1. Leave granted.

2. Heard learned counsel for the parties and perused the material available on record.

3. The State of West Bengal has approached this Court by way of this appeal for assailing the legality and validity of the judgment dated 11th May, 2023 passed by the High Court of Calcutta in C.R.R. No. 3180 of 2022.

Brief Facts:-

4. Digitally signed by Deepak Singh Date: 2024.04.18 Based on written complaint dated 1st January, 2022 filed by 17:08:38 IST Reason: the SI Raju Debnath, STF Police Station, Kolkata on 28th 1 December, 2021 informing about recovery of an unclaimed black coloured bagpack lying abandoned at Sahid Minar containing some written posters of CPI(Maoist) and some incriminating articles about the activities of CPI(Maoist), FIR No. 01 of 2022 came to be registered at STF Police Station, Kolkata for the offences punishable under Sections 121A , 122 , 123 , 124A , 120B of the Indian Penal Code, 1860(hereinafter being referred to as ‘ IPC ’).

5. The respondent herein was apprehended on 29th March, 2022 and was produced before the learned Chief Metropolitan Magistrate, Calcutta on 30th March, 2022. The Investigating Officer conducted preliminary investigation and thereafter filed an application in the Court of learned Chief Metropolitan Magistrate praying for addition of offences punishable under Sections 16 , 18 , 18B , 20 , 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter being referred to as ‘UAPA’).

6. Learned Chief Metropolitan Magistrate, in turn, forwarded the matter to learned Chief Judge, City Sessions Court, Calcutta(hereinafter being referred to as the ‘Chief Judge’) for considering the said application, vide order dated 5th April, 2022.

7. Learned Chief Judge, vide order dated 7th April, 2022 permitted addition of offences under Sections 16 , 18 , 18B , 20 , 38 , 2 39 of UAPA in the case and allowed the same to be investigated along with the existing offences for which the FIR had been registered. The Investigating Officer was directed to take the necessary steps before the learned Chief Metropolitan Magistrate.

8. The respondent filed a petition under Section 482 of the Code of Criminal Procedure, 1973(hereinafter being referred to as ‘ CrPC ’) before the High Court of Calcutta on 25th August, 2022 with a prayer to quash the order dated 7th April, 2022 passed by learned Chief Judge, Calcutta and all subsequent orders passed by the learned Chief Metropolitan Magistrate, Calcutta. While the aforesaid petition was pending, the learned Chief Judge, Calcutta passed an order dated 22nd September, 2022 extending the period of detention of accused upto 180 days under Section 43D(2)(b) of UAPA and permitted the investigating agency to file charge sheet beyond the period of 90 days but within 180 days.

9. The High Court proceeded to accept the petition vide order dated 11th May, 2023 and quashed the proceedings of the case registered against the respondent to the extent of the offences punishable under the provisions of UAPA, holding that only a Special Court constituted by the Central Government or the State Government as per the National Investigation Agency Act, 3 2008(hereinafter being referred to as ‘ NIA Act ’) had the exclusive jurisdiction to try the offences under UAPA. It was further held that as per Section 16 of the NIA Act, the Sessions Court was precluded from taking cognizance of the offences under UAPA and thus the order dated 7th April, 2022 and all subsequent proceedings taken thereunder were without jurisdiction.

10. The aforesaid order dated 11th May, 2023 allowing the petition filed by the respondent is under challenge at the instance of the State of West Bengal in this appeal by special leave. Submissions on behalf of appellant:-

11. Shri Siddhartha Dave, learned senior counsel appearing for the appellant contended that the instant case involves investigation and prosecution by the state police and not by the Central Agency, i.e., National Investigation Agency. He urged that the proceedings would be governed by Section 22 of NIA Act and hence the High Court fell in grave error of law in quashing the proceedings by relying upon the provisions contained under Section 16 of NIA Act.

12. Learned senior counsel further urged that as the case was investigated by the State police and since no Special Court had been constituted by the State Government under Section 22(1) of NIA Act, the Sessions Court having jurisdiction over the division in which the offence was committed, was seized of the exclusive jurisdiction to try the offences as per Section 22(3) of NIA Act.

13. He further urged that since no Special Court was constituted, the jurisdictional Magistrate, who would be the Chief Metropolitan Magistrate in this case, has the jurisdiction to deal with the remand of the accused. Nonetheless, Shri Dave candidly conceded that the power to extend the period of detention beyond 90 days is exclusively vested with the ‘Court’ as defined under Section 2(1)(d) of UAPA which would be the jurisdictional Sessions Court in the present set of facts and circumstances.

14. Without prejudice to the above, the contention of the learned senior counsel was that since the accused never filed an application seeking default bail, after the expiry of 90 days and before filing of the charge sheet, the irregularity, if any, in the matter of granting remand stood cured and hence, the accused has lost the right to claim release on default bail. He thus implored the Court to accept the appeal and set aside the impugned judgment 5 and permit the Sessions Court to proceed with the trial of the accused for the offences charged including those under UAPA. Submission on behalf of Respondent:-

15. Per contra, learned counsel appearing for the respondent, vehemently and fervently urged that the view taken by the High Court while interfering with the order dated 7th April, 2022 is the only permissible and legal view in the extant facts and circumstances. He referred to the Gazette Notification dated 29 th April, 2011 and urged that a Special Court has already been notified by the Central Government for the State of West Bengal and as such, all orders passed and actions taken by the Chief Judge and the Chief Metropolitan Magistrate pertaining to the offences under the UAPA are illegal and without jurisdiction.

16. As a consequence, the High Court was justified in exercising jurisdiction under Section 482 CrPC in quashing the patently illegal order dated 7th April, 2022 and all subsequent proceedings sought to be taken in furtherance thereof. He urged that the impugned order dated 11th May, 2023 is just and legal and does not warrant any interference. However, on the aspect of the grant 6 of default bail to the accused, learned counsel candidly conceded that no prayer was ever made on behalf of the accused either in the Sessions Court or the High Court seeking default bail. The plank contention advanced on behalf of the respondent was that the proceedings before the Chief Judge and the Chief Metropolitan Magistrate are vitiated because both the Courts did not have the jurisdiction to proceed under the provisions of NIA Act and UAPA in light of the fact that Special Court had already been constituted for the State of West Bengal by the Central Government vide Gazette Notification dated 29th April, 2011 which was functioning.

17. Learned counsel implored the Court to reject the instant appeal.

Discussion and Conclusion:

18. For the sake of convenience, we would like to advert to the issues for determination formulated by the learned Single Judge of the High Court in the quashing petition:-

19. Since the validity of the order dated 7th April, 2022 is the main issue requiring adjudication in the case, we would like to reproduce the said order for ready reference:-

Investigation agency is directed to take necessary steps before the Ld. Court of CMM, Calcutta for the same.

To 11.04.2022 for production of the accused before the Ld. CMM, Calcutta.

CD be returned.

Let a copy of this order be given to the IO of this Case. Office is directed to send the case record to the Ld. CMM, Calcutta along with copy of order sheet after keeping the skeleton record.”

20. After considering the entirety of the material available on record, the learned Single Judge proceeded to hold as below:-

21. After making the aforesaid discussion, the learned Single Judge proceeded to refer to the Division Bench judgment of the Calcutta High Court in CRM(DB) No. 3590 of 2022 dated 1 st December, 2022 wherein it was held that once the offences under UAPA are added to a case, the Magistrate is denuded of the power to remand in terms of Section 167 CrPC (as amended in UAPA) beyond a period of 30 days. Observing so, the learned Single Judge proceeded to hold that the order dated 7th April, 2022 passed by the learned Chief Judge, City Sessions Court, Calcutta and all subsequent orders passed by the learned Chief Metropolitan Magistrate were illegal and inoperative and hence the same were quashed.

22. The frontal issue which falls for our consideration is as to whether the Chief Judge, City Sessions Court, Calcutta had the jurisdiction to pass the order dated 7th April, 2022. 11

23. We would like to refer to sub-section (1) and sub-section (3) of Section 22 of the NIA Act which is germane to the controversy and is being reproduced hereinbelow:-

24. A bare perusal of sub-section (3) of Section 22 of NIA Act would make it clear that until a Special Court is constituted by the State Government under sub-Section (1) of Section 22 , in case of registration of any offence punishable under UAPA, the Court of Sessions of the division, in which the offence has been committed, would have the jurisdiction as conferred by the Act on a Special Court and a fortiori, it would have all the powers to follow the procedure provided under Chapter IV of the NIA Act .

25. Admittedly, the present case involves investigation by the State police, and therefore, the provisions of Section 22 would be 12 applicable insofar as the issue of jurisdiction of the Court to try the offences is concerned.

26. Learned counsel for the respondent relied upon Gazette Notification dated 29th April, 2011 in order to canvass that the Special Court had already been constituted for trial of UAPA offences within the State of West Bengal.

27. A bare perusal of the said notification would make it clear that the Special Court was constituted by the “Central Government” in exercise of the power conferred by sub-section (1) of Section 11 of the NIA Act.

28. The State Government has been given exclusive power delegated by virtue of Section 22(1) of the Act (reproduced supra) to constitute one or more Special Courts for trial of offences under any or all the enactments specified in the Schedule.

29. It is not in dispute that the State of West Bengal has so far not exercised the power conferred upon it by Section 22 of the NIA Act for constituting a Special Court for trial of offences set out in the Schedule to the NIA Act and hence, the Sessions Court within whose jurisdiction, the offence took place which would be the Chief Judge cum City Sessions Court in the case at hand, had the power 13 and jurisdiction to deal with the case by virtue of the sub-section (3) of Section 22 of the NIA Act.

30. Hence, the order dated 7th April, 2022, whereby the learned Chief Judge cum City Sessions Court permitted the addition of the offences under UAPA to the case does not suffer from any illegality or infirmity.

31. Now, coming to the second argument advanced by learned counsel representing the parties.

32. Section 43D of UAPA provides a modified scheme for the application of Section 167 CrPC which reads as below:-

33. Under the proviso to Section 43D(2), the Court has been given the power to extend and authorise detention of the accused beyond a period of 90 days as provided under Section 167(2) CrPC.

34. Section 2(1)(d) of UAPA provides the definition of ‘Court’ under the Act and it reads as below:-

35. A plain reading of the provision would clearly indicate that the same admits to the jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act.

36. Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order dated 7th April, 2022. In view of the definition of the ‘Court’ provided under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would also be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only because an express order of the Sessions Court or the Special Court, as the case may be, authorising remand beyond such period 16 would be required by virtue of Section 43D(2) of UAPA(reproduced supra).

37. Hence, to the extent the learned Chief Metropolitan Magistrate extended the remand of the accused beyond the period of 90 days, the proceedings were grossly illegal. Nonetheless, the fact remains that the charge sheet came to be filed beyond the period of 90 days and as a matter of fact, even beyond a period of 180 days, but the accused never claimed default bail on the ground that the charge sheet had not been filed within the extended period as per Section 43D of the UAPA. Hence, the only academic question left for the Court to examine in such circumstances would be the effect of evidence collected, if any, during this period of so called illegal remand, after 90 days had lapsed from the date of initial remand of the accused and the right of the accused to seek any other legal remedy against such illegal remand. Such issues would have to be raised in appropriate proceedings, i.e. before the trial court at the proper stage.

38. As a consequence of the above discussion, the impugned judgment dated 11th May, 2023 passed by learned Single Judge of the Calcutta High Court cannot be sustained and is hereby reversed and set aside.

39. The appeal is allowed accordingly.

40. Pending application(s), if any, shall stand disposed of.

.…………………………J. (B.R. GAVAI) ………………………….J. (SANDEEP MEHTA) New Delhi;

April 18, 2024 18