TaxTMI 
TaxTMI 
2021 (10) TMI 1442
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....from a judgment dated 5 July 2018 of a Division Bench of the High Court of Judicature 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 t....
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....roceedings to the ASJ, Nanded since it was not a "Court" established under Sections 11 or 22 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 201....
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....s not a party to the proceedings before the Bombay High Court. B Submissions 13 The SLPs which invoke the jurisdiction 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....
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....inal statutes of the utmost severity, and there is a statutory obligation upon the NIA and the State Police Agency to collect papers immediately and transmit them to the NIA, respectively; (v) In the alternative, 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 u....
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....IA Mumbai intimated the ATS Nanded to transfer the case records, following which on 8 December 2016, the papers and records were transmitted; and (iii) While construing the provisions of the NIA Act, which deals with serious offences bearing on national security, no vacuum can be allowed to exist in the investigation. 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....
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....expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, 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 shal....
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....oceed with the investigation; and (b) the relevant documents and records must be transmitted to the NIA forthwith (sub-Section (6) of Section 6); (viii) By way of abundant caution ("for the removal of doubts"), sub-Section (7) of Section 6 contains a declaration that till the NIA "takes up the investigation of the case", it shall be the duty of the office in-charge of the police station to continue the investigation (sub-Section (7) of Section 6); (ix) The provisions of sub-Sections (6) and (7) of 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 investig....
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....e of Section 10 indicates that unless there is a contrary provision in the NIA Act, nothing contained in it would affect the powers of the State government to investigate and prosecute any scheduled offence or other offences under any law for the time being in force. Hence, unless the power which is entrusted to the State government by Section 10 to investigate (and prosecute) a scheduled offence under the NIA Act is taken away by a provision of the same statute, that power is preserved by Section 10. 27 Therefore, what emerges is that upon the issuance of a 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....
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....nstrued as references to State Government; (ii) reference to "Agency" in sub-section (1) of Section 13 shall be construed as a reference to the "investigation agency of the State Government"; (iii) reference to "Attorney-General for India" in sub-section (3) of Section 13 shall be construed as reference to "AdvocateGeneral of the State". (3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the 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 gov....
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.... and (7) of Section 6, what emerges is that the ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actually took over the investigation from it. Therefore, we must now determine when did the NIA Mumbai actually commence the investigation in the present case. 34 In order to appreciate when the NIA Mumbai began its investigation, we must first understand the meaning of the term. A three Judge Bench of this Court in H N Rishbud and Inder Singh v. State of Delhi [(1955) 1 SCR 1150] ("H N Rishbud") outlined the various steps of an investigation under the CrPC, while noting that investigation begins once the police receives 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 offi....
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....gation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under Section 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details. Thus, under the Code investigation consists generally of the following steps: (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 wh....
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....ur observed: "11...Section 2(h) CrPC defines "investigation" and it includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It ends with the 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 filing of a charge-sheet under Section 173 [see State of U.P. v. Bhagwant Kishore Joshi [AIR 1964 SC 221 : (1964) 1 Cri LJ 140] , AIR (para 8) and H.N. Rishbud v. State of Delhi [AIR 1955 SC 196 : (1955) 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....
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....hin the mandate of sub-Section (7) of Section 6 of the NIA Act. The said provision is clarificatory in nature so as to remove any doubt about the duty of the officer in-charge of the police station to continue the investigation till the 'Agency', i.e., the NIA Mumbai in the instant case, took up the investigation on receipt of the case papers. Therefore, the continuation of the investigation, and the filing of the charge-sheet upon its conclusion, by the ATS Nanded was in terms of the statutory mandate under Section 6(7) of the NIA Act. E CJM, Nanded's jurisdiction for remand and committal to trial 40 The second ground which has been urged on behalf of the appellants is that 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 th....
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....ort vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor [AIR 1944 Privy Council 73] and Lumbhardar Zutshi v. King [AIR 1950 Privy Council 26] . These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference 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 r....
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....ation up to 180 days and then commit the case to the Court of Sessions. In this backdrop, Justice Rohinton F Nariman, speaking for the three Judge Bench, held that a notification by the Government of Punjab had been issued under Section 22 for setting up Special Courts within the State of Punjab on 10 June 2014. After adverting to Sections 13(1) and Section 22(2) of the NIA Act, the Court observed: "25. When these provisions are read along with Section 2(1)(d) and the provisos in Section 43-D(2) of the UAPA, the scheme of the two Acts, which are to be read together, becomes crystal clear. Under the first proviso in Section 43- D(2)(b), the 90-day period indicated by the first proviso to Section 167(2) of 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 provi....
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....ary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgment has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial, inter alia, upon a police report of such facts." (emphasis supplied) The above narration would indicate that the power to extend the 90 days period, indicated by the first proviso to Section 167(2) of the CrPC, up to a maximum of 180 days was vested with "the Court". "The Court", read with the definition contained in Section 2(1)(d) of the UAPA, was held to refer to the Special Court constituted under Section 22 of the NIA Act. Hence, this 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 custo....
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....cy. 25.2. The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecution before the court; or filing of the charge-sheet during the interregnum when challenge to the rejection of the bail application is pending before a higher court. 25.3. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge-sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to 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 bai....
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....ent has not established Special Court under Section 22 National Investigation Act, 2008 at Nanded." Hence, the principle enunciated by this Court in Bikramjit Singh (supra) would not apply to the present case since there existed no Special Courts in the State of Maharashtra designated under Section 22 of the NIA Act (since the investigation was being conducted by the ATS Nanded, which had the jurisdiction over the case). 48 We have already held that the continuance of the investigation by the ATS Nanded in terms of Section 6(7) of the NIA Act, till the investigation had been taken up by the NIA Mumbai, was legitimate. A reading of Section 10 of the NIA Act indicates that there is no embargo on the State Investigating Agency to investigate a scheduled offence, which would 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 ....