberCrl. M.P. Nos. 17570 & 17571/2013 in (Special Leave Petition (Criminal) Nos. 7375/2012 & 9788/2012)
JudgesH.L. Gokhale and J. Chelameswar, JJ.
IssueNational Investigation Agency Act, 2008 - Sections 21, 21(2), 6(5); Indian Penal Code - Sections 302, 307, 326, 324, 427, 153-A, 120-B; Explosive Substance Act, 1908 - Sections 3,4,5 and 6; Maharashtra Control of Organised Crimes Act, 1999 - Sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5)
Judgement DateSeptember 13, 2013
CourtSupreme Court (India)


H.L. Gokhale J.

  1. These Criminal Misc. Petitions have been filed by the applicant for impleadment, and clarification of the common order passed by this Court on 2.8.2013 in (i) SLP (Crl.) No.7375/2012 State of A.P. through I.G. National Investigating Agency Vs. Md. Hussain @ Saleem, and (ii) SLP (Crl.) No.9788/2012 National Investigation Agency Vs. Ravi Dhiren Ghosh. SLP (Crl.) No.7375/2012 arose from the judgment and order dated 7.9.2012 in CRLP No.6562/2012 passed by the Andhra Pradesh High Court. SLP (Crl.) No.9788/2012 arose out of the order passed by the Bombay High Court on Criminal Bail Application No.1063/2012. The relevant part of this order dated 2.8.2013 passed by this Court reads as follows:-

    The only issue raised in these petitions is that in view of the provisions of Section 21 of the National Investigation Agency Act, 2008, the matters in the High Court ought to have been heard by a Division Bench, and not by a Single Judge. The submission made by the learned Additional Solicitor General is based on the provision of sub-section (2) of Section 21, which is a statutory requirement. That being so, the order passed by the High Courts deserve to be set aside, and the proceedings, namely, Crl. P.No.6562/2012 in the High Court of Andhra Pradesh and Criminal Bail Application No.1063/2012 in the Bombay High Court, will have to be restored to the Division Bench of the respective High Courts. Ordered accordingly.

  2. The applicant herein is accused No.1 in Special (MCOC) CC No.1/09 pending before the learned NIA and MCOC Court Mumbai. The said case arises out of a bomb blast in Malegaon that occurred on 29.9.2008. A charge-sheet has been filed on 20.1.2009 against the applicant and others, including 3 absconding accused, under Sections 302/307/326/324/427/153-A/120-B of I.P.C., read with Sections 3,4,5 and 6 of Explosive Substance Act, 1908, Sections 3,5 and 25 of Indian Arms Act, 15,16,17, 18, 20 and 23 of Unlawful Activities (Prevention) Act, 1967, and Sections 3(1) (i), 3(1) (ii), 3(2), 3(4), and 3(5) of Maharashtra Control of Organised Crimes Act, 1999 (MCOC Act for short), before the Court of Special Judge (MCOCA) Greater Mumbai, Maharashtra. The National Investigation Agency has taken over the investigation of this case, by virtue of an order of the Central Government dated 1.4.2011 passed in exercise of the powers conferred upon it by Section 6(5) of The National Investigation Agency Act, 2008 (NIA Act for short).

  3. The applicant is in custody and has preferred an application for bail on 23.10.2012, before a Single Judge of the Bombay High Court, bearing Criminal Bail Application No.1679 of 2012, under the provisions of Section 21(4) of the MCOC Act r/w Section 439 of the Code of Criminal Procedure, 1973 (Code for short).

  4. It so transpired that during the pendency of this bail application, this Court passed the above referred common order dated 2.8.2013 in SLP (Crl.) No.7375/2012 and SLP (Crl.) No.9788/2012. The learned Special Public Prosecutor appearing in the matter brought this order to the notice of the learned Single Judge hearing the said Criminal Bail Application, and submitted that in view of the said order dated 2.8.2013 passed by this Court, the said Criminal Bail Application is required to be placed before a Division Bench of the High Court. The learned counsel appearing for the applicant submitted to the High Court that the aforesaid order of this Court has no application to the facts of the case of the applicant. The counsel for the applicant however further submitted that he shall seek necessary clarification with respect to the order passed by this Court. The learned Judge has, therefore, adjourned the hearing of the Criminal Bail Application. It is in these circumstances that the present Criminal Misc. Petitions have been filed seeking impleadment and also the following two prayers:-

    (a) allow this application by clarifying/declaring that provisions of Section 21(2) of National Investigation Agency Act, 2008, applies only to those petitions/applications filed under Section 21(1) of the National Investigation Agency Act, 2008, and order of this Hon''ble Court dated 2.8.2013 passed in SLP (Crl.) No.7375 of 2012 & SLP (Crl.) No.9788 of 2012 does not apply to an appeal from an order of the Special Court refusing bail.

    (b) Further declare/clarify that where the Maharashtra Control of Organised Crimes Act, 1999 applies, all bail matters shall be governed by Section 21 of the Maharashtra Control Organised Crimes Act, 1999, and not by Section 21 of the National Investigation Agency Act, 2008.

  5. The principal submission on behalf of the petitioner is canvassed in ground (B) of this Criminal Misc. Petition which reads as follows:-

    "B. For that Section 21(2) of the NIA Act, 2008, prescribes that every appeal under sub-section (1) of 21 shall be heard by a Bench of 2 Judges of the Hon''ble High Court. Applications for Bail governed by the NIA Act, 2008 are not preferred under 21 (1) of the NIA but under Section 21(4) of the NIA Act, 2008 under which, appeals to the High Court lie only against an order of the special court granting or refusing bail. Appeals under 21(4) are not required to be heard by a Bench of 2 Judges of the High Court. In as much as this Court''s order dated 2.8.2013 purports to hold, that appeals from orders of the special court, granting or refusing bail are to be heard...

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