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Judgment
Rajesh Rai K, J
The petitioner, who is the accused of Scheduled offences under Unlawful Activities (Prevention) Act, 1967 (for short 'the Act, 1967) in Cr.No.63/2022 of Hubballi Police Station, has filed this writ petition seeking the following reliefs:
"(a) That, this Hon'ble Court may be pleased to set aside the Cognizance order dated 27.10.2022 passed by the Hon'ble 49TH CITY CIVIL and SESSIONS JUDGE AND SPECIAL JUDGE FOR TRIAL OF NIA CASES AT BANGALORE (CCH-50) at ANNEXURE-A in Crime No.63/2022 registered by the Old Hubballi PS under Sections 143, 147, 148, 323, 324, 332, 333, 504, 506, 427, 307, 120B, 225B, 153A, r/w 149 of IPC and u/s 3(1) of Prevention of Damage to Public Property Act, 1984 and U/s16(1)(b), 18, 20 of Unlawful Activities (Prevention) Act, 1967 want of jurisdiction, and
(b) Consequently, transfer the Spl CC no.2263/2022 which is pending in the files of Hon'ble 49TH CITY CIVIL and SESSIONS JUDGE AND SPECIAL JUDGE FOR TRIAL OF NIA CASES AT BANGALORE (CCH-50) to the Principle District and Session Court at Dharwad which has proper jurisdiction to try this case as per the section 22(3) of NIA act. and also
(c) Declare that Government order i.e. GO order No Law 231LCE 2010, Bangalore Dated 19th July 2012 at ANNEXURE-D is not a notification under section 22 of the NIA Act.
(d) Pass any other order which this court deems fits, in the interest of justice and equity."
The facts in brief that are apposite for consideration in the case on hand as borne out from the pleadings are as follows:
The petitioner i.e., accused No.138 in Cr.No.63/2022 registered by respondent No.1-Police for the offence punishable under Sections 143, 147, 148, 323, 324, 332, 333, 504, 506, 427, 307, 120B, 225B, 153A r/w Section 149 of IPC and Section 3(1) of Prevention of Damage to Public property Act, 1984 and under Section 16(1)(b), 18, 20 of Unlawful activities (Prevention) Act, 1967 has been arrested and produced before the learned IV Additional Civil Judge and JMFC at Hubballi and he was remanded to judicial custody. Subsequently, respondent No.1-Police completed the investigation and laid the charge sheet in the aforesaid case before the Special Judge for NIA cases at Bengaluru i.e., learned XLIX City Civil and Special Judge. Based on the said charge sheet materials, learned Special Judge took cognizance of the offences against the petitioner and others vide order dated 21.10.2022 and directed the office to register a case against the petitioner and others in Register No.III as Special Criminal Case. Accordingly, a special case was registered against the petitioner in Spl.C.C.No.2263/2022 by arraying as accused No.138. However, during the course of trial, the petitioner was released on bail by the Special Court. On this scenario, the petitioner has challenged the cognizance order as stated supra, in this writ petition, on the ground that the same amounts to illegal detention.
We have heard the learned counsel Sri Mohammed Tahir for the petitioner and learned SPP-I Sri Belliappa for Sri Anoop Kumar for respondent Nos.1 and 2 so also perused the entire materials placed before us.
Learned counsel for the petitioner would vehemently contend that respondent No.1-police has erroneously laid the charge sheet against the petitioner before the learned Special Court at Bengaluru which is designated only under Section 11 of the National Investigation Agency Act, 2008 (for short 'the NIA Act'). As such, the said Court has no such jurisdiction to adjudicate the case against the petitioner. Hence, the cognizance taken by the learned Special Judge against the petitioner in Spl.C.C.No.2263/2022 is totally illegal and arbitrary. Due to the same, the petitioner was detained in prison a quite long time, which amounts to illegal detention.
By enunciating his argument, learned counsel for the petitioner emphasized Section 11 of the NIA Act and submits that under the said provision, the Central Government shall, in consultation with the Chief Justice of the High Court, by the Notification in the Official Gazette, for the trial of Scheduled Offences, designate one or more Courts of Session as Special Court for such area or areas, or for such case or class or group of cases, as may be specified in the Notification. Whereas, the power of State Government to designate the Courts of Session as Special Courts is notified under Section 22 of the NIA Act. Additionally, the learned counsel, by relying the proceedings of the Government of Karnataka dated 19.07.2012, contends that the above Notification depicts that the Government of Karnataka agrees for establishment of one more Court of Additional City Civil & Session Judge (Special Court) to deal with the cases under the NIA Act, 2008 at Bengaluru together with the post of Presiding Officer and following non-gazetted staff. However, there is no such order of assigning the Special Court or appointment of the Judges to the said cases as on the date of taking cognizance order by the learned Special Judge against the petitioner in Spl.C.C.No.2263/2022. Hence, according to the learned counsel, the Notification dated 19.07.2012 cannot be termed as establishment of Special Court for NIA cases as contemplated under the provision of Section 22 (3) of the NIA Act. Accordingly, the learned counsel posit that the very remand of petitioner in Cr.No.63/2022 to the judicial custody and subsequent order of taking cognizance by the learned Special Court amounts to illegal detention of the petitioner. Consequently, he supplicate to set aside the cognizance order and to transfer the Special case to Principal District and Sessions Court at Dharwad, which has a proper jurisdiction to try the case as per Section 22 of the NIA Act.
In order to buttress his arguments, he relied upon the judgment of the Hon'ble Supreme Court in the case of Gautam Navlakha vs. National Investigation Agency reported in (2021) 2 Crimes 295.
Refuting the above submissions, learned SPP-I Sri Belliappa would contend that before adverting the merits and jurisdiction of the trial Court to try the case against the petitioner as contended by learned counsel for the petitioner, prima facie, this Habeas Corpus Petition is not maintainable either on fact or on law for the reason that the petitioner is not either in judicial custody or under illegal detention and he has been released on bail by the learned Special Court. Such being the position, the petitioner is not under illegal detention by any authority under any law. He would further contend that even otherwise, the arguments canvassed by the learned counsel for the petitioner does not hold good for the reason that as per Section 11(2) of NIA Act, if a question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final. Similarly, as per Section 22 (2) (i) of the NIA Act with regard to the jurisdiction aspect, the decision of the State Government would be final. Hence, if the petitioner is aggrieved on the aspect of jurisdiction, he shall approach either the Central Government or the State Government as contemplated under the above provisions. Accordingly, learned SPP-I prays to dismiss the writ petition.
Having heard the learned counsel for the parties, the only point that would arise for our consideration is:
"Whether the writ of Habeas Corpus is maintainable in the facts and circumstances of the case?"
Before delving into the merits of the case, in respect of the jurisdiction of the Special Court to take cognizance against the petitioner in Spl.C.C.No.2263/2022, it is apposite to consider the primary aspect of maintainability of this Habeas Corpus petition.
The principle of Habeas Corpus has been incorporated in Constitutional law to protect individual liberty. Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except in accordance with the procedure established by law. The object of writ of Habeas Corpus is to secure release of a person, who is illegally restrained of his/her liberty.
In the instant case, the petitioner is on bail in Spl.C.C.No.2263/2022 and the same is not disputed by the learned counsel for the petitioner. In order to invoke writ of Habeas Corpus, a person must be in actual detention or imprisonment and such action must be illegal or unconstitutional. If a person is not actually detained, obviously a writ of Habeas Corpus would not lie. Hence, we find substantial force in the plea of learned SPP-I Sri Belliappa.
The grievance of the petitioner in respect of the cognizance order passed by a wrong forum/Court which is not allegedly designated to try the cases under the NIA Act, the only remedy available to the petitioner is to approach the Central or State Government as contemplated under Sections 11 (1) and 22 (2) (i) of the NIA Act. The same cannot be challenged by filing a writ of Habeas Corpus. Hence, the said contention of learned counsel for the petitioner in that regard is also liable to be rejected. The judgment relied on by the learned counsel is not applicable to the facts and circumstances of the case on hand. Hence, a detailed discussion is not required on the same. In such circumstances, suffice to hold that the writ petition is not maintainable and the same is liable to dismissed.
Accordingly, we answer the point raised above in the negative and proceed to pass the following:
ORDER
i) The writ petition is dismissed.