Authored by: Joseph Punnen
Date of Judgement: 20 October, 2021
Bench: A full judge bench led by Justice D.Y. Chandrachud
Court: Supreme Court of India
Citation: Criminal Appeal No 1165 of 2021
Brief overview of the case:
The appellant of the case had filed a petition before the High Court of Bombay to challenge the order declared by the Additional Sessions Judge (ASJ), Nanded. The case was taken up to the Supreme Court to hear the two appeals which arose from a judgement dated 5 July 2018 of a Division Bench of the High Court of Judicature at Bombay.
Background of the case:
In the subsequent case of Naser Bin Abu Bakr Yafai vs. Council vs. The State of Maharashtra & Anr., the respondent was Naser Bin Abu Bakr Yafai who was registered under Sections 120-B and 471 of the Indian Penal Code 1860 read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 19673 and Sections 4, 5 and 6 of the Explosive Substances Act 1908.
The case was registered against two persons,
(i) Naser Bin Abu Bakr Yafai (the appellant) and
(ii) Farooq (who’s currently residing in Syria).
The case was based on the fact that Naser Bin Abu Bakr Yafai was in contact with the members of the Islamic State/Islamic State of Iraq and Syria/ Islamic State of Iraq and Levant/Daesh through internet and these are banned organizations deemed by the United Nations as well as the Indian Government.
It was alleged that the appellant was planning to assist Farooq in constructing a bomb/IEDs which would be later used to blast during the month of Ramzan. The Anti-Terror Squad (ATS) has arrested four people,
namely
(i) Naser Bin Abu Bakr Yafai;
(ii) Mohammad Shahed Khan;
(iii) Iqbal Ahmed; and
(iv) Mohammad Raisuddin for their alleged links.
The Government of Maharashtra designated the Chief Judicial Magistrate, Nanded as a Court of remand and the Court of Additional Sessions Judge, Nanded as a Special Court to try the cases. Seeing the gravity of the case, the Central Government has directed the National Investigation Agency (NIA) to take over the case, under Section 6(4) of the National Investigation Agency Act 2008 on 8 September 2016.
However, ATS Nanded has continued their investigation and has filed further actions against the accused under the UAPA, and ATS Nanded handed over the case to the NIA on 8 December 2016. This has prompted the prime accused Naser Bin Abu Bakr Yafai filed an application before ASJ Nanded, stating that the offences carried out against him are under the UAPA which is under the NIA Act (2008), and therefore the CJM, Nanded had no jurisdiction in this regard, and he further went on to say that ASJ, Nanded was not a “Court” as established under the Sections 11 or 22 of the NIA Act (2008). His application was struck down by ASJ, Nanded and he further filed for a criminal writ petition before the High Court of Judicature at Bombay to challenge the order of the ASJ, Nanded and the Court has dismissed his petition. Thus, the case was taken up by the Supreme Court to clear the brevity regarding it.
Issues:
1) Whether “Special Court” as mentioned in Section 2(h) of the NIA Act (2008), means a Special Court as stated under Section 11 of the NIA Act (2008).
2) When the Union Government has asked the NIA to take over, doesn’t the jurisdiction of ATS Nanded end
3) Since the FIR was re-numbered by the NIA Mumbai on 14 September 2016, ATS Nanded continued to do the investigation
4) As all offences are punishable under the UAPA, and are considered as scheduled offences under the NIA Act (2008), thus CJM Nanded is divested of their jurisdiction
Arguments:
Following are the contentions made by both parties:
Contention on behalf of respondent-
1.The respondent has stated that, till the NIA takes up the case, it would be the duty of the investigating officer to continue with the investigation according to the Sub-Section (7) of Section 6 of the NIA Act (2008).
2.The respondent has also argued that based on Section 13 of the NIA Act (2008), every scheduled offence which is investigated by the “Agency”, would be tried by the Special Court within the local jurisdiction. As states in Section 2(a), the “Agency” refers to the NIA, and as a result there won’t be any limits to any Court until the s the scheduled offence is investigated by the NIA.
Contention on behalf of Appellant-
1.The appellant questions the term of “Special Court” and calls for a clear-cut clarity before giving out the judgements.
2.Upon the issuance of direction from the Union Government under sub- Section (4) or sub-Section (5) of Section 6, neither the State Government nor the Investigating Police Officer can continue with the investigation. It must be transferred to the NIA.
3.The appellant contents that, despite the order under Section 6(4), the ATS Nanded continued with their investigation and filed a case in breach of the provisions of sub-Section (6) of Section 6.
4.Since the UAPA comes under the NIA Act (2008) as a scheduled offence, it would be outside the jurisdiction of the CJM, Nanded.
Explanation
There appears a controversy regarding the interpretation of Section 6 of the NIA Act (2008). Upon careful scrutiny of the entire Act, it can be observed that, upon the instruction from the central government, the state government as well as the investigating police officer are not to proceed with the investigation and their duty is to transfer the entire documents and records to the NIA. Moreover, it is the duty of the investigating officer to continue with the investigation till the NIA takes up the case based on Section 6(7). Until the NIA takes up, the state government has power to investigate and prosecute any scheduled offences.
Verdict
The Hon’ble Supreme Court upheld the orders passed by the High Court on 5 July 2018, and affirmed that with Section 6(7), the ATS Nanded was allowed to continue its investigation until the NIA Mumbai actually took up the investigation.
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