Supreme Court: The 3-Judges Bench comprising of Dr. Dhananjaya Y. Chandrachud*, Vikram Nath, BV Nagarathna, JJ., clarified the conflicting relationship between the State Investigation Agencies and the NIA. The Bench stated,
“While the NIA Mumbai may have re-numbered the case file on 14 September 2016, it could not have taken the initial step of its investigation into the case till it had access to the case papers, which it only received from the ATS Nanded on 8 December 2016. Thus, the mere renumbering of the case filed by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation.”
The instant case dealt with a case registered under Unlawful Activities (Prevention) Act 1967 and Explosive Substances Act 1908. A complaint was registered with the Anti-Terrorism Squad alleging that the appellant had been planning to assist one Farooq (a member of IS/ISIS/ISIL/Daesh) in making bombs/IEDs to cause a blast during the month of Ramzan.
Findings of the High Court
The appellant had filed a petition before the High Court of Judicature at Bombay to challenge the order of the ASJ, Nanded contending that once the Central government entrusted the investigation to the NIA under Section 6(4) of the NIA Act, ATS Nanded had no jurisdiction to continue with the investigation. The appellant argued that since the offences under the UAPA are scheduled offences under the NIA Act, even if investigated by the State Investigating Agency, they would be exclusively triable by a Special Court constituted under the NIA Act and the CJM, Nanded had no jurisdiction to remand the accused persons and commit the case for trial before the ASJ, Nanded.
The High Court held that the ASJ, Nanded had jurisdiction to try the offences under the UAPA, even though they were scheduled offences under the NIA Act, until the investigation was entrusted to and taken over by the NIA, after which the Special Court constituted under Section 11 of the NIA Act would exclusively try such scheduled offences.
Noticeably, the controversy revolved substantially on the interpretation of Section 6 of the NIA Act. The Bench observed that while sub-Section (6) stipulates a two-fold requirement, that upon the issuance of a direction under sub-Sections (4) or (5) of Section 6 neither the State government nor the police shall proceed with the investigation and must transmit the documents and records to the NIA forthwith, sub-Section (7) imposes a statutory obligation on the officer in-charge of the police station to continue the investigation till the NIA actually takes over. The Bench observed, while enacting the provisions of sub-Section (7) of Section 6, the Parliament was conscious of the fact that an interlude may occur between the date of the issuance of a direction and the actual taking up of the investigation by the NIA, however it ensured there should be no hiatus in the investigation to the detriment of the interests of national security involved in the enactment of the legislation.
Thus, the Bench opined that both the issuance of directions under sub-Sections (4) and (5) of Section 6 and the NIA actually taking up the investigation of the case would result in the power of the officer in-charge of the police station being denuded.
Observation and Analysis
Whether the investigation conducted by the ATS Nanded after the NIA had renumbered the case lacked jurisdiction?
On a conjoint reading of sub-Sections (4), (5), (6) and (7) of Section 6, what emerged was that the ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actuallytook over the investigation from it. Therefore, the question before the Bench was when did the NIA Mumbai actually commence the investigation in the present case.
Holding that an investigation commences upon the receipt of information by the police which discloses the commission of a cognizable offence, the Bench clarified, however, the mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.
In the present case, the ATS Nanded filed the charge-sheet before the CJM, Nanded on 07-10-2016 (which was prior to even the letter of the NIA Mumbai dated 23-11-2016 for the handing over of the case records). Likewise, the CJM, Nanded took cognizance of the offence and committed the case to trial before the ASJ, Nanded on 18-10-2016.
Further, the NIA Mumbai intimated the ATS Nanded to transfer the case papers on 23-11- 2016, which were transferred on 08-12-2016. Therefore, the Bench held that though the NIA Mumbai had re-numbered the case file on 14-09-2016, it could not have taken the initial step of its investigation into the case till it had access to the case papers, which was on 08-12-2016.
Hence, opining that the mere renumbering of the case file by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation, the Bench held that the investigation conducted by the ATS Nanded prior to transferring papers was within the mandate of sub-Section (7) of Section 6 of the NIA Act.
Was the submission of the charge-sheet before the CJM, Nanded and the order of committal sans jurisdiction?
“The exclusive jurisdiction of the Special Court to try a scheduled offence under sub Section (1) of Section 13 attaches where the scheduled offence has been “investigated by the NIA”. However, this clearly would not affect either the antecedent investigation by the ATS Nanded prior to the NIA Mumbai having taken up the investigation or the submission of the charge-sheet as a logical consequence of the investigation which was conducted by the ATS Nanded.”
The second question was even if the ATS Nanded had the power to continue with its investigation and file a charge-sheet, it could only be before a Special Court under the NIA Act since the appellants had been charged under the UAPA, which is a scheduled offence under the NIA Act.
Noticeably, the Government of Maharashtra, in exercise of powers conferred by Section 11 read with Section 185 of the Code of Criminal Procedure -1973 had issued a notification designating the Chief Judicial Magistrate, Nanded, as a Court of remand and the Court of Additional Sessions Judge, Nanded, as a Special Court to try cases filed by the ATS Nanded and that no Special Court had been established by the State Government under Section 22 National Investigation Act, 2008, the Bench held that the chargesheet was rightly filed before CJM Nanded.
Hence, the Bench affirmed the impugned judgment and order of the High Court, holding that in accordance with Section 6(7), the ATS Nanded was not barred from continuing with its investigation till the NIA Mumbai actually took up the investigation. Further, it was held that we hold that the CJM, Nanded could have committed the case to trial before the ASJ, Nanded since they were the designated Courts for the ATS Nanded and no Special Court had been designated by the Government of Maharashtra under Section 22 of the NIA Act.
[Naser Bin Abu Bakr Yafai v. State of Maharashtra, 2021 SCC OnLine SC 950, decided on 20-10-2021]
Kamini Sharma, Editorial Assistant has put this report together
For the Appellants: Mr Farrukh Rasheed, Advocate and Mr Colin Gonsalves, Senior Counsel
For the State of Maharashtra: Mr K M Nataraj, Additional Solicitor General and Mr Rahul Chitnis, Standing Counsel
*Judgment by: Justice Dr. Dhananjaya Y. Chandrachud