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2021 (10) TMI 1442
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....ture at Bombay. 2 On 14 July 2016, an FIR [CR No 8 of 2016] was registered under Sections 120-B and 471 of the Indian Penal Code 1860 ["IPC"] read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 1967 ["UAPA"] and Sections 4, 5 and 6 of the Explosive Substances Act 1908 ["ES Act"] It was registered with the Anti-Terrorism Squad ["ATS"] at the Kala Chowki Police Station Mumbai on the basis of written information provided by Manik Vitthal Rao Bedre [A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra], against two persons: (i) Naser Bin Abu Bakr Yafai (the appellant in the first of the two appeals [Criminal Appeal No 1165 of 2021]); and (ii) Farooq (who was residing in Syria). The complaint alleged that the ATS had received source information that Naser Bin Abu Bakr Yafai was in contact through the internet with members of the Islamic State ["IS"] /Islamic State of Iraq and Syria ["ISIS"]/Islamic State of Iraq and Levant ["ISIL"]/Daesh, terrorist organizations banned by the United Nations and the Indian Government. He was alleged to have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh) in making bombs/IEDs to cause a bl....
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....of the NIA Act. On 14 November 2016, the ASJ, Nanded rejected Naser Bin Abu Bakr Yafai's application since, at that time, the NIA Mumbai had not taken over the investigation from the ATS Nanded and hence, the ATS Nanded had to continue with the investigation under Section 6(7) of the NIA Act. Therefore, the ATS Nanded, in light of the notifications issued by the Government of Maharashtra, was held to have correctly filed the charge-sheet before the CJM, Nanded who committed the case to trial before the ASJ, Nanded. 8 The appellant filed a criminal writ petition [Criminal Writ Petition No 5022 of 2017] before the High Court of Judicature at Bombay to challenge the order of the ASJ, Nanded. During the pendency of the petition, the NIA Mumbai filed an application [Criminal Application No 27 of 2017] under Section 407(2) of the CrPC before the High Court seeking transfer of the records and proceedings in the trial from the ASJ, Nanded to the NIA Special Court, Mumbai on the ground that the NIA Mumbai was taking up further investigation of the case. 9 By judgment and order dated 5 July 2018, a Division Bench of the High Court dismissed the writ petition filed by Naser Bin Abu Bakr Yaf....
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....urisdiction of this Court under Article 136 have been instituted essentially on two grounds. The first ground is 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 into a scheduled offence under the NIA Act. The second ground is 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. 14 The above submissions have been advanced during the course of arguments by Mr Farrukh Rasheed, Counsel appearing on behalf of Naser Bin Abu Bakr Yafai. Buttressing the submissions, Mr Rasheed urged that: (i) The expression "Special Court" as defined in Section 2(h) of the NIA Act is to mean a Special Court constituted under Section 11 or, as the case may be, under Section 22; (ii) Where the Central government issues a direction, upon the formation of an opinion that the offence is a scheduled....
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....ative, and even assuming that the State Police could have investigated, the charge-sheet filed before the CJM, Nanded is a nullity because it could have been filed only in the Special Court constituted under Section 22 of the NIA Act; and (vi) The committal proceedings are also a nullity because Section 16(1) empowers the Special Court to take cognizance of any offence without the committal of the accused to it for trial, and hence the charge-sheet ought to have been filed by the ATS Nanded in a Special Court in view of the provisions of Section 22. On the basis of the above submissions, Mr Gonsalves, urged that since the chargesheet was not filed within the stipulated period in a proper court entrusted with jurisdiction, the accused have an indefeasible right to bail under the provisions of Section 43D of the UAPA. 16 The above submissions have been contested by Mr K M Nataraj, Additional Solicitor General ["ASG"] appearing on behalf of the NIA. The ASG urged that: (i) Sub-Section (7) of Section 6 of the NIA Act declares, for the removal of doubts, that till the NIA takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to....
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....tigation. Hence, both the investigation by the ATS Nanded and the filing of the charge-sheet before the CJM, Nanded on 7 October 2016, were before the investigation was handed over to the NIA Mumbai. Therefore, there was no illegality and the appeals should be dismissed. 18 The rival submissions now fall for consideration. C Provisions of the NIA Act 19 The long title to the NIA Act elaborates upon its object, and the intent of Parliament in enacting the law. According to the long title, the NIA Act is: "An Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto." 20 Section 2(a) of the NIA Act defines the expression "Agency" to mean the "National Investigation Agency" constituted under Section 3. The expression "Scheduled Offence" is defined in Section 2(g) to mean offences sp....
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....it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts it is hereby declared that till the Agency takes up the investigation of the case it shall be the duty of the officer-in-charge of the police station to continue the investigation." 22 The salient aspects which emerge from the provisions of Section 6 need to be formulated at this stage. They are: (i) On the receipt and recording of informa....
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....f Section 6 must be read together and in harmony in order to fulfill the purpose and intent of the Parliament in a holistic manner; (x) The object and underlying purpose of sub-Section (7) is to ensure that there is no hiatus in the course of the investigation. Hence, 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; and (xi) 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, between the issuance of a direction under sub-Sections (4) or (5) of Section 6 and the actual taking up of the investigation by the NIA, there should be no hiatus in the investigation to the detriment of the interests of nationa....
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....direction under subSections (4) and (5) of Section 6, the State government and a police officer of the State government investigating the offence are not to proceed with the investigation and have to forthwith transmit the documents and records to the NIA (Section 6(6)) but equally, it is the duty of the officer in-charge of the police station to continue the investigation till the NIA actually takes up the investigation of the case (Section 6(7)). In other words, the power of the officer in-charge of the police station to continue with the investigation is denuded upon the issuance of a direction under subSections (4) or (5) of Section 6 and the NIA actually taking up the investigation of the case. Thus, 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. Until then, the power of the State government to investigate and prosecute any scheduled offence, by virtue of the provisions of Section 10, is preserved. 28 Sections 11 to 22 of the NIA Act are comprised in Chapter IV which is titled "Special Courts". Sub-Se....
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....e Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. (4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted." 32 Section 11(1) of the NIA Act empowers the Central government to constitute Special Courts "for the trial of scheduled offences". Under sub-Section (1) of Section 13, every scheduled offence which has been investigated by the NIA shall be tried only by the Special Court within whose local jurisdiction the offence was committed. The exclusive jurisdiction which is conferred on the Special Court to try a scheduled offence investigated by the NIA is amplified by the non-obstante provision which overrides the provisions contained in the CrPC. Section 22(1) empowers the State government to constitute Special Courts for the trial of offences under the enactments which have been specified in the Sche....
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....information that discloses the commission of a cognizable offence. The Court held that investigation encompasses the steps taken by the police to ascertain facts of the case and ends either with the filing of a charge-sheet or a closure report based on such facts. Justice Jagannadhadas held thus: "5...Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appear....
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.... (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173..." (emphasis supplied) 35 In Ramsinh Bavaji Jadeja v. State of Gujarat [(1994) 2 SCC 685], a two Judge Bench of this Court held that the question as to when an investigation commences has to be answered based upon the facts and circumstances of each case, with one of the factors to be considered being whether the actions of the police were guided by information which disclosed the commission of a cognizable offence. Justice N P Singh held: "7. From time....
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....) 1 SCR 1150 : 1955 Cri LJ 526] , SCR at p. 1157]." 37 From the above line of cases, what emerges is that an investigation commences upon the receipt of information by the police which discloses the commission of a cognizable offence. 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. 38 In the present case, the investigation was initiated by the ATS Nanded following the registration of the FIR on 14 July 2016, on receipt of source information that Naser Bin Abu Bakr Yafai was in contact over the internet with members of IS/ISIS/ISIL/Daesh. This led to the arrest of four accused persons, including Naser Bin Abu Bakr Yafai and Mohammad Shahed Khan. Thereafter, considering the gravity of the offence involved, the Central government directed the NIA Mumbai to take up further investigation of the case on 8 September 2016, exercising its powers under Section 6(4) of the NIA Act. The....
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....the submission of the charge-sheet before the CJM, Nanded and the order of committal are a nullity since the jurisdiction to investigate the offence was entrusted to the NIA Mumbai and the jurisdiction was vested with the Special Court. The continuation of the investigation by the ATS Nanded has been analysed above and it has been held to be in accordance with the mandate of Section 6(7) of the NIA Act. Now, sub-Section (1) of Section 11 empowers the Central government to constitute Special Courts "for the trial of scheduled offence". Sub-Section (1) of Section 13 provides that, notwithstanding anything contained in the CrPC, every scheduled offence investigated by the NIA shall be tried only by the Special Court. Hence, the exclusive jurisdiction of the Special Court to try a scheduled offence under subSection (1) of Section 13 attaches where the scheduled offence has been "investigated by the [NIA]". Further, sub-Section (1) of Section 16 is an enabling provision which empowers a Special Court to take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such offen....
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....eference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby." 42 We must of course clarify that in the present case, the Court is dealing with a situation where the investigation by the ATS Nanded was valid in terms of the provisions of Section 6(7) of the NIA Act. 43 However, a second argument which has been urged by the appellants is that 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 have been charged under the UAPA, which is a scheduled offence under the NIA Act. 44 In support of this proposition, reliance has been placed upon a judgment of a three Judge Bench of t....
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....f the Code can be extended up to a maximum period of 180 days if "the Court" is satisfied with the report of the Public Prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days. "The Court", when read with the extended definition contained in Section 2(1)(d) of the UAPA, now speaks of the Special Court constituted under Section 22 of the NIA Act. What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences. This becomes even clearer on a reading of Section 16 of the NIA Act which makes it clear that the Special Court may take cognizance of an offence without the accused being committed to it for trial upon receipt of a complaint of facts or upon a police report of such facts. What is equally clear from a reading of Section 16(2) of the NIA Act is that even though offences may be punishable with imprisonment for a term not exceeding 3 years, the Special Court alone is to try such offence - albeit in a summary way if it thinks it fit to do so. On a conspectus of the abovementioned provisions, Sectio....
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....his Court held that the Special Court constituted under Section 22 of the NIA Act had exclusive jurisdiction over every scheduled offence under the NIA Act investigated by the investigating agency of the State. 45 The judgment in Bikramjit Singh (supra) has been cited in another three Judge Bench in M Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [(2021) 2 SCC 485]. In that case, the appellant was arrested and remanded to judicial custody on 4 August 2018, for alleged offences punishable under the Narcotic Drugs and Psychotropic Substances Act 1985 ["NDPS Act"]. After the completion of 180 days from the remand day (31 January 2019), an application for bail was filed on 1 February 2019 under Section 167(2) of the CrPC before the Special Court for exclusive trial of cases under the NDPS Act. After the completion of the arguments of the appellant on the application for bail, the respondent-complainant filed an additional complaint on 1 February 2019, and sought the dismissal of the bail petition on the basis that the investigation was not complete and the charge-sheet had not been filed. The trial Court allowed the application for bail but this was set aside ....
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.... take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. 25.4. Notwithstanding the order of default bail passed by the court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the court, his continued detention in custody is valid." 46 The judgment in Bikramjit Singh (supra) has been followed in another recent decision by a three Judge Bench in Sadique v. State of Madhya Pradesh [Criminal Appeal No 963 of 2021, order dated 7 September 2021], where it was held that the appellants were entitled to default bail since the CJM, Bhopal had no jurisdiction to extend time for investigation under Section 43D(2)(b) of the UAPA, as such jurisdiction vested only with Special Courts. In Fakhrey Alam v. State of Uttar Pradesh [2021 SCC OnLine SC 532], a two Judge Bench of this Court distinguished Bikramjit Singh (s....
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....ld include offences under the UAPA. Consequently, till the investigation was taken up by the NIA Mumbai, the ATS Nanded was acting within jurisdiction in investigating the offence and filing the charge-sheet in the present case. Both of these took place prior to 8 December 2016, which is when the investigation was handed over to the NIA Mumbai. Admittedly, once the NIA Mumbai took up the investigation, the Special Court designated under Section 11 of the NIA Act would have sole jurisdiction to try the case. In the present case, the NIA Mumbai took up the investigation only on 8 December 2016 after receiving the records from the ATS Nanded, and thereupon it filed an application for transfer of the case from the ASJ, Nanded to the NIA Special Court, Mumbai constituted under Section 11 of the NIA Act. 49 However, till the NIA Mumbai took over the investigation, jurisdiction would reside with a Court which ordinarily had it. The Government of Maharashtra in exercise of powers conferred by Section 11 read with Section 185 of the CrPC issued a notification dated 26 August 2016 designating the CJM, Nanded as the remand court and the ASJ, Nanded as a Special Court for the trial of cases f....