Thread by @barandbench

#BombayHighCourt to continue hearing the default bail application filed by Bhima Koregaon accused, advocate Sudha Bharadwaj.

Hearing before Justices SS Shinde and NJ Jamadar in physical set up.

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Adv Yug Mohit Chaudhry asks if the Court had the records which the Court had enquired in the previous hearing.

Court says that the record matches with what is submitted in the petition.

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Court asks what the Supreme Court said in the issue pending before it.

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The matter being referred to by the Bench is this:

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https://twitter.com/barandbench/status/1413015481305374720?s=21

Court asks the Chief Public Prosecutor Aruna Pai to produce the records showing the permissions which may have been granted to the Sessions judge under question in the petition.

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Chaudhry continues with his submissions.

He refers to Section 11 of the NIA Act.

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Chaudhry refers to Section 22 and then asks the Court to read it with Section 11 (2) of the Act.

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Chaudhry: There is no doubt that Vadane was eligible to be appointed as special judges.
But there is a world of difference of being eligible to be a judge and actually being a judge.

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Chaudhry submits that section 13 also mentions that notwithstanding anything in the Code, every Scheduled offence shall be tried ONLY by the Special Court.

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Chaudhry: The district judge is appointed by the High Court and the special judge is appointed by the Central govt
Section 13 gives power of original jurisdiction to the court.

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Chaudhry: Judge Vadane was an additional judge. He could not have taken cognisance of the chargesheet unless specific instructions from the Principal District Judge.

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Court (to Chief PP): Show us any document through which PDJ gave powers to Vadane to hear the matter.

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Chaudhry refers to Section 194 of the CrPC: As Addl Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.

Chaudhry: This order by Judge Vadane, he took cognizance and then issued process. He could not have given powers to himself. It is not even the PDJ. It has to be through the CJ of HC with State govt.

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Court: So NIA took over the investigation in January 24, 2020.

Chaudhry: Yes before that it was Pune police. But it was a scheduled offence. It had to be tried by the NIA Court as per Section 13.

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Chaudhry: Even though NIA took over the investigation in 2020, the State police could investigate the scheduled offences as per the Act.
The investigation done is irrelevant.
The Scheduled offence has to be tried by the Special Court only!

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Chaudhry: Special Court is a creature of statute. It cannot be created by some order.

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Court (to Pai): there are documents which show that the special judges had been appointed in 2019 and then after that also.

Pai: I will answer.

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Chaudhry: Section 22 once again, besides the power of the special court and the special judges.

Under Section 22(3) there are powers given to the Sessions Court if there is no special court designated.

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Chaudhry: Now milords may see the copy of the notification appointing special judges for Pune.

Court: This copy is sent to Judge That, who was designated special judge.

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Chaudhry: The Chief PP of Pune court knew that a special judge had been appointed.

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Chaudhry: The DGP in Pune also submitted that the investigation had been taken up by NIA and only Special Court can try.

Court: The two orders in challenge are 2018 and 2019. NIA took over in 2020. But there were special judicial officers appointed prior to that.

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Chaudhry: I went through the notification and the question is how could the judge have heard the case before that.
Their IO must respond, how can he go to any judge. Can he go to whichever judge he wants!

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Chaudhry: The NIA brought about three changes in the landscape of criminal law.

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Chaudhry: The first is it created scheduled offences, which was not done before.
The NIA act changed that all UAPA offences went under scheduled offences triable by special court.

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Chaudhry: The other thing is creating special courts to try scheduled offences in original jurisdiction. It mentions appointment of special judges through a different mechanism.

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Chaudhry: It created NIA which has concurrent powers. It can work with or independent of the state police.

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Chaudhry: The Special Court is a creature of the NIA Act. It does not exist beyond the Act.

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Chaudhry: I can show you what happens when judgments are passed without jurisdiction. They are quashed.

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Chaudhry: According to the NIA affidavit NIA Act does not come in the picture till NIA takes over investigation.
I do not agree. What happens to orders passed without jurisdiction?

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Chaudhry: What do you have to say about the fact that a Judge who is not special judge has passed an order.

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Chaudhry: So NIA did not touch the case till the extension, till they took the investigation, so then who has the power? Then it goes as per the CrPC.

Court: In a Supreme Court judgement it was held that the special court is a sessions court. Please elaborate on that.

Chaudhry: But that is true because the Act states so.
Look at other acts, do those acts have original jurisdiction, do the judges have a special appointment procedure, the SC/ST Act and the TADA and POTA courts have no original jurisdiction.

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Court reads the amended act Section 2(h) for definition of the Special Court - a Court of Session designated as Special Court.

Chaudhry: Don’t read the amended act milords. Read the unamended act.

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Chaudhry: These are court of sessions not court of original jurisdiction.

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Chaudhry concludes his submissions.

Court asks ASG Anil Singh for NIA to make submissions.

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ASG: The very issue which is raised in the petition and which is argued is before the Supreme Court.
The issue raised therein I will show.

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ASG: My submission is that the judgment of Bikramjit Singh and Vidyadharan v. State of Kerala are both being considered.
Both judgments discussed of whether CJM is a special court.

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ASG: Offences under NIA constitute offences under UAPA. They concern the national security and are considered to be serious offences. The purpose for this act is to punish the offender.

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ASG: There has to be expeditious and early disposal of cases. Nothing is above national security.

The appointment of judges, public prosecutor.. Special judges are not different from sessions judges.

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ASG: It is not that the sessions judge is not competent to decide the UAPA Act. Till a proper notification is issued and the judge is not designated as NIA Court, all matters assigned to a sessions judge is vitiated ..this submission according to me is wrong.

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Court: Chaudhry’s submission is special judge had been appointed, he showed notifications. His submission is that the judge who passed the order was not designated special judge.

Court: He relied upon Section 2 of the UAPA Act amended after the NIA Act.
But if you read the definition, it says and includes a Special Court constituted under section 11 or under Section 22 of the NIA Act.

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Court: It does not give exclusive jurisdiction. It says criminal court having jurisdiction… So as per Chaudhry’s submission, if the special judge has no jurisdiction then it goes before the Magistrate. Get clarity on this.

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ASG and Pai seek time to respond to this query.

The matter is posted for hearing on next Thursday, again in physical hearing.

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