JUDGMENT : Songkhupchung Serto, J. 1. This is a criminal appeal directed against both the orders dated 08.12.2016 and dated 11.01.2017, passed by the learned Sessions Judge, Dimapur, in G.R. Case No. 718/2016, arising out of NIA Case No. R.C. 01/2016/NIA-GUW registered under section 384 IPC, 10/13/17/20 UA(P), 25(B) Arms Act, 7/8 NSR and 13 Drugs & Cosmetics Act whereby the respondent was first released on interim bail and the same was regularized. On 28.09.2016, the respondent/accused was arrested in connection with NIA Case R.C. 01/2016 and thereafter, he was remanded to judicial custody on 06.10.2016. The charge slapped against the accused was that he is a member of NSCN-K which is declared as a terrorist organization under the Unlawful Activities (Prevention) Act, 1967, and he was involved in illegal extortion from individuals and Government Departments in the State for funding the illegal activities of the organization of which he is a member. While the investigation was going on and barely 70 days had passed from the date of his arrest, a bail application was submitted before the learned Sessions Judge, Dimapur, by his wife praying for his release mainly on the ground that his daughter who was only 12 years old then, was suffering from heart problem and she has been advised by a Doctor of Bethel Medical Centre Kohima, to go for further examination by a Cardiologist and Psychiatrics, and for that his presence was necessary. The learned P.P. NIA also appeared and the matter was heard on 08.12.2016. The learned Sessions Judge, Dimapur, on the same day, granted interim bail to the respondent for a period of 30 days with local surety bond of Rs. 1 lakh mainly for the purpose of enabling him to take care of his daughter's medical treatment. In the same order, the learned Sessions Judge, Dimapur, also directed the respondent to appear on 11.01.2017 i.e. on expiry of 30 days from the date of the order for further necessary steps. On 11.01.2017 a Misc Case being No. 7/9 of 2017 was filed before the learned Sessions Judge, Dimapur, praying for regularisation of the interim bail granted to the respondent on 08.12.2016, on the ground that a Doctor namely, Avotuo Rhucha M.D. had advised treatment of his daughter by a Cardiologist at a better hospital outside the State and for that his presence would be necessary. The learned P.P. NIA objected the prayer on the ground that the investigation was going on full swing and for that the presence of the respondent was necessary. Despite the objection, the learned Sessions Judge, Dimapur, granted the prayer and regularised the interim bail passed on 08.12.2016. Not satisfied with the two impugned orders passed by the learned Sessions Judge, Dimapur, the National Investigation Agency (in short, NIA) to whom the investigation and prosecution of the case has been handed over has filed the present appeal assailing the same on two grounds;- (i) That the impugned orders are perverse in law as the learned Sessions Judge, Dimapur, having acted as Special Judge under the National Investigation Agency Act could have exercise power to release an accused on bail only as provided under section 437 of Cr. PC and not under section 439 of the same code. The learned P.P. NIA cited the decision of this High Court in the judgment and order dated 29.07.2009, passed in Bail Application No. 2605, 2639 and 2787 of 2009, Redaul Hussain Khan & Ors. Vs. State of Assam & Ors. reported in 2009 (3) GLT 855, paragraph-106 & 107 of the judgment. The same are reproduced here below;- "106. What surface from the above discussion, held, as a whole, is that except as provided in section 167(2-A) of the code, a person, arrested in connection with an offence, under the NIA Act, can be remanded to custody police or judicial, by the Special Court, where the Special Court has been constituted, or by the Court of Session, where the Special Court has not been constituted. In view of the fact that the NIA Act envisages a situation, wherein an investigation, as in the present case, may be entrusted to the National Investigation Agency after the State Police after the State Police had made some investigation, it further follows that once the investigation, under the scheme of the NIA Act, is taken over by the Agency, it is the Special Court or the Court of Session, as the case may be, the source of power to consider such an application for bail lies in section 437 and not section 439 of the Code. Even a High Court cannot invoke its powers under section 439, to grant bail if it has been refused by the Special or the Court of Session, as the case may be, nor can the High Court, in exercise of its power, under section 439, cancel bail if bail has been granted to such an accused by the Special Court or the Court of or the Court of Session, as the case may be. If the bail has been refused or granted by the Special Court or the Court of Session, as the case may be, the aggrieved party may, however, prefer an appeal, in terms of section 21, to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned. 107. In the backdrop of the position of law, as indicated above, it becomes clear that the present three applications for bail, which have been made under section 439 of the Code, are not entertain able in law and must, therefore, fail". (ii) The second ground submitted by learned P. PNIA is that since the charge against the respondent/accused includes schedule offences as given in the schedule of the NIA Act, the learned Sessions Judge, Dimapur, in exercise of the power under the Act and under section 437 of the Cr.P.C. could not have released the respondent/accused on bail as there was sufficient prima facie evidence to show that the accusations against the respondent/accused are prima facie true. The learned P.P. NIA in support of his submission drew our attention to section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, which reads as follows; "(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true". The learned P.P. NIA after having referred to the above provision of law drew our attention to the statements of prosecution witnesses recorded during investigation. Some of the witnesses statements to which our attention has been drawn are PW No. 12, PW No. 13, PW No. 14, PW No. 18, PW No. 22 and PW No. 30. The witnesses identified the photograph of the respondent/accused from amongst the photographs of other persons and stated that he is the one who use to receive the extortion money on behalf of the NSCN-K. One of the PWs also identified the specimen signature of the respondent/accused which the learned PP. NIA submitted was sent to the handwriting expert who after examination of the same has confirmed that the money receipt on which the respondent/accused had purportedly signed are one and the same with his specimen signature. One of the PWs also stated that he was the Principal of Khelhose Polytechnic, Atoizu, and the respondent/accused had worked under him but was almost all the time remain absent. He also stated that whenever his salary was held-up, the respondent/accused would bring cadres of NSCN-K and threatened him. The learned P.P. NIA also drew our attention to "pointing out memo" prepared by the Investigation Officer and signed by the team member, the respondent/accused and a witness. The pointing out memo among others shows that the diary of the respondent/accused was seized and in some of the pages, the phone numbers of Government officers and other individuals from whom the respondent/accused had admittedly extorted money are given. Thereafter, the learned P.P. NIA submitted that this document is a piece of evidence which would prove that the respondent/accused was regularly extorting money on behalf of the NSNC-K from Government officers and other individuals. The learned P.P. NIA also referred to "production-cum-seizure memo" of documents which shows receipt of extortion money from Department of Land Resources, Government of Nagaland by the respondent/accused and submitted that all these documents shows that the respondent/accused was involved in extorting money from Government Departments on behalf of NSCN-K which is a terrorist organization. Therefore, the learned Sessions Judge, Dimapur, acting under the Special Act should not have released the respondent/accused on bail. Therefore, the learned Sessions Judge, Dimapur, acting under the Special Act should not have released the respondent/accused on bail. The learned P.P. NIA further submitted that though the Case Dairy was made available to the learned Sessions Judge when the bail matter was taken up for hearing, the learned Sessions Judge did not so through it but straight away released the respondent/accused on bail on the ground of sickness of his daughter and her treatment. Therefore, the same is violative of the provision of section 43D(5) of Unlawful Activities (Prevention) Act, 1967. The learned P.P. NIA in support of his submission cited the judgment and order passed by a Division Bench of this High Court in the case of Jayanta Kumar Ghosh & Anr. Vs. State of Assam & Ors. reported in 2010 (4) GLT 1, particularly paragraphs-73, 74, 76, 79 and 81. The contents of the paragraphs are given here below:- "73. Thus, the expression, 'prima facie true', would mean that the court shall undertake an exercise to determine as to whether the accusations, made against the accused, are inherently improbable and/or wholly unbelievable. Ordinarily, while considering a complaint, made against an accused, the court assumes the contents of the complaint to be true and correct and, then, proceed to decide as to whether the allegations, made in the complaint, make out a case of commission of offence by the accused or not. No exercise is required to be undertaken by the court to determine the truthfulness or veracity of the accusations. However, when the word, 'prima facie' is coupled with the word, 'true' it implies that the court has to undertake an exercise of cross-checking the truthfulness of the allegations, made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations made are inherently improbable, or wholly unbelievable, it may be difficult to say that a case, which is prima facie true, has been made out. 74. The term 'true' would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. 74. The term 'true' would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are reasonable grounds for believing that the accusation against the accused is prima facie true or false, the court can only look into the materials collected during investigation, and on its bare perusal should come to a finding that the accusation is inherently improbable, however, while so arriving at a finding the court does not have the liberty to come to a conclusion which may virtually amount to an acquittal of the accused. 76. In short, thus, on a bare reading of the materials, as may have been collected during the investigation, if the Special Court finds that the materials, so collected, are sufficient to form, when assumed to be true, an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true, the Special Court will be dis-empowered from releasing the accused on bail. At the stage of bail, no minute scrutiny or microscopic dissection of the materials, collected during investigation, shall be undertaken by the Special Court. Credibility or otherwise of the materials collected would not be the subject-matter of scrutiny. What, at best, the Special Court can do, and shall do, is to examine if the accusations made, on the basis of the materials collected, are wholly improbable. When the materials are, on examination by the Special Court, are found to be not wholly improbable and the Special Court finds, on assuming such materials to be true, that the accusations, made against an accused, as regards commission of an offence under Chapter IV and/or Chapter VI of the UA (P) Act, are prima facie true, such materials would be enough to attract the bar imposed by the proviso to section 43-D(5). 79. Coupled with the above, the proviso to section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of cannot be irrational or arbitrary. 79. Coupled with the above, the proviso to section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmise and conjectures, but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under chapter IV or chapter of the UA (P) Act, 1967, can be said to have been made out and when such a case is made out, it would be tantamount to saying that reasonable grounds exist for opening that the accusations are prima facie true. In such a case, the bar, imposed by the proviso to section 43-D(5) on the court's power to grant bail, gets attracted. 81. There are no corresponding provisions, in the NIA Act, as were present in section 20(8) and section 20(9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-section (8) and/or sub-section (9) of section 20 of the TADA Act) no longer find place in the NIA Act, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a 'court' other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-section (1) of section 437 Cr.P.C., are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to section 43-D (5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar that the Special Court shall not release the accused on bail or on his own bond if the court, on perusal of the case diary or the report made under section 173 of the code, is of the opinion that there are 'reasonable grounds' for believing that the accusation against such person is prima facie true". 2. Mr. 2. Mr. Pokyim Yaden, learned counsel for the respondent/accused submitted that the documents referred to are documents which are not yet proved in evidence, therefore, it would be unfair to rely on them against the respondent/accused at this stage. The learned counsel also submitted that section 43D(5) of Unlawful Activities (Prevention) Act, 1967, states that the accusation must be shown as prima facie true, therefore, the prosecution must show that accusation or charge leveled against the accused are prima facie true, otherwise, the provision of section 43D(5) will not be attracted. In support of his submission Mr. Pokyim Yaden, learned counsel for the respondent/accused cited the judgment passed and order passed by this High Court in the case of National Investigation Agency Vs. Redaul Hussain Khan reported in 2010 (3) GLT 302, particularly paragraph-99 of the judgment. The content of the same are reproduced here below;- "99. The expression, 'reasonable ground', means something more than prima facie ground, which contemplates a substantially probable case for believing that the accused is guilty of the offences alleged. Under Section 437 CrPC, an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence, which is punishable with death or imprisonment for life. Under Section 437 CrPC, the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displayed only on the prosecution showing existence of reasonable ground to believe that the accused is guilty". (See Union of India Vs. Thamissharasi, reported in (1995) 4 SCC 190 , and Union of India Vs. Shiv Shankar Kesari, reported in (2007) 7 SCC 798 )." The learned counsel for the accused/respondent further submitted that mentioned of section 439 of Cr.P.C. in the bail application filed before the Sessions Judge, Dimapur was merely a typographical mistake but while considering the application, the learned Sessions Judge, Dimapur, had exercised his jurisdiction/power under section 437 of Cr.P.C. Therefore, there is no perversity in the judgment or order of the learned Sessions Judge, Dimapur. 3. 3. After having heard the learned counsels representing the parties and also after having gone through the copies of the Case Dairy placed before us we are of the view that there are sufficient materials which shows that the charge against the respondent/accused are prima facie true. We have also gone through other documents besides what has been referred to by the learned P.P. NIA, all of which shows prima facie that the respondent/accused was involved in extortion of money from the Government Departments and individuals. These documents unless refuted or rebutted successfully will lead to conviction of the respondent/accused on the charges leveled against him under Unlawful Activities (Prevention) Act, 1967. Therefore, as per the provision of section 43D(5), the learned Sessions Judge, Dimapur was barred from releasing the respondent/accused on bail. But having ignored the bar as provided under that provision of law, the learned Sessions Judge, Dimapur, has committed gross illegality in granting the interim bail and regularising the same. Further, since the learned Sessions Judge, Dimapur, was acting as Special Judge under NIA Act and not as Sessions Judge, he could not have exercised the power or jurisdiction under section 439 of Cr.P.C. Therefore, the whole proceeding of granting bail to the respondent/accused was undertaken beyond the power and jurisdiction conferred by law, as such, the same cannot be upheld in law. The submission of the learned counsel for the respondent/accused that the mention of section 439 of Cr. PC in the application was due to typographical mistake but the whole exercised was undertaken by the learned Sessions Judge, Dimapur, under section 437 of Cr. PC does not appear to be convincing enough. Furthermore, release of an accused charged under schedule offences of the NIA Act could not have been considered for the reasons given in the order because under section 437 of Cr. PC such ground is not available for release of an accused. In the light of the judgments cited by the learned counsels of the parties and taking into consideration the facts and circumstances of the case and the materials collected by the Investigation Agency which are in record we have no choice but to set aside and quash the impugned orders and cancel the bail granted to the respondent/accused. Accordingly, the impugned orders are set aside and quashed and the bail granted to the respondent/accused is cancelled. Accordingly, the impugned orders are set aside and quashed and the bail granted to the respondent/accused is cancelled. The respondent/accused should surrender before the learned Sessions Judge, Dimapur, within a period of 7(seven) days from today. On his surrender, the learned Sessions Judge, Dmapur, shall remand the respondent/accused back to judicial custody till the conclusion of the trial. With this, the Criminal Appeal is disposed. Disposed off