Thread by @barandbench

#BombayHighCourt to continue hearing the default bail plea of #BhimaKoregaon accused Sudha Bharadwaj.

Hearing before Bench of Justices SS Shinde and NJ Jamadar.

#elgarparishad

Adv Yug Mohit Chaudhry appears for Bharadwaj.

ASG Anil Singh appears for NIA.

AG Ashutosh Kumbhakoni appears for Pune Police (Maharashtra government)

Chaudhry is continuing with his submissions.

He begins with the judgment in the case of Vikramjit Singh vs State Of Madhya Pradesh to argue that all scheduled offences come under the Special Courts.

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Chaudhry: Even if you read Section 16 of the NIA Act, you can see that this is the absolute position of law.

Chaudhry: The argument that the special court v magistrate court does not lie because in our case, there is a special court notified.

Chaudhry: When there is notification, the sessions court is as relevant.. Even the ilaqa magistrate has no meaning.

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Corrigendum - Chaudhry is reading from the judgment of BIKRAMJIT SINGH v. STATE Of PUNJAB — main.sci.gov.in/supremecourt/2…

Chaudhry: There is enormous difference in the power of the special court v. Sessions court.
The matter have to be assigned to sessions court, as opposed to special court.
There is difference between eligibility and appointment.

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Chaudhry: there are tonnes of lawyers eligible to be judges to HC, do they all become judges, no..

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Chaudhry: Both relied on High Court on point of powers of special courts.

Bahadur Kohra (Patna), Nasser (Bombay), Areeb (Bombay) and Akil Hussain (Delhi).

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Chaudhry: The holding of these judgments implicitly is over ruled. They command no authority whatsoever.
In face of Bikramjit they are legless.

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Chaudhry: Just a few days back, the Madras HC was seized of a judgment..
The same kind of facts as are in all HC judgments.

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Chaudhry: Now let us see Naseer’s judgment of this court.

casemine.com/judgement/in/5…

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Chaudhry: First they all adopt the argument that NIA Court will activate only when NIA takes over investigation.

I have an alternative argument.

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Chaudhry: Let us say I am wrong about applicability of the Bikramjit. Then the argument is that as per CrPC, the Magistrate court will come in, where does Sessions come in?

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Chaudhry: Then they have said that the sessions court has power to hear the cases as per the definition of court, because it has power.
But in the cases they have relied upon, the cases have come from the Magistrate Court. And these had been upheld by the Bombay HC.

Chaudhry : Now all the other cases, it is fine, but why are they not relying on Areeb..?
In Areeb, the day of extension was granted by another sessions judge who had charge since the appointed special judge was unwell.. That was different facts..

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Chaudhry: As for the Delhi HC case, in the absence of regular forces functioning due to pandemic, it was permitted for the alternate judge to hear the case. There was a notification to that effect.

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Chaudhry: In our own case, the default bail of Navlakha which was challenged in the high court and then upheld by Supreme Court, the order was passed by Special court. So where is this question of pre-trial and post-trial.

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Chaudhry: Why these courts have no jurisdiction and why only special court?
They said that the subsequent legal remand cures illegal remand.

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Chaudhry: But what we are saying is - jurisdiction. This is not that there is illegal and legal remand. We are arguing on jurisdiction which goes to the core of the case.

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Chaudhry: Jurisdiction of a court cannot be inference of logic. It depends on parliament’s intention. It is created depending on the nature of the offence.

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Chaudhry: Special POCSO cases, Courts for MLAs, MPs. etc..

There is no case, where courts are created depending on the character of the investigating agency. Because that will lead to chaos.
There is no statute created special CBI court. It goes before sessions court.

Chaudhry: CBI also works in concurrent ways just like NIA.
What I also submitted in erroneous way is that NIA creates scheduled offences. But the affidavit sets it right. It federalises offences.

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Chaudhry: in our case, it is their allegation that there was a plot against the Prime Minister. This was investigated for two years by the Pune and then taken over by NIA.

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Chaudhry: In the companion petition, NIA’s affidavit stated that they took over the investigation and it was not offered to them.

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Chaudhry gives the different approaches between CrPC and NIA Act.
The power of judges, the time to file appeal, etc, every thing is specified under the NIA.

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Chaudhry: Under CrPC, offences punishable with 10 yrs or more goes before the Sessions Court. Under NIA Act, every offence goes before the Special Court.

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Chaudhry: What is the difference between the same case being investigated by NIA and State police?
There is different outcome.. That has to be considered.

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Chaudhry on the arguments made in the trial court in this case where the State PP is telling the Court that it has jurisdiction under Section 22 of the NIA to try the case.

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Chaudhry: The PP knew that the special courts had been constituted.. This may be noted.

He reads this paragraph.

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Chaudhry: If all the acts in the schedule are to go before the special court, the parliament has given the power, the parliament can take it away.

Power of exclusive jurisdiction is given to a court, then can some other court take jurisdiction..

Chaudhry: Accused will choose one court, PP another and police another.. Total Chaos!

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Chaudhry: as for pending default bail application, the right expires when the chargesheet is submitted before the correct, right court. You cannot go before any court and say that defence’s right has expired. It has to be before right court.

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Chaudhry concludes his submissions.

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AG Ashutosh Kumbhakoni gives his rejoinder.

AG: I would not have been here for rejoinder but for two reasons.
I was told that Bikramjit Singh would not be relied upon, so I did not argue on that.
And second to clarify my submissions.

AG: I refrain from making comments on the lawyer but if there are comments coming, then I give back in multiples.
Then I want to point out, how to read a judgment. There is a ratio decided in a judgment, which not everyone may know.. or may have forgotten..

AG reads the Bikramjit judgment.

AG: You cannot read two sentences from one para, and two sentences from another para and say “balle balle” I have succeeded in freeing naxalite activities..

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AG: A small fact of a case, can make world of difference. I will point out a fact from Bikramjit which is not present in our case.

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AG is reading facts from the Bikramjit case

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AG: In Bikramjit case, the order of the ilaqa magistrate was set aside by the sessions court, which was not challenged. There was a default bail application which was rejected on the ground that a challan was filed. Then the HC said whatever it wanted to and then SC.

AG: I am pointing out that the facts of the Bikramjit case, this issue did not arise.

Court: But the High Court was considering the question of Section 167, and whether the Magistrate was to consider..
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AG: But it did not arise form the facts of the case.

Court: We are only in dialogue..

AG: I appreciate Court questions. With all respect, I do not like judges who do not ask question. Then we know what Is going on in the minds of the judges.

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AG: Bikramjit does not deal with Section 6, 7 of NIA or definition of court under UAPA.

Court: But the definition is mentioned in the Bikramjit.. To make it more clear..
What happens to the first part of that paragraph then?

AG: Yes but is that the ratio, and binding?

Court: Whenever we are in dialogue, even if advocates are in flow of arguments, they should take a pause.

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AG reads out the notification of the Punjab and Haryana government which specifically includes State police.

AG: On the merits of the case, milords may hold whatever they deem fit, but not because of Bikramjit.

Court: What we do is upto us. We are only hearing, no opinion yet.

AG: I feel obliged.

There is another issue. Reads from the compilation submitted by the State.

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AG: If there is a special court appointed, then the sessions court jurisdiction does not go away.
My learned friend cannot make irresponsible arguments..

Court: Just because he (Chaudhry) used the word irresponsible..

AG: I do not offend anyone, if someone does..

Court: Yes but in proportion..

AG: No in disproportion!!

Also, I am reiterating my submission, that the Special court will come into play ONLY after the NIA takes over investigation.

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AG: There cannot be separate of rules for us and for them.

Here I conclude my submissions. I am sorry for raising my voice.

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ASG Anil Singh begins his submission.

Court: Now he will bring it to normal..

Everyone laughs.

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ASG: I am clarifying my submission on the default bail dates. There was no valid default bail application. I am stating.
The period of house arrest of the accused cannot be included while calculating the chargesheet.

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ASG: The application was not valid, as it was not after the 90 days.

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ASG’s first submission is that the judgment in the case of Naseer Abu Bakr of this court was passed in 2018 after considering a full bench judgment of Patna HC. Since it laid down that the NIA Corut came into the picture only after NIA takes over investigation, it was binding.

ASG: the second submission is that the legislature’s amendment to the UAPA definition of Court under Section 21 and not 22. Hence the mistake if any was by the legislature and could not be presumed by the State police.

ASG: hence the act of approaching the Sessions Court was the only option remaining with the State government.

ASG concludes his submissions.
The Court reserves the matter for orders.