Don't bring in new jurisprudence that UAPA offences are to be tried by NIA Special Courts: State to Bombay High Court in Sudha Bharadwaj case

The Maharashtra government on Thursday submitted to the Bombay High Court that the Special Courts under the National Investigation Agency (NIA) Act are only to hear matters which are being investigated by the NIA, and that regular courts were otherwise competent to hear cases under the Unlawful Activities (Prevention) Act..Advocate General Ashutosh Kumbhakoni, appearing for the Maharashtra government, made submissions before a Bench of Justice SS Shinde and NJ Jamadar in 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.Opposing the application, Kumbhakoni submitted that "the case of the petitioner that 'the order of the sessions court is without jurisdiction' is fallacious." .His primary contention was that the Special NIA Court was constituted to hear those scheduled offences listed under the NIA Act which were being investigated by the NIA and not otherwise.Kumbhakoni elaborated that merely because a Special Court had been appointed by the Maharashtra government did not meant that the cases involving sections of the UAPA would get transferred to the Special Court without NIA taking over the investigation..The Bench had in an earlier hearing had enquired whether a sessions judge not designated as a Special Court under the NIA Act could hear cases pertaining to scheduled offences under the Act..Responding to that query, Kumbhakoni stated that as long as the investigation was not assigned to the NIA, the proceedings pertaining to the investigation continued before the regular courts. Referring to the amended Section 2 of the UAPA, he submitted that the intention of the legislature was to add Special Courts of the NIA Act along with regular criminal courts for hearing of UAPA offences..Additionally, he argued that Section 43-D (2) of the UAPA which modified the application of Section 167 of the Code of Criminal Procedure, removed the words 'Magistrate' (which was present in Section 167) and replaced it with the word 'Court'."Let us not bring in new jurisprudence that all UAPA offences are to be tried by special courts under NIA Act. The Act contemplates that there are scheduled offences, but NIA need not be brought in. Then they can work in conjunction with the State agency. And they can also take over the investigation and hand it back to the State," Kumbhakoni said, concluding his arguments for the day..He will continue his submissions on the next date of hearing which is on July 23, 2021.