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2019 DIGILAW 507 (ALL)

Uttam Shukla v. State Of U. P.

2019-02-26

MOHD FAIZ ALAM KHAN

body2019
JUDGMENT : MOHD FAIZ ALAM KHAN, J. 1. Heard learned counsel for accused-applicant as well as Sri Shiv Nath Tilhari, learned A.G.A. for the State. 2. The instant bail application has been filed by the accused-applicant/Uttam Shukla praying to release him on bail in Case Crime No.01/2017 under Section 379, 419, 420, 467, 468, 471, 121, 121A, 120B I.P.C. & Section 3/6 Indian Wireless Telegraphy Act, Section 4/20/25 Indian Telegraphy Act, Section 65/66/66B/66C/66D/66F IT Act, Police Station A.T.S., District Lucknow. 3. During the course of argument, a preliminary objection has been taken by Shri Shiv Nath Tilhari, learned A.G.A. that as the offence is pertaining to Section 121 and 121-A of IPC, which are Scheduled offences provided under the NIA Act, the bail application moved by the accused-applicant under Section 439 of the Cr.P.C. is not maintainable. He submits that when the offences against the applicant are schedule offences as provided in the NIA Act an appeal under Section 21 of the NIA Act will lie. Therefore, according to him, the bail application moved by accused-applicant under Section 439 of the Cr.P.C. is not maintainable. For the purpose of brevity the NIA Act is being written as Act in the foregoing paragraphs of this Order. 4. He further submits that it has also been provided under Section 21 of the Act that such appeal is to be heard by Division Bench of the High Court. Referring to Sections 6, 10, 13, 21, 22 as well as Section 21 of the NIA Act, he submits that whether the investigation is being carried out by the State Agency or by the NIA, if such investigation is with regard to the schedule offences provided under the NIA Act then, the National Investigation Agency Act, 2008 will be applicable and as per the provision provided under Section 21 of the Act an appeal shall lie against the rejection of the order by Special Court or by the Sessions Court, as the case may be. He further submits that a co-joint reading of Section 6 and Section 10 of the Act clearly reveals that the State Government also has power to investigate the Scheduled Offence and for the applicability of the NIA Act, it is the offence which has been prescribed as “Scheduled Offence” and not the agency which is investigating the offences. He further submits that a co-joint reading of Section 6 and Section 10 of the Act clearly reveals that the State Government also has power to investigate the Scheduled Offence and for the applicability of the NIA Act, it is the offence which has been prescribed as “Scheduled Offence” and not the agency which is investigating the offences. He while referring to Section 11, 13 and Section 22 of the Act, submits that the State Government may constitute one or more Special Courts for the trial of the schedule offences provided under any or all enactments specified in the schedule and the Act further provides that the provisions of this chapter will also apply to Special Courts constituted by the State Government, subject to certain modifications, as provided under section 22 of the Act. He submits that a co-joint reading of Section 22(2) under Section 11, 13(1) and 15 of the Act reveals that the State Government is empowered to constitute Special Courts and according to Section 13 r/w Section 22(2)(II), the scheduled offences investigated by the Investigation Agency shall also be tried by the Special Court and where the Special Courts have not been constituted by the State Government in exercise of powers under Section 22(1), the provisions of Section 22(3) would be applicable and such powers, till the creation of Special Courts by the State Government, shall be exercised by the regular Court of Sessions, and even if an order with regard to grant or refusal of bail with regard to the scheduled offences has been passed by the Court of Sessions, in that condition also an appeal shall lie to the High Court. He overwhelmingly submits that the instant bail application is not maintainable and an appeal should have been preferred by the accused-applicant. Learned A.G.A. relied on following Case Laws in support of his contention:- (i) State of Andhra Pradesh, Sadhavi Pragya Singh Thakur vs. Mohammad Husain @ Saleem, National Investigation Agency, (2014) 1 SCC 258 . (ii) Bisheshwar Mishra vs. Hanuman Mishra reported in, (2016) LawSuit(Pat) 788. (iii) Hussna Vs. National Investigation Agency decided by High Court of Allahabad in Criminal Appeal No. 889 of 2016 on 08.02.2017. 5. (ii) Bisheshwar Mishra vs. Hanuman Mishra reported in, (2016) LawSuit(Pat) 788. (iii) Hussna Vs. National Investigation Agency decided by High Court of Allahabad in Criminal Appeal No. 889 of 2016 on 08.02.2017. 5. Learned counsel for accused-applicant while rebutting the contentions of the learned A.G.A. submits that this is not the offence, which is a condition precedent for defining the jurisdiction of 439 Cr.P.C. or an appeal under Section 21 of the NIA Act, but the decision taken by the Central Government under Section 6 of the Act, which will determine as to whether an appeal under Section 21 of the Act will lie or an application under Section 439 of the Cr.P.C. is maintainable. He further submits that in the instant case, no decision under Section 6 of the Act, has been taken by the Central Government to get the case investigated by the National Investigation Agency and in absence of such a decision the provision of NIA Act including Section 21 with regard to preference of appeal in case of rejection or grant of bail is not applicable. Therefore, the contention of the learned A.G.A. is devoid of substance and in the instant matter, Bail Application moved by the accused-applicant under Section 439 of the Cr.P.C. is maintainable. 6. After giving thoughtful consideration to the submission of rival counsels, perusal of NIA Act reveals that according to this Act, the agency is an Investigation Agency at the National level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of the State and offences under the Acts. The NIA was established in concurrent jurisdiction framework with provisions for investigating specific cases under specific acts, in other words the National Investigating Agency is not authorized to deal with offences provided under all enactments, but as provided under Section 3(1) of the Act. Therefore, under Section 3(1) of the Act, the NIA will deal with the matters connected with the following 8 enactments:- 1. The Atomic Energy Act, 1962. 2. The Unlawful Activities (Prevention Act, 1967). 3. Anti Hi-jacking Act, 1982. 4. Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982. 5. The SAARC Convention (Suppression of Terrorism) Act, 1993. 6. The suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002. 7. The Atomic Energy Act, 1962. 2. The Unlawful Activities (Prevention Act, 1967). 3. Anti Hi-jacking Act, 1982. 4. Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982. 5. The SAARC Convention (Suppression of Terrorism) Act, 1993. 6. The suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002. 7. The weapons of Mass destruction and their delivery systems (Prohibition of Unlawful Activities) Act, 2005. 8. Offences under Chapters VI of the Indian Penal Code (45 of 1860) (Section 121 to 130) both inclusive and Section 489-A to Section 489-E of Indian Penal Code. 7. Keeping in view the scheme provided under the NIA Act, under two circumstances the NIA can take up a case for investigation and prosecute offences. It could be on a reference from the State Government where a scheduled offence has taken place, 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 15 days from the date of receipt of the report, whether the offence is a fit case to be investigated by the NIA. The Central Government may also, under Section 6(5) of the Act “Suo moto” direct the agency to investigate a scheduled offence, if the Central Government is of the opinion that the offence is required to be investigated under the NIA Act. In that case 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 as has been provided under Section 6(6) of the NIA Act. In that case 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 as has been provided under Section 6(6) of the NIA Act. According to Section 8 of the Act, the agency may also investigate any other offence, which the accused is alleged to have committed, if that offence is connected with the scheduled offence and by virtue of Section 9, it is mandatory for the State Government to extend all assistance and co-operation to the agency for investigation of the offences as provided under Section 7(b) of the Act, The NIA may also ask the State Government to associate itself with the investigation and after investigating the matter if the agency finds that the matter is not so important, it may, with the previous approval of the Central Government transfer the case to the State Government for investigation and trial of the offence. Therefore, both, the Agency of the Central Government as well as the Investigating Agency of the State Government are competent to investigate a scheduled offence, but when the National Investigation Agency, investigates a scheduled offence, the Investigation Agency of the State Government cannot investigate the same. 8. The reading of above mentioned sections of the Act would show that unless the Central Government directs the NIA to take over the investigation, there is no power entrusted with the NIA to take over the investigation on its own. Therefore, the application of NIA Act would come into operation only in a case when the Central Government takes up a decision and issue any of the direction as mentioned under Section 6 of the NIA Act 2008. There is no embargo under the NIA Act, 2008 for the State Agencies to investigate till a decision is taken by the Central Government. The crux of the matter is that the NIA independently has not been given freedom to investigate any case of its choice. It is only when the Central Government entrusts such case to it, the NIA can investigate the said case, even if the case is pertaining to a scheduled offence referable to the Acts mentioned in the schedule. 9. The crux of the matter is that the NIA independently has not been given freedom to investigate any case of its choice. It is only when the Central Government entrusts such case to it, the NIA can investigate the said case, even if the case is pertaining to a scheduled offence referable to the Acts mentioned in the schedule. 9. In view of above provisions of the NIA Act the decision of central Government with regard to take a decision under Section 6 of the NIA Act 2008 is the sine quo non for the applicability of the NIA Act. A Full Bench of the Patna High Court in Bahadur Kora and others Vs. State of Bihar, reported in, (2015) CriLJ 2134, considering identical issue, overruled their Division Bench’s order rendered in AASIF, P.K. V. The State of Bihar reported in, (2015) 1 PLJR 1017 and opined as under :- 16. “Section-2 of the Act inter alia defines the “scheduled offences” and Section-3 provides for constitution of the N.I.A. Chapter 2, comprising Sections 3 to 5, provides for constitution and other aspects of the N.I.A. Section-6 happens to be the fulcrum of the Act. It reads: “6. (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. (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.” 17. Once a case is identified by the Central Government and its investigation is entrusted to the N.I.A., as indicated above, it is required to be tried by special courts constituted, for this purpose. Such courts can be constituted by the Central Government under Section-11 of the Act or by the State Government under Section-22 of the Act. Section-21 provides for appeals against the orders passed by the “special court” only to High Court, be it on facts or on law. To be more specific, even the orders granting or refusing bail are made appealable under Section-21(4) of the Act. 18. If one goes by the scheme of the Act, the most important step happens to be the one of entrustment of the investigation of the case to the N.I.A. under Sub-section-(5) of Section-6. Once a decision is taken by the Central Government to direct the N.I.A. to investigate the offences, the provisions of the Act would apply, in the context of investigation as well as the trial. 19. The powers of the State Government, in respect of such offences, is virtually subjugated. This is evident from Section-10, which reads as under:- “10. 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.” 20. This is evident from Section-10, which reads as under:- “10. 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.” 20. A reading of this Section discloses that the powers of the State Government to investigate and prosecute any scheduled offence or other offences would remain intact, unless otherwise provided for under the Act. In other words, if the investigation is entrusted to N.I.A., the power of the State to investigate and prosecute the scheduled offences, ceases. 21. Coming to the establishment of courts, it is evident that Section-11 of the Act empowers the Central Government, to do that, whereas Section-22 enables the State Government, to constitute such courts. Section-13 which defines jurisdiction of the special courts becomes relevant in this behalf. It reads: “13.(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.” (Sub-sections (2) and (3) omitted since not necessary for this case). 22. From this it becomes clear that the Act excludes the jurisdiction of other courts to try every or any scheduled offence, “investigated by the Agency” (N.I.A.). The expression “every scheduled offence investigated by agency” has two components. The first is about the identification of the offence; i.e. it being a scheduled offence, and the second is the agency that investigates it, namely, the N.I.A. It is only when these two factors exist, that the special court gets jurisdiction. In other words, the special court cannot deal with the offences (a) unless they are “scheduled offences” and (b) even if a case involves “scheduled offences”, it cannot deal with the same, unless it is investigated by the N.I.A. Whether one calls it as a literal or grammatical interpretation, this is the only possible way to understand the provision. Added to that, it is a well established principle that the provisions of a penal enactment must be construed strictly and there does not exist any occasion to expand the scope thereof, conferring jurisdiction or a court, by way of reasoning or inference.” (Emphasis Mine) While referring to the section 11 and 22 of the NIA Act the Full bench of Patna High Court held as under;- 25. “A comparison of these two provisions reveals that while under Section-11 the Central Government is placed under obligation to constitute a special court, Section-22 leaves it to the discretion of the State Government to constitute the special court for trial of the offences mentioned in the schedule to the Act. Another aspect is that the N.I.A. happens to be the investigating agency in a case tried by the Special Court constituted under Section 11 of the Act, whereas the investigating agency of the State Government, plays that role in a case tried by the special court constituted under Section 22 of the Act. Sub-section (2) of Section 22 makes this, very clear. The investigating agency of the State Government is equated to N.I.A. Once an offence becomes triable by the special court constituted under Section 22(1) of the Act, the transitory provision being Sub-section (3), conferring jurisdiction upon the Sessions Court of the Division, comes into play.” 28. “It has been mentioned at the threshold itself that the objective of the Act is not to make the offences punishable under the Acts mentioned in the schedule thereof, triable, invariably and exclusively by the N.I.A., or for that matter, the special courts constituted under it. It is only when the offences are entrusted for investigation to the N.I.A. that they become triable by the special courts. A serious doubt may arise that if N.I.A. alone is the competent authority to investigate the scheduled offences, albeit entrusted to it by the Central Government, under Section 6 of the Act, where is the occasion for the State Government to create special courts under Section-22 of the Act, or for that matter, to equate the investigating agency of the State with the N.I.A. under Sub-section (2) thereof. The answer is readily available in Section-7 of the N.I.A. Act. It reads: “7. While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may-- (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.” 29. We have already observed that Section-6 happens to be the fulcrum, or basis to bring any particular case within the ambit of the Act, and for entrustment of its investigation to the N.I.A. It is then, that the special courts come into picture. The N.I.A. is not given the freedom, much less conferred with the power, to investigate any case of its choice. It is only when the Central Government entrusts such cases to it, that the agency, i.e. the N.I.A., can investigate the cases. In other words, the N.I.A. does not have the power to investigate by itself, a case, even if it involves a scheduled offence referable to the Acts mentioned in the schedule. It has to wait till the case is entrusted to it by the Central Government. 30. Section-7 deals with situation, posterior to the entrustment of the case to N.I.A. under Section 6 of the Act. Once a case is entrusted to it, the N.I.A. may undertake the investigation, exclusively, by itself, or may request the State Government, to associate with it. It may also transfer the case to the State Government for investigation, depending on the facts of the case and with the previous approval of the Central Government. It is then, and then alone, that the State Government comes into picture for conducting investigation of the cases under the N.I.A. Act. Barring that, the State Government or its investigating agency does not have any authority, or discretion to choose or pick up cases in which offences under the enactments mentioned in the schedule are alleged; for investigation under the N.I.A. Act. 31. Once a case is “transferred” under Clause-(b) of Section-7 of the Act, by the N.I.A. to the investigating agency of the State Government, the later gets equated to the former, under Section-22(2)(ii) and acquires the power to investigate such matters under the Act. It is only for trial of such cases, that were initially entrusted to the N.I.A., under Section 6 by the Central Government and the N.I.A. in turn “transfers” the investigation of the case to the investigating agency of the State Government, under Section 7(b) of the Act, that the constitution of special court under Section-22 of the N.I.A. Act is provided for. 32. 32. In a given case, the N.I.A. may have transferred a case to a State Investigating Agency for investigation under Section 7(b) of the Act and by that time the special court may not have been constituted under Section-22 of the Act. To tide over such contingencies, Sub-section (3) provides for trial of such cases by a Court of Sessions of the Division in which the offence had been committed. It is important to note that a provision similar to Sub-section (3) of Section-22 does not exist in Section-11 of the Act. 33. However, their Lordships of the Division Bench, that decided Aasifs case (supra) proceeded as though the State Investigating Agency has the power to investigate the scheduled offences on its own accord. In a way their Lordships conferred greater power on the State Agency than the N.I.A. in the context of trying scheduled offences. The reason is that while N.I.A. cannot investigate any matter unless it is entrusted to it by the Central Government under Section-6, the Division Bench proceeded as though the State Investigating Agency can investigate such offences without any requirement of entrustment by anyone whatever. This, in our view, has virtually negated the scheme of the Act. 34. It hardly needs any mention that the provisions of a criminal enactment must be construed strictly; and hardly there exists any occasion to expand the scope of such law through the process of interpretation. The principle that where law requires a thing to be done in a particular manner, it must be done in that manner, or not at all, applies with greater rigour in adjudication of criminal cases. 35. The trial of cases in accordance with the procedure prescribed under the Code of Criminal Procedure is the rule. Wherever the State intends to apply a different or special procedure, the law must be clear and it must accord with the provisions of the Constitution of India such as Articles-14, 19, 21 and 22. As and when persons were sought to be tried under special enactments, the approach of the Constitutional Courts is two-fold. The 1st is to see whether the law accords with the Constitution of India and principles of fair play apart from protection of liberty. As and when persons were sought to be tried under special enactments, the approach of the Constitutional Courts is two-fold. The 1st is to see whether the law accords with the Constitution of India and principles of fair play apart from protection of liberty. The 2nd is to examine whether the case sought to be tried under it falls within its score, benefit of any doubt in this behalf, is invariably given to the accused. Neither before us, nor before the Division Bench the N.I.A. was under challenge. Therefore, it has to be seen as to whether the cases of the nature, that are the subject-matter of these appeals are governed by the provisions of the Act. 36. For the most part of it, it is the State that insists on applying the provisions of special enactment against the concerned accused and the latter, in turn, raises objections, both on facts and law, against such a discriminatory and more oppressive treatment. In Aasifs case (supra) it was a sort of reversal of the roles. On its part, the State did not make any attempt to apply the provisions of the N.I.A. Act to the cases of petitioners therein. However, the petitioners wanted the provisions of the Act to be applied. The effort appears to be to get the proceedings that have taken place under Cr.P.C., including the final report, set at naught and to bring about a new legal regime altogether for their cases. It must be said to the credit of their Lordships of the Bench that they have analyzed the provisions of the N.I.A. Act, the Cr.P.C., U.A.P. Act elaborately and discussed the procedures such as taking of cognizance, in detail. What, however, missed their Lordships attention was Section-7 of the Act, which is the only provision that provided the link between the N.I.A., on the one hand, and the investigating agency of the State, on the other hand. 37. Two functions are entrusted to the State Government under the N.I.A. Act. The 1st is under Section-6(2) of the N.I.A. Act wherein it is placed under obligation to forward the report as to the information relating to any scheduled offence to the Central Government expeditiously, on being required under Sub- section-(1); The second is to create and constitute a special court under Section-22 of the Act. The 1st is under Section-6(2) of the N.I.A. Act wherein it is placed under obligation to forward the report as to the information relating to any scheduled offence to the Central Government expeditiously, on being required under Sub- section-(1); The second is to create and constitute a special court under Section-22 of the Act. The mention of the State Government in Sections-7 and 10 is more to remind it, of its restricted role if the investigation of a particular “scheduled offence” is entrusted to the N.I.A. At the same time, as long as the investigation of a case is not entrusted to N.I.A., the powers of the State Government and its investigating agencies remains intact and the investigation and trial of such cases must be proceeded under the Cr.P.C. without any reference to the Act. 38. The interpretation placed in Aasifs case (supra), particularly in paragraph-44 of the judgment, did not take note of another important provision. Section-6(3) mandates that within 15 days from the date of receipt of report from the State Government, the Central Government is placed under obligation to determine (a) whether the offence is a scheduled offence or not; (b) whether, having regard to the gravity of the offence and other related factors, it is a fit case to be investigated by the N.I.A. Till this twin exercise is undertaken, the occasion for the N.I.A. to take up the investigation does not arise. Aasifs case (supra) proceeds as though the State Government can take up the investigation under the N.I.A. Act, without or independent of exercise comparable to the one under Sub-section (3). When the N.I.A. itself cannot investigate any matter unless entrusted to it by the Central Government, the question of any investigating agency in the State undertaking such investigation, without there being entrustment by the Central Government, does not arise. As pointed out earlier, the State Investigating Agency assumes power to investigate a scheduled offence in accordance with the procedure prescribed under the Act only when the N.I.A. transfers the investigations to it, that too, with the previous approval of the Central Government. 39. As pointed out earlier, the State Investigating Agency assumes power to investigate a scheduled offence in accordance with the procedure prescribed under the Act only when the N.I.A. transfers the investigations to it, that too, with the previous approval of the Central Government. 39. The acceptance of the view expressed by the Division Bench in Aasifs case (supra) would lead to a situation where the investigating agency, provided for under the Cr.P.C. or the Courts functioning thereunder would not be entitled to deal with the cases not only arising under the cases included as item nos.1 to 7 of the Schedule of the Act, but also any offence against the State, punishable under Chapter VI comprising of Sections 121 to 130, or the offences pertaining to currency notes and bank notes punishable under Sections 489-A to 489-E of Indian Penal Code. 40. It is a different matter that as soon as the commission of offence under the Acts or provisions mentioned in the schedule are noticed and statement under Section 154 Cr.P.C. is recorded, an Investigating Officer in the State is placed under obligation to forward the report to the State Government under sub-section (1) of Section 6 of the Act and the latter, in turn, is required to forward the report to the Central Government under sub- section (2). If the Central Government decides to entrust the investigation to N.I.A., the State investigating agencies virtually have no role to play except that their assistance can be taken under Section 7(a) of the Act. However, if the Central Government does not pass any order entrusting the investigation to N.I.A. within fifteen days from the date of receipt of the report from the State Government, investigation of the offence can be undertaken by the State investigating agency without any reference to the provisions of the Act. 41. It has already been mentioned that in these cases not a single step referable to Section 6 or 7 were taken either by the State Government or by the Central Government or by the N.I.A. Therefore, simply because an offence punishable under the Unlawful Activities (Prevention) Act, 1967 was alleged, the investigation and trial of such cases cannot be brought under the purview of the Act. 42. 42. On facts it is clear that in none of the cases herein (a) the Central Government or the State Government has taken any steps under Section-6 of the Act; (b) the N.I.A. has transferred the investigation of the trial of the offence to the State Government under Section-7; (c) the State Government did not constitute any special court under Section-22; The occasion to forward a case to the court of sessions under Sub-section (3) of Section 22 would arise only if the case was transferred to the State Government by the N.I.A. Admittedly, no such eventuality has taken place. The result is that the very forwarding of the cases to the Court of Sessions or the taking cognizance of the offences by the court of sessions, directly, on the basis of the judgment of this Court in Aasifs case (supra) is untenable. As a consequence, the appeals preferred under Section-21(4) of the Act become not maintainable.” (Emphasis Mine). 10. A Division bench of Honble Rajasthan High Court in Criminal Appeal No. 219 of 2016, Jagdish Singh v. State of Rajasthan while considering the identical question had occasion to hear the submissions of Ld. Counsel appearing for NIA and recorded as under in para 10 :- “10. Mr. Ashwani Kumar Sharma, learned counsel, has appeared on behalf of the NIA and submitted that he has instructions to make submissions in this matter because, what is decided herein may affect their working. He submitted that the NIA has accepted the judgment of Full Bench of Patna High Court as correct. Unless the investigation of such matter is entrusted to NIA or NIA transfers the same to the investigation agency of the State Government, the investigation agency of the State does not get the power to investigate the matter of such offence in accordance with the provisions of the NIA Act. According to learned counsel, the view taken by the Full Bench of Patna High Court in the said case that cases in which either of the eventuality does not exist, ought to be tried only by the court which otherwise has jurisdiction to try them, is correct law propounded by that Court. According to learned counsel, the view taken by the Full Bench of Patna High Court in the said case that cases in which either of the eventuality does not exist, ought to be tried only by the court which otherwise has jurisdiction to try them, is correct law propounded by that Court. Learned counsel argued that the Central Government not only from the report received from the State Government but also on the basis of information received from other sources as envisaged under Section 6(3) of the NIA Act, or suo motu with reference to Section 6(5) of the NIA Act, having regard to gravity of offence and other material in its possession, can entrust the investigation of any matter to the NIA. In the present case, even after receiving information, if the Central Government has not entrusted the investigation to the agency, that cannot be a reason to hold that the State agency can nevertheless proceed to investigate the matter and file charge-sheet before Special Court, as per provisions of the NIA Act. It is argued that the NIA Act provides for special procedure of investigation and trial of Scheduled offences, in deviation from what is provided for in the Code. This being exception to the Rule, its provisions have to be considered strictly.” (Emphasis Mine) . Therefore it is clear by the scheme of the NIA Act as well as by the ratio as laid down by the Full Bench of Patna High Court in Bahadur Kora (supra), that the cases even where offences punishable are the schedule offences, shall be tried by the courts as provided for under the Cr.P.C. and not in accordance with the special procedure, under the NIA 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, as the case may be. 11. As far as the cases relied on by the learned A.G.A. are concerned they are not applicable to the facts and circumstances of the present case. 11. As far as the cases relied on by the learned A.G.A. are concerned they are not applicable to the facts and circumstances of the present case. The case of Pragya Singh Thakur (supra) which has been relied on by learned A.G.A. is not applicable to the facts of the instant case as in that case, the Central Government had taken a decision to get the case investigated by the NIA and as the case was connected with the schedule offence, the NIA Act was applicable and, therefore, as provided under Section 21, an appeal should have been preferred, therefore, the case of Sadhavi Pragya Singh Thakur (supra) is not a case, where the provisions of NIA Act were made applicable without any decision taken by the Central Government under Section 6 of the NIA Act. Therefore, learned A.G.A. will not get any benefit by referring to this case. As far as the second case i.e. Bisheshwar Mishra (supra) is concerned, it is a case pertaining to the pre-arrest bail in terms of Section 438 of the Code of Criminal Procedure. With regard to the third case relied on by learned A.G.A i.e. Gauhar Aziz Khomani and others Vs. State, (2018) LawSuit(Kar) 1738, wherein the Division Bench of the Karnataka High Court come to the conclusion of the applicability of the NIA Act, as the bail application was rejected by a Special court constituted under the NIA Act, 2008 and also on the ground that under Section 22 (3) of the NIA Act, 2008 it has been provided that where Special Courts have not been established by the State Government, the regular Court of Sessions in which such offence has been committed shall have all the powers under NIA Act, 2008. In my considered opinion this case do not laid down the correct law especially in the background of the Full Bench decision of the Patna High Court in Bahadur Kora (supra), wherein it has been specifically held that the “sine qua non” of the applicability of the NIA Act is a decision taken by the Central Government under Section 6 of the Act with regard to the investigation of Scheduled Offences as provided under the Act. Unless and until such decision has not been taken by the Central Government the provision as contained in the NIA Act will not be applicable and code of criminal procedure will be applicable. Unless and until such decision has not been taken by the Central Government the provision as contained in the NIA Act will not be applicable and code of criminal procedure will be applicable. In the above mentioned case of Karnataka High Court, reference has been taken of the Sadhavi Pragya Singh Thakur’s case and perhaps it was not noticed that in case of Pragya Singh Thakur (Supra), a decision was taken by the Central Government to get the case investigated by the NIA and the case was actually investigated by the NIA. In that scenario, it was held in that case that provisions as contained under Section 21 of the NIA Act will be applicable. Therefore, learned A.G.A. will also not get any benefit with the observations made in this case. 12. Coming to the facts of the instant case, it is not the case of the State that any decision with regard to Section 6 or 7 of the Act pertaining to the investigation of the scheduled offences has been taken either by the State or by the Central Government or even by the NIA. Therefore, simply because an offence punishable under Section 121 and 121-A IPC, which are scheduled offences, has been alleged, the investigation and trial of such cases cannot be brought under the purview of the NIA Act. On the facts of the case, it is clear that it is the case of none that the Central Government or the State Government has taken any decision or steps as provided under Section 6 of the Act, nor the NIA has transferred the investigation of the case or the offence to the State Government under Section 7. Therefore, simply on the basis that the alleged offences is a scheduled offence, the provision as contained under Section 21 of the NIA Act will not be applicable and in the considered opinion of this Court in all these cases, where a decision under Section 6 or 7 has not been taken by either the State Government or the Central Government with regard to the investigation of the case by NIA, an application under Section 439 Cr.P.C. is maintainable. 13. 13. Therefore, the cases even where schedule offences punishable under the provisions of schedule Acts have been alleged, shall be tried by the courts as provided for under the Cr.P.C. 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 and in turn, the NIA either enetred into the investigation itself or transfer the investigation to the State Investigation Agency as prescribed in section 6 and 7 of the NIA Act. There is nothing on record which may suggest that in instant case, any of the eventulity as mentioned in section 6 and 7 of the NIA Act exists and therefore the Bail applications filed by the Applicants/Accused persons are maintainable under section 439 of the Cr.P.C. The objection of learned A.G.A. is therefore without any substance and is not acceptable. List the bail Application for disposal in the week commencing 25.03.2019.