# Maulana Kaleem Siddiqui v. State of U.P

- **Citation:** (2022) 6 ILRA 1026
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-27
- **Case number:** Criminal Misc. Bail Application No. 5425 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maulana-kaleem-siddiqui-v-state-of-u-p-48623
- **Pages:** 7

## Headnote

Act,2008 - Section 21 - Scheduled offences,
whether
investigated
by
the
National
Investigation Agency or by the investigating
agencies of the St. Government, are to be tried
exclusively by Special Courts set up under the
NIA Act. When the cases pertaining to the
scheduled offence are to be tried by a Special
Court, then Section 21 of the NIA Act would 9
categorically apply to the case and an appeal
shall only lie to the said case, before a division
bench of the High Court, therefore, against the
bail rejected by Special Court appeal would lie
before the Division Bench of the High Court. Bail
Application dismissed as non maintainable.

Held: Application allowed. (E-12)

List of Cases cited:-

## Text

1026 INDIAN LAW REPORTS ALLAHABAD SERIES
of the case and considering the fact that
there is only one case pending against the
applicant and that too of a criminal
conspiracy, the twin conditions referred to
in Section 19(4) of the U.P. Gangster and
Anti-Social Activities (Prevention) Act,
1986, stand satisfied and it is a fit case for
bail.

24. Without expressing any opinion
on the merits, the bail application is
allowed. Let the applicant Zeba Rizwan,
involved in aforesaid case crime be
released on bail on her furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
that :-

1. The applicant shall not tamper
with
the
prosecution
evidence
by
intimidating/ pressurizing the witnesses,
during the investigation or trial.

2. The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

3. The applicant shall not indulge
in any criminal activity or commission of
any crime after being released on bail.

25. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicant and
sureties be verified by the court concerned
before the bonds are accepted.
----------
(2022)06ILR A1026
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.05.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.
Criminal Misc. Bail Application No. 5425 of 2022

Maulana Kaleem Siddiqui ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ishan Baghel, Mohemmed Amir Naqvi

Counsel for the Opposite Party:
G.A.

A. The National Investigation Agency
Act,2008 - Section 21 - Scheduled offences,
whether
investigated
by
the
National
Investigation Agency or by the investigating
agencies of the St. Government, are to be tried
exclusively by Special Courts set up under the
NIA Act. When the cases pertaining to the
scheduled offence are to be tried by a Special
Court, then Section 21 of the NIA Act would 9
categorically apply to the case and an appeal
shall only lie to the said case, before a division
bench of the High Court, therefore, against the
bail rejected by Special Court appeal would lie
before the Division Bench of the High Court. Bail
Application dismissed as non maintainable.

Held: Application allowed. (E-12)

List of Cases cited:-

1. Vineet Kumar Dixit Vs St. of U.P. Bail No.
8778 of 2018

2. Cherukuri Kutumbayya Vs The Municipal
Council, Vijayawada

3. Bikramjit Singh Vs St. of Pun. (2020)10 SCC 616
(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri I.B. Singh, learned Senior
Counsel assisted by Sri Ishan Baghel, learned
counsel for the applicant, Sri Shiv Nath
Tilhari, learned A.G.A.-I for the State and
perused the material available on record.

2. At the outset, learned A.G.A.-I for
the State has raised a preliminary objection
6 All. Maulana Kaleem Siddiqui Vs. State of U.P.
1027
that the present bail is not maintainable as
it cannot be heard before this Court as it is
hit by Section 21 of The National
Investigation
Agency
Act,
2008
(hereinafter referred to as "the NIA Act").
An appeal ought to have been filed on
behalf of the applicant under Section 21 of
the NIA Act to be heard by a division
bench.

3. Learned Senior Counsel for the
applicant has pressed the bail application
on the ground that trial of the case by
Special Court without following Section 6
of the NIA Act is illegal. The case has not
been notified to the Central Government as
provided under Section 6 of the NIA Act,
which is being reproduced hereinbelow :-

"6. Investigation of Scheduled
Offences.-(1) On receipt of information
and recording thereof under section 154 of
the Code relating to any Scheduled Offence
the officer-in-charge of the police station
shall forward the report to the State
Government forthwith.

(2) On receipt of the report under
sub-section (1), the State Government shall
forward the report to the Central Government as
expeditiously as possible.

(3) On receipt of report from the
State Government, the Central Government
shall determine on the basis of information
made available by the State Government or
received from other sources, within fifteen days
from the date of receipt of the report, whether
the offence is a Scheduled Offence or not and
also whether, having regard to the gravity of the
offence and other relevant factors, it is a fit case
to be investigated by the Agency.

(4)
Where
the
Central
Government is of the opinion that the
offence is a Scheduled Offence and it is a
fit case to be investigated by the Agency, it
shall direct the Agency to investigate the
said offence.

(5)
Notwithstanding
anything
contained in this section, if the Central
Government is of the opinion that a
Scheduled Offence has been committed
which is required to be investigated under
this Act, it may, suo motu, direct the
Agency to investigate the said offence.

(6) Where any direction has been
given under sub-section (4) or sub-section
(5), the State Government and any police
officer
of
the
State
Government
investigating the offence shall not proceed
with the investigation and shall forthwith
transmit the relevant documents and
records to the Agency.

(7) For the removal of doubts, it
is hereby declared that till the Agency takes
up the investigation of the case, it shall be
the duty of the officer-in-charge of the
police station to continue the investigation.

(8)
Where
the
Central
Government is of the opinion that a
Scheduled Offence has been committed at
any place outside India to which this Act
extends, it may direct the Agency to
register the case and take up investigation
as if such offence has been committed in
India.

(9) For the purposes of subsection (8), the Special Court at New Delhi
shall have the jurisdiction."

4. Learned Senior Counsel for the
applicant has placed much reliance on the
judgment of this Court dated 26.2.2019
passed in Vineet Kumar Dixit vs. State of
U.P.1, wherein it has been opined after
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
relying on the judgments of Patna High
Court and Rajasthan High Court, that the
cases even where scheduled offences
punishable
under
the
provisions
of
Schedule have been alleged, shall be tried
by the courts as provided for under the
Code of Criminal Procedure, 1973, and not
in accordance with the special procedure
provided under the Act unless (i) The
investigation of such cases is entrusted by
the Central Government to the N.I.A. and
(ii) The N.I.A. transfers the same to the
investigating agency of State Government.
The special procedure under the NIA Act
would attract only when the Central
Government entrusted the investigation to
the NIA, who in turn either entered into the
investigation
itself
or
transfers
the
investigation to the State Investigation
Agency as prescribed in Sections 6 and 7 of
the NIA Act. There is nothing on record
which may suggest that in the instant case,
any of the eventuality mentioned in
Sections 6 and 7 of the NIA Act exists and
therefore, the bail application filed by the
applicants/accused persons is maintainable
under Section 439 of the Cr.P.C. The
objection of the learned A.G.A.-I, is
therefore, without any substance and is not
acceptable.

5. Learned Senior Counsel has also
placed reliance on the judgments of the
Andhra Pradesh High Court in Cherukuri
Kutumbayya v. The Municipal Council,
Vijayawada, wherein it has been opined
that :-

"6. The expression "save as
otherwise provided" in Sub-Section (2)
means ''except to the extent specific
provision is made'. In other words SubSection (2) will come into play only in
cases which are not governed by any other
specific provisions of law. Therefore, it is
only where there is no other special
provision in respect to any other type of
land this Sub-Section is attracted. Since the
legislature has enacted a specific provision
in regard to agricultural lands, it is
reasonable to infer that that category of
lands contemplated by that Sub-Section
should be governed by it.

6. Per contra, learned A.G.A.-I has
vehemently opposed the bail application on
the ground that the applicant has not raised
any objection at the trial court regarding
non-compliance of Section 6, regarding the
case being tried by the Special Court under
the NIA Act. Had so been the case, the trial
would have been proceeded before the
Sessions Judge.

7. He has further placed much
reliance on Section 10 of the NIA Act,
which reads as follows :-

"
10.
Power
of
State
Government to investigate Scheduled
Offences.- Save as otherwise provided in
this Act, nothing contained in this Act shall
affect the powers of the State Government
to investigate and prosecute any Scheduled
Offence or other offences under any law for
the time being in force."

8. Learned A.G.A.-I has also placed
much reliance on Section 21 of the NIA
Act, which reads as under :-

"21.
Appeals.-(1)
Notwithstanding anything contained in the
Code, an appeal shall lie from any
judgment, sentence or order, not being an
interlocutory order, of a Special Court to
the High Court both on facts and on law.

(2) Every appeal under subsection (1) shall be heard by a bench of two
6 All. Maulana Kaleem Siddiqui Vs. State of U.P.
1029
Judges of the High Court and shall, as far
as possible, be disposed of within a period
of three months from the date of admission
of the appeal.

(3) Except as aforesaid, no appeal
or revision shall lie to any Court from any
judgment, sentence or order including an
interlocutory order of a Special Court.

(4)
Notwithstanding
anything
contained in sub-section (3) of section 378
of the Code, an appeal shall lie to the High
Court against an order of the Special Court
granting or refusing bail.

(5) Every appeal under this
section shall be preferred within a period of
thirty days from the date of the judgment,
sentence or order appealed from:

Provided that the High Court may
entertain an appeal after the expiry of the
said period of thirty days if it is satisfied
that the appellant had sufficient cause for
not preferring the appeal within the period
of thirty days:

Provided further that no appeal shall
be entertained after the expiry of period of
ninety days."

9. Learned A.G.A.-I has stated that as
per sub-section (4) of Section 21, it is
stated
that
notwithstanding
anything
contained in sub-section (3) of Section 378
of the Code, an appeal shall lie to the High
Court against an order of the Special Court
regarding bail. The same has to be heard by
a division bench of the High Court.
Learned A.G.A.-I has further stated that
offence committed herein is also under
Section 121(A) which is the scheduled
offence and the said scheduled offence can
be tried by a Special Court as provided
under Section 10 of the NIA Act. The
Schedule is being reproduced hereinunder
:-

THE SCHEDULE
[See Section 2(1)(f)]

1. The Explosive Substances Act,
1908 (6 of 1908)

1-A. The Atomic Energy Act,
1962 (33 of 1962);

2.
The
Unlawful
Activities
(Prevention) Act, 1967 (37 of 1967);

3. The Anti-Hijacking Act, 1982
[2016 (30 of 2016)];

4. The Suppression of Unlawful
Acts against Safety of Civil Aviation Act,
1982 (66 of 1982);

5.
The
SAARC
Convention
(Suppression of Terrorism) Act, 1993 (36
of 1993);

6. The Suppression of Unlawful
Acts
Against
Safety
of
Maritime
Navigation
and
Fixed
Platforms
on
Continental Shelf Act, 2002 (69 of 2002);

7.
The
Weapons
of
Mass
Destruction and their Delivery Systems
(Prohibition of Unlawful Activities) Act,
2005 ( 21 of 2005);

8. Offences under-

a. Chapter VI of the Indian Penal
Code (45 of 1860) [sections 121 to 130
(both inclusive);

b. Sections 370 and 370-A of
Chapter XVI of the Indian Penal Code (45
of 1860);

c. Sections 489-A to 489-E (both
inclusive) of the Indian Penal Code (45 of
1860)..

d. Sub-section (1-AA) of section
25 of Chapter V of the Arms Act, 1959 (54
of 1959);

e. Section 66-F of Chapter XI of
the Information Technology Act, 2000 (21
of 2000).
1030 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned A.G.A.-I has stated that
the judgment referred to by the learned
Senior Counsel does not apply to the
present case, as by that time, there was no
notification by the State Government for
establishing
the
Special
Courts.
The
Special Court has been established in the
State
of
U.P.
on
20.04.2021.
The
notification is as under:-

UTTAR PRADESH SHASAN
GRIH (POLICE) ANUBHAG-9

In pursuance of the provisions of
clause (3) of Article 348 of the Constitution
of India, the Governor is pleased to order
the publication of the following English
translation of notification no. 1002/VI-P-921-31(75)/2017, dated April 20, 2021.

NOTIFICATION
No. 1002/VI-P-9-21-31(75)/2017
Lucknow: Dated: April 20, 2021

In exercise of the powers conferred
under sub-section (1) of Section 22 of the
National Investigation Agency Act, 2008
(Act No. 34 of 2008), the Governor with the
concurrence of Hon'ble High Court of
Judicature at Allahabad, is pleased to
designate the 3rd Senior most Court of
Additional District and Session Judge,
Lucknow as Special Court having territorial
jurisdiction of whole state of Uttar Pradesh
for the trial of all offences as specified in the
Schedule appended to the aforesaid Act,
which are investigated by Anti-Terror
Squad/State Police of Uttar Pradesh.

By Order,

(Awanish Kumar Awasthi)

Additional Chief Secretary

11. Learned A.G.A.-I has further stated
that the present FIR No. 09 of 2020 was
lodged on 20.6.2021 i.e. after the notification
of the State Government and the applicant is
in jail since 22.9.2021 and the bail was
rejected on 03.02.2022. All these events have
occurred after the establishment of Special
Courts by the State Government.

12. Learned A.G.A.-I has further stated
that in the present subject matter, a letter has
been sent by the Inspector General, ATS,
Uttar Pradesh, Lucknow, Dr. G.K. Goswami,
on September, 2, 2021 wherein a report has
been sent to the Home Department vide letter
no. ATS-25-2-(09)/2021/6939 regarding the
present case. It has further been stated that the
Special Secretary, Home State of U.P. has
sent a letter to the Ministry of Home Affairs,
Government of India to the same effect.

13. Learned A.G.A.-I has placed much
reliance on Section 22 of the NIA Act, which
reads as under :-

" 22. Power of State Government
to designate Court of Session as Special
Courts.-- (1) The State Government may
designate one or more Courts of Session as
Special Courts for the trial of offences under
any or all the enactments specified in the
Schedule.

(2) The provisions of this Chapter
shall apply to the Special Courts designated
by the State Government under sub-section
(1) and shall have effect subject to the
following modifications, namely:-

(i)
references
to
"Central
Government" in sections 11 and 15 shall be
construed as references to State Government;

(ii) reference to "Agency" in subsection (1) of section 13 shall be construed
as a reference to the "investigation agency
of the State Government";
6 All. Maulana Kaleem Siddiqui Vs. State of U.P.
1031

(iii)
reference
to
"AttorneyGeneral for India" in sub-section (3) of
section 13 shall be construed as reference
to "Advocate-General of the State".

(3) The jurisdiction conferred by
this Act on a Special Court shall, until a
Special Court is designated by the State
Government under sub-section (1) in the case
of any offence punishable under this Act,
notwithstanding anything contained in the
Code, be exercised by the Court of Session of
the division in which such offence has been
committed and it shall have all the powers
and follow the procedure provided under this
Chapter.

(4) On and from the date when the
Special Court is designated by the State
Government the trial of any offence
investigated by the State Government under
the provisions of this Act, which would have
been required to be held before the Special
Court, shall stand transferred to that Court on
the date on which it is constituted."

14. Learned A.G.A.-I has stated that on
the date when the Special Court was
designated by the State Government, the trial
of any offence investigated by the State
Government under the provisions of the NIA
Act, it would have been required to be held
before the Special Court shall stand
transferred to that Court on the date, it is
constituted.

15. Learned A.G.A.-I has further stated
that under Section 22, the word "Agency"
which has been used in sub-section (1) of
Section 13 shall be construed as a reference
to "Investigation Agency of the State
Government". To buttress his arguments,
learned Senior counsel has placed much
reliance on the judgment of the Supreme
Court passed in Bikramjit Singh versus
State of Punjab,2 wherein it has been stated
that:-

"26. Before the NIA Act was
enacted, offences under the UAPA were of
two kinds - those with a maximum
imprisonment of over 7 years, and those
with a maximum imprisonment of 7 years
and under. Under the Code as applicable to
offences against other laws, offences
having a maximum sentence of 7 years and
under are triable by the Magistrate's Courts,
whereas offences having a maximum
sentence of above 7 years are triable by
Courts of Session. This Scheme has been
completely done away with by the NIA
Act, 2008 as 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. In the absence of any designated
Court by notification issued by either the
Central
Government
or
the
State
Government, the fall back is upon the
Court of Sessions alone. Thus, under the
aforesaid Scheme what becomes clear is
that so far as all offences under the UAPA
are concerned, the Magistrate's jurisdiction
to extend time under the first proviso in
Section 43-D(2)(b) is non-existent, "the
Court" being either a Sessions Court, in the
absence of a notification specifying a
Special Court, or the Special Court itself.
The impugned judgment in arriving at the
contrary conclusion is incorrect as it has
missed Section 22(2) read with Section 13
of the NIA Act. Also, the impugned
judgement has missed Section 16(1) of the
NIA Act which states that a Special Court
may take cognizance of any offence
without the accused being committed to it
for trial inter alia upon a police report of
such facts."
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Learned A.G.A.-I has stated that
scheduled offences, 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 the NIA Act.

Section 13(1) of the NIA Act,
which begins in a notion reads as under :-

"13. Jurisdiction of Special
Courts.-(1)
Notwithstanding
anything
contained in the Code, every Scheduled
Offence investigated by the Agency shall
be tried only by the Special Court within
whose local jurisdiction it was committed."

17. The aforesaid Section 13(1) of the
NIA Act begins with a non-obstante clause,
which
is
notwithstanding
anything
contained in the Code, read with Section
22(2)(ii), states that every Scheduled
Offence that is investigated by the
Investigation
Agency
of
the
State
Government is to be tried exclusively by
the Special Court within whose jurisdiction
it was committed.

18. When the cases pertaining to the
scheduled offence are to be tried by a
Special Court, then Section 21 of the NIA
Act would categorically apply to the case
and an appeal shall only lie to the said case,
before a division bench of the High Court.

19. Thus, it follows from the aforesaid
averments of the parties that the Special
Court in the State has been established vide
notification
no.
1002/VI-P-9-2131(75)/2017, and the bail application of the
applicant has been rejected by the Special
Court under NIA Act vide order dated
3.2.2022. No objection whatsoever, has
been raised by the applicant before the
designated court and the provisions of
Section 21(4) are applicable to the present
case. Furthermore, Section 6 of the NIA
Act has been complied with. The bail
application filed without jurisdiction before
this Court is, thus, not maintainable.

20. The bail application is dismissed
with a liberty to file an application for
appeal under Section 21 of the NIA Act
before the appropriate bench.

21. The counsel for the applicant shall
be returned the certified copies of the
orders and other relevant documents, after
keeping photocopies thereof, as per the
Rules of the Allahabad High Court.
----------
(2022)06ILR A1032
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 12510 of
2019

Ramshankar ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Mahesh Singh Yadav, Avdhesh Kumar
Singh Yadav, Ganga Sagar Mishra, Ratnesh
Singh Tomar

Counsel for the Opposite Party:
G.A., Munni Lal Yadav

A. Stringent provisions of the P.O.C.S.O. Act can
be done away with under the extra-ordinary
circumstances of the case.

Application allowed. (E-12)

List of Cases cited:-