JUDGMENT (Prayer: Criminal Revision Case filed to call for the records in order dated 09.09.2019 in Crl.MP.No.3138 of 2019 in Cr.No.499 of 2019 (on the file of the Podhanur P.S., Coimbatore City) passed by learned Principal District and Sessions Judge, Coimbatore and set aside the same and consequently, release the petitioners forthwith). 1. This Criminal Revision Petition has been filed by the Accused Nos.1 to 3 challenging the order passed by the Principal District and Sessions Judge, Coimbatore in Crl.MP.No.3138 of 2019 dated 09.09.2019. 2. On 12.06.2019 at about 18.00 hrs, Mr.P.Udhayakumar, Sub- Inspector of Police, D3 Podanur Police Station, Coimbatore District, has lodged a special report / complaint before the Inspector of Police, D3 Podanur Police Station stating that inter alia while he was on patrol on 12.06.2019 at about 12.00 hours, the petitioners/Accused Nos. 1 to 3 frequently met at Kurichi Pirivu and Karuparayn temple areas and were boasting on the sacrifies of Zahran Hashmi, a master mind of Sri Lankan serial bomb blasts and his associates for their terror attack at Sri Lanka. The petitioners/Accused Nos.1 to 3 along with one Shahbaz Ahamed and few other persons used to meet often at Karumbukadai area. The said persons used to discuss about the ISIS and its ideologies, activities in an electrical shop located at Karumbukadai. They used to collect such photographs and pamphlets to embrace the idea, ideology and made of terror attack like ISIS activists. Further, they have proposed to stage a terror attack in and around Coimbatore representing ISIS by sacrificing themselves. Further, to instill a sense of fear in the minds of general public and uphold the ideologies of ISIS, they have also proposed for a suicide terror attack in sensitive places and places of huge congregation of crowd in Coimbatore to ensure their strength and create a communal disharmony prejudicial to the peace and tranquility. 3. Based on the said special report/complaint, the Inspector of Police, D3 Podanur Police Station has registered a case in Cr.No.499 of 2019 under Sections 18, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (for short “the U.A. Act”). 4. It is alleged that, during the course of investigation, House Searches were conducted and certain materials were seized. After the search, the petitioners were summoned for interrogation. Accordingly, the petitioners appeared before the respondent on 14.06.2019. 4. It is alleged that, during the course of investigation, House Searches were conducted and certain materials were seized. After the search, the petitioners were summoned for interrogation. Accordingly, the petitioners appeared before the respondent on 14.06.2019. After interrogation, the petitioners were arrested and confessions were recorded and thereafter they were remanded to judicial custody on 15.06.2019. Later the petitioners were ordered for interrogation in police custody from 28.06.2019 for a period of 5 days and after police custody, they were produced before the Court on 02.07.2019 and remanded to judicial custody. Thereafter, remand was periodically extended by the Principal District and Sessions Judge, Coimbatore upto 09.09.2019. 5. On 09.09.2019, the Public Prosecutor of the Principal District and Sessions Court, Coimbatore has filed a report under Section 167(2) of Cr.P.C., r/w Section 43-D (2) (b) of the U.A. Act, for extending the period of detention of petitioners for further period of 90 days from 09.09.2019. The learned Principal District and Sessions Judge, Coimbatore, has taken the said report as Crl.MP.No.3138 of 2019 and extended the period of detention upto 04.10.2019. 6. Challenging the said order of extending the period of detention of the petitioners dated 09.09.2019, this Criminal Revision Petition has been filed. 7. Heard Mr.M.Radhakrishnan assisted by Mr.P.Pugalenthi, the learned counsel for the petitioners/Accused and Mr.C.Iyyapparaj, the learned Additional Public Prosecutor assisted by Mr.T.Shanmuga Rajeswaran, Government Advocate (Criminal Side) for the respondent. 8. The learned counsel for the petitioners/Accused has submitted that the learned Sessions Judge has passed the impugned order in violation of Section 43-D (2) (b) of the U.A.Act since the report of the Public Prosecutor did not contain the compelling reasons for seeking the detention of the petitioners beyond the period of 90 days. He further submitted that the learned Sessions Judge ought to have recorded his reasons for extending the period of detention, but in this case, he has not recorded any reasons. He further submitted that before considering the report of the Public Prosecutor, the learned Sessions Judge ought to have give notice to the accused, but in this case, no notice was given to the petitioners and hence the said order of extending the detention period beyond 90 days is invalid in law. He further submitted that before considering the report of the Public Prosecutor, the learned Sessions Judge ought to have give notice to the accused, but in this case, no notice was given to the petitioners and hence the said order of extending the detention period beyond 90 days is invalid in law. He further submitted that since the said order of extending the detention period beyond 90 days is invalid, after expiry of 90 days, i.e., on 14.09.2019 as per Section 167 (2) of Cr.P.C., an indefeasible right is accrued to the petitioners for seeking default bail. He further submitted that by exercising the said right, the petitioners have filed a bail petition under Section 167(2) of Cr.P.C., on 01.11.2019, but the same has been returned by the learned Sessions Judge. 9. The learned counsel for the petitioners has further submitted that a Division Bench of this Court in Thangaraj @ Thamizharasan Vs. State Rep. By the Deputy Superintendent of Police, National Investigation Agency, Hyderabad (Camp at Puducherry) (2017) 3 MLJ (Crl) 641 has held that even if the bail petition filed under Section 167 (2) of Cr.P.C., is returned by the Sessions Court, the filing of the said petition can be taken as that the accused has exercised the indefeasible right of seeking default bail and therefore, he prayed to set aside the order passed by the learned Sessions Judge, Coimbatore in Crl.MP.No.3138 of 2019 dated 09.09.2019. 10. The learned counsel for the petitioners in support of his contentions, also relied upon the following decisions: (1) Sanjay Kumar Kedia alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau and another (2009) 17 SCC 631 ; (2) Sayed Mohd. Ahmad Kazmi Vs. State (Government of NCT of Delhi) and Others (2012) 12 SCC 1 ; (3) The State of Maharashtra Vs. Surendra Pundlik Gadling & Ors (Criminial Appeal No.264 of 2019 on the file of the Hon'ble Supreme Court dated 13.02.2019. 11. Per contra, the learned Additional Public Prosecutor has submitted that a Division Bench of this Court in Thangaraj @ Thamizharasan Vs. State Rep. By the Deputy Superintendent of Police, National Investigation Agency, Hyderabad (Puducherry) (cited supra), relying upon the decisions of the Hon'ble Supreme Court in Sanjay Kumar Kedia alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau ad Another (cited supra) and Sayed Mohd. Ahmad Kazmi Vs. State Rep. By the Deputy Superintendent of Police, National Investigation Agency, Hyderabad (Puducherry) (cited supra), relying upon the decisions of the Hon'ble Supreme Court in Sanjay Kumar Kedia alias Sanjay Kedia Vs. Intelligence Officer, Narcotics Control Bureau ad Another (cited supra) and Sayed Mohd. Ahmad Kazmi Vs. State Government of NCT of Delhi and others (cited supra) has granted bail under Section 167(2) of Cr.P.C., but in the appeal filed by the other co-accused persons, another Division Bench of this court in Thiruselvam and others Vs. State rep. By Deputy Superintendent of Police National Investigation Agency, Hyderabad (Camp at Puducherry (2018) 3 MLJ (Crl) 303 has distinguished the aforesaid decisions of the Hon'ble Supreme Court and following another decision of the Hon'ble Supreme Court in Rambeer Shokken Vs. State (NCT of Delhi) (2018) 2 MLJ (Crl) 282 (SC) disapproved the decision in Thangaraj @ Thamizharasan Vs. State, Rep by the Deputy Superintendent of Police, National Investigation Agency, Hyderabad (Camp at Puducherry) (cited supra). 12. The learned Additional Public Prosecutor has further submitted that the requirement of a written notice of the accused before consideration of the report of the Public Prosecutor as insisted in Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors (1994) 4 SCC 602 has been whittled down by a Constitution Bench of the Hon'ble Supreme Court in Sanjay Dutt Vs. State through CBI. Bombay, (1994) 5 SCC 410 : 1994 SCC (cri)1433 to hold that no written notice giving reasons therein need be given to the accused and that it will be sufficient if the accused is produced before the court and informed that the question of extension of the period of detention is being considered. 13. The learned Additional Public Prosecutor has further submitted that the District Public Prosecutor in his report has stated compelling reasons and considering the same, the learned Sessions Judge, has passed the order extending the detention period. He further submitted that even assuming that the impugned order is invalid, unless the petitioners exercised the said right of seeking default bail, they cannot question the impugned order. He further submitted that as per the Explanation – I of clause (c ) of Proviso to sub-section (2) of Section 167 of Cr.P.C not withstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail. He further submitted that as per the Explanation – I of clause (c ) of Proviso to sub-section (2) of Section 167 of Cr.P.C not withstanding the expiry of the period specified in paragraph (a) the accused shall be detained in custody so long as he does not furnish bail. He further submitted that the petitioners have not challenged the order of the Sessions Judge dated 01.11.2019 returning the bail petition filed under Section 167(2) of Cr.P.C., So, as on date, no bail petition is pending under Section 167(2) Cr.P.C and as such, the petitioners cannot challenge the impugned order. He further submitted that now charge sheet has been filed and hence the petitioners have to file bail petition seeking regular bail and therefore this Revision Petition has become in fructuous. 14. The learned Additional Public Prosecutor has further submitted that the Sessions Court has extended the detention period beyond 90 days based on the powers conferred to it under Section 43-D (2) (b) of the U.A.Act. He further submitted that as per Section 2(d) of the U.A.Act, the expression 'Court' includes a Special Court constituted under Section 11 or under Section 22 of the National Investigation Agency Act, 2008 (for short 'the NIA Act'). He further submitted that under Section 22 (1) of the NIA Act, the State Government is empowered to constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the schedule. He further submitted that until a Special Court is constituted by the State Government, the jurisdiction conferred by the NIA Act on the Special Court is to be exercised by the Court of Session not withstanding anything contained in the Cr.P.C. He further submitted that as per Section 22 (3) of the NIA Act since the Court of Session has to follow the procedure provided under Chapter IV, as per Section 21(b) of the NIA Act only an appeal will lie against the judgment, sentence or order of the said court of session to the High Court and if any such appeal is filed, as per Section 21 (2) of the NIA Act, the same shall be heard by a Division Bench and hence he requests to post this matter before the Division Bench which is taking up the criminal appeals. In support of his contentions, he relied upon the decision in State of Andhra Pradesh through I.G. National Investigation Agency Vs. Md. Hussain @ Saleem (Crl.MP.Nos.17570 & 17571 of 2013 in Spl.Leave Petition (Criminal) Nos. 7375 /2012 & 9788/2012 on the file of the Hon'ble Supreme Court dated 13.09.2013) 15. The learned counsel for the petitioners by way of reply has submitted that in view of the order passed by a Division Bench of this court in Crl.A.Nos.243, 340 and 524 of 2015 dated 01.09.2015 only a Revision will lie against the order passed by the Sessions Judge extending the detention period beyond 90 days and hence the Revision will lie only before a Single Judge. 16. As per Section 43-D (2) of the U.A. Act, two more provisions have been added to Section 167 (2) Cr.PC after the proviso thereto. The first proviso added by Section 43-D (2) (b) of the U.A Act reads thus:- “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.” The expression 'Court' in the above proviso can only mean a court as defined under Section 2(d) of the U.A. Act. 17. Section 2 (d) of the U.A.Act defines the 'Court' as follows: “court” means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a special court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008” 18. Under the NIA Act, the Central Government is given the power to constitute a Special Court under Section 11 thereof and the State Government is given the power to constitute a Special Court under Section 22 thereof. The High Court of Kerala, in Ashruff Vs. Under the NIA Act, the Central Government is given the power to constitute a Special Court under Section 11 thereof and the State Government is given the power to constitute a Special Court under Section 22 thereof. The High Court of Kerala, in Ashruff Vs. State of Kerala, 2011 Crl.L.J 1021 (Ker), took a view that the reference to Section 21 in Section 2(1) (d) of the U.A.Act was a typographical error and that the same should be read as Section 22. 19. The State Government of Tamilnadu by the G.O.Ms.No.534, Home (Courts II) Department dated 5th August, 2014 constituted a Special Court at Chennai (Poonamallee) in exercise of the powers conferred by Section 22 (1) of the NIA Act for the trial of the eight cases, mentioned therein. Challenging the said G.O, a batch of writ petitions have been filed vide in A. Beema Dowlath Vs. The State of Tamil Nadu (WP.Nos.28468 of 2014, batch) wherein a Single Judge of this Court by a common order dated 09.04.2015 in para-39 has held as follows:- “39. Therefore, the Scheme of the Act, as found in Chapters III and IV, makes it crystal clear that the first contention of the petitioners cannot hold water. It is not necessary that the investigation by the National Investigation Agency is a sine qua non for the trial of the scheduled offences by a Special Court. Since the National Investigation Agency has an option under Section 7(b) to transfer the case to the State Government for investigation and trial and also since Section 22(2)(ii) makes it clear that the reference to "Agency" appearing in Section 13(1) should be construed as a reference to the Investigation Agency of the State Government, it is clear that a Special Court could be constituted by the State Government under Section 22(1), even in cases where the Investigation Agency was only that of the State Government. Hence, the first contention of the petitioner deserves to be rejected.” 20. After holding so, the learned Single Judge went on to quash the aforesaid G.O on the ground that the definition in Section 2 (1) (d) of the U.A. Act does not include a Special Court constituted under Section 22 of the NIA Act. As against the quashing of the said G.O, the State Government has filed appeals vide ., The State of Tamilnadu and Others Vs. As against the quashing of the said G.O, the State Government has filed appeals vide ., The State of Tamilnadu and Others Vs. S. Tharvees Maideen and Others (WA.Nos.857 to 861 of 2015) wherein a Division Bench of this Court by the common Judgment dated 16.10.2015 while setting aside the order of the learned Single Judge to the extent of holding the constitution of the special court as without sanction of law has observed in paragraph Nos.32 to 34 as follows: “32. By the Amendment Act 34 of 2008, the term 'Special Court' derives its meaning from the definition as prescribed under Section 2(1)(h) of the NIA Act. The Special Court is defined as a Court constituted either under Section 11 or Section 22 of the NIA Act. Thus, Section 22 of the NIA Act empowers the State Government to constitute a Special Court for the trial of offences under any or all the enactments specified in the schedule to the NIA Act. There is no dispute that the offences punishable under the provisions of the UA Act, as amended by Act 34 of 2008, was a specified act under the said schedule. Considering the legislative intent and the purpose sought to be achieved by the enactment i.e., the UA Act as well as the NIA Act, it is manifest that the intention of the legislature is luculent clear to confer power on the State Government under Section 22 to constitute a Special Court for trial of offences specified for offences punishable under the UA Act. Obviously, mentioning of Section 21 of the NIA Act in the definition clause, viz., Section 2(1)(d) of the UA Act was an error, inasmuch as under Section 21, no power is conferred on the State or under any other authority to constitute a Special Court. As aforestasted, the provisions of Section 21 of the NIA Act contemplate appellate jurisdiction against any judgment, sentence or order not being an interlocutory order of a Special Court to the High Court, both on facts and law. Under sub-section (3) of Section 13 of the NIA Act dealing with the jurisdiction of Special Courts, the power has been conferred on the Supreme Court or the High Court, as the case may be, to act under the said section on the application of the Central Government or the party interested. Under sub-section (3) of Section 13 of the NIA Act dealing with the jurisdiction of Special Courts, the power has been conferred on the Supreme Court or the High Court, as the case may be, to act under the said section on the application of the Central Government or the party interested. The said sub-section cannot be read to be empowering for constitution of a Special Court by the Central Government or the State Government. 33. Before amendment by Act 34 of 2008, the definition of 'the Court' under Section 2(1)(d) of the UA Act specified a criminal court having jurisdiction, under the Code, to try offences under the said Act. The NIA Act came into force in 2008, wherein, a special Court was defined under Section 2(1)(h) as a Special Court constituted under Section 11 or, as the case may be, under Section 22. As a sequel, the definition clause under Section 2(1)(d) of the UA Act was amended by inserting the words 'and includes a Special Court constituted under Section 11 or under Section 21 of the National Investigation Agency Act, 2008 (34 of 2008)'. 34. On a plain reading of the aforestated insertion made in the definition clause, it is eloquent that a Special Court as defined in Section 2(1)(h) of the NIA Act was included. Ergo, we are of the considered opinion that Section 21 was mentioned in lieu of Section 22, erroneously, in the definition clause of the UA Act, viz., Section 2(1)(d). In view of the factual matrix and analysis hereinabove, we scarcely have any hesitation to hold that the impugned Government Order in G.O.Ms.No.534, Home (Courts II) Department dated 5th August, 2014, constituting the Special Court at Poonamallee under the provisions of the NIA Act is proper, legal and valid.” 21. From the aforesaid decision of the Division Bench, it is clear that the term “Special Court” derives its meaning from the definition as prescribed under Section 2 (1) (h) of the NIA Act. As per the said definition “Special Court” means a Special Court constituted under Section 11 or Section 22 of the NIA Act. It is also clear that the Section 22 of the NIA Act empowers the State Government to constitute a Special Court for the trial of offences under any or all the enactments specified in the schedule to the NIA Act. It is also clear that the Section 22 of the NIA Act empowers the State Government to constitute a Special Court for the trial of offences under any or all the enactments specified in the schedule to the NIA Act. It is also clear that Section 21 of the NIA Act was mentioned in lieu of section 22 of the NIA Act, erroneously, in the definition clause viz. Section 2 (1) (d) of the U.A.Act. 22. It was brought to the notice of this court that the State Government has not constituted any special court in the State of Tamilnadu in exercise of its powers under Section 22 of the NIA Act except the court which was constituted at Chennai (Poonamallee) vide G.O.Ms.No.534, Home (Courts-II) Department dated 05.08.2014 for the trial of the eight cases mentioned therein. In the case on hand, the investigation has been conducted by the Assistant Commissioner of Police, Law and Order, South, Coimbatore City (State Investigation Agency). 23. Section 22 of the NIA Act reads as follows: “22. Power of State Government to constitute Special Courts.— (1) The State Government may constitute one or more 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 constituted 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 sub-section (1) of section 13 shall be construed as a reference to the “investigation agency of the State Government”; (iii) reference to “Attorney-General 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 constituted by the State Government under subsection (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 constituted 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.” 24. Thus, under Section 22 (3) of the NIA Act, until a Special Court is constituted by the State Government, the jurisdiction conferred by the NIA Act on the Special Court is to be exercised by the Court of Session not withstanding anything contained in the Cr.P.C. Such jurisdiction is to be exercised by the Sessions Court for the trial of offences under any or all the enactments specified in the schedule to the NIA Act. There is no dispute that the offences punishable under the provisions of the U.A Act was a specified Act under the said schedule and therefore, till the Special Court is constituted by the State Government, it is the Sessions Court within the limits of which the offences were committed, which has to try the offences. The Court of Session has to follow the same procedure which is laid down for the Special Court. Under Chapter IV of the NIA Act. 25. Under Section 16 (1) of the NIA Act, the Special Court is empowered to take cognizance of the offences without a committal. Since the court of Session is also to follow the same procedure, that court is also empowered to take cognizance of the offences without a committal. Thus, in the case of an offence punishable under the U.A.Act, while it is permissible to produce the accused for the purpose of first remand before the nearest Magistrate (whether has jurisdiction or not to try the offence), the extension of remand can be ordered only by the Special Court/Sessions Court which alone is competent to try the offence. 26. Only on the said premise, in this case, it appears that the learned Sessions Judge of the Coimbatore District has extended the remand for the petitioners periodically. The petitioners have not challenged the remand extension orders passed by the learned Sessions Judge upto 90 days. Through this Revision the petitioners have challenged the remand extension order passed by the learned Sessions Judge beyond 90 days. The petitioners have not challenged the remand extension orders passed by the learned Sessions Judge upto 90 days. Through this Revision the petitioners have challenged the remand extension order passed by the learned Sessions Judge beyond 90 days. Even in this Revision, they have not challenged the said remand extension order on the ground that he has no jurisdiction to pass such an order. On the contrary, they challenged the said order on the ground that the Public Prosecutor has not stated in his report any compelling reasons for extending remand beyond 90 days and also on the ground that the learned Sessions Judge has not stated any valid reason for extending the remand beyond 90 days. Therefore, it is clear that the petitioners themselves have conceded that the learned Sessions Judge has extended the remand upto 90 days and also beyond 90 days only by exercising the power under Section 22 (3) of the NIA Act. 27. Since as per Section 22 (2) of the NIA Act, the provisions of Chapter IV of the NIA Act shall apply to the Special Courts constituted by the State Government, the said provisions will apply to the Court of Session also until a Special Court is constituted. Therefore, Section 21 of the NIA Act will apply automatically. As per Section 21 of the NIA Act not withstanding anything contained in the Cr.P.C., an appeal shall lie from any judgment, sentence or order, of a special court to the High Court and the said appeal shall be heard by a bench of two Judges of the High Court. Since Special Court is not constituted to the Coimbatore Sessions Division, the provisions of Section 21 shall apply to the order passed by the learned Sessions Judge, Coimbatore. 28. In Crl.A.Nos.243, 340 and 524 of 2015 considering the counter filed by the Central Government that since the State Government has already filed charge sheet, it has not taken up the matter for investigation, a Division Bench of this court by the order dated 01.09.2015 has held that the provisions of the NIA Act will not attract and that the bail application has to be posted before a Single Judge of this Court. Further, in that case, the powers of the State Government to constitute a Special Court under the NIA Act was not at all dealt with. Further, in that case, the powers of the State Government to constitute a Special Court under the NIA Act was not at all dealt with. But in view of the latest decision of another Division Bench of this Court in the State of Tamilnadu and Others Vs. S. Tharvees Maideen (cited supra) under Section 22(1) of the NIA Act, the State Government is empowered to constitute a Special Court, even in cases where the Investigation Agency was only that of the State Government. Once it is held that the State Government is empowered to constitute a Special Court under the NIA Act and until the said Special Court is constituted, the Court of Session shall have all the powers and follow the procedure provided under the Chapter IV of the NIA Act, then automatically Section 21 of the NIA Act will apply. Hence, the Registry is directed to convert this Criminal Revision as Criminal Appeal and post the matter before a Division Bench.