Can Sessions Court be considered a Special Court? Bombay High Court asks State, NIA in Sudha Bharadwaj default bail plea

The Bombay High Court on Thursday asked the National Investigation Agency (NIA) and the State of Maharashtra to clarify whether a sessions judge not designated as a Special Court under the NIA Act could hear cases pertaining to scheduled offences under the Act..A Bench of Justice SS Shinde and NJ Jamadar raised the query while hearing the default bail application filed by Bhima Koregaon accused Sudha Bharadwaj assailing two orders passed by Pune Sessions Judges KD Vadane and RM Pande on the ground that they had no jurisdiction to pass orders in the case.The two orders under challenge were:Order granting NIA extension of time for filing of chargesheet; andOrder taking cognizance of the chargesheet against Bharadwaj and seven other accused..In the last hearing, the Court called for records from the Registry to verify the Right to Information (RTI) replies received from the Deputy Registrar of the High Court which stated that these judges had not been appointed as special judges under the NIA Act..Cannot allow Maharashtra government to file reply since matter substantially heard: Bombay High Court in Sudha Bharadwaj default bail plea.After perusing the records, the Court stated that they matched the records produced in the petition. The Bench directed the State to produce documentation, if any, which would point out that the judges in question had been assigned the case. .Additional Solicitor General Anil Singh, appearing for NIA, opposed the application by stating that the appointment of a special judge was from amongst sessions judges."It is not that sessions judges are not competent to decide (cases under) UAPA. Till proper notification to designate a Special NIA Judge is not issued, all matters heard by other session judges is vitiated is a wrong submission," ASG submitted. .The Court, however, replied that in the present case, a notification appointing a special judge seemed to have been issued.While stating so, the Court asked NIA to clarify on the interpretation of the amended Section 2(h) (definition of court) of the Unlawful Activities (Prevention) Act (UAPA) and whether the definition implied that trials under the UAPA were exclusive to Special Courts only..Advocate Yug Mohit Chaudhry, appearing for Bharadwaj, submitted that as per the NIA Act, notwithstanding anything mentioned in the Code of Criminal Procedure (CrPC), every scheduled offence was required to be tried by the Special Court only..He referred to NIA's affidavit which stated that the NIA Act would be applicable to the proceedings only after NIA took over the investigation of the case, which was done in the year 2020."So, if no Special Judge had been designated, then as per Section 22(3) of the NIA Act, the matters would go before the sessions court," Chaudhry said.Disagreeing with NIA's contention, he stated that while sessions judges are otherwise eligible to be special judges, they were not appointed as Special Judges as per procedure under the NIA Act. .Chaudhry submitted that if NIA's affidavit is accepted as correct, then as per the provisions of the UAPA, the proceedings would be as per CrPC and therefore the order taking cognizance of the chargesheet and issuance of process should have been heard by the concerned magistrate. .He further submitted that the notification appointing special judges had been sent to the public prosecutors and even to the judges who had themselves been appointed. In such circumstances, it was the responsibility of the State and the Investigating Officer to explain specifically why they had approached Judge Vadane and not the appointed judge. "What do you have to say about the fact that a Judge who is not special judge has passed an order?" Chaudhry queried..The matter will be heard next on July 15.