NIA Act | Special Court Must Transfer Case To Regular Criminal Court If No Scheduled Offence Is Found After Cognisance: J&K&L High Court
The Jammu & Kashmir and Ladakh High Court has held that where even after taking cognizance of offences, a Special Court finds that no scheduled offence is made out against the accused, the case must be transferred to the normal criminal court in terms of Section 20 of the National Investigation Agency Act, 2008.The Court clarified that the Special Court has no option but to exercise its...
The Jammu & Kashmir and Ladakh High Court has held that where even after taking cognizance of offences, a Special Court finds that no scheduled offence is made out against the accused, the case must be transferred to the normal criminal court in terms of Section 20 of the National Investigation Agency Act, 2008.
The Court clarified that the Special Court has no option but to exercise its power of transfer under Section 20 when the charge sheet does not disclose commission of any offence under the UAPA.
The Court was hearing a reference made by the learned Principal Sessions Judge, Kulgam, seeking guidance in a matter where the case file had been tossed between the Special Court (Designated under NIA) and the Sessions Court, arising out of an FIR registered for offences under various provisions including the UAPA, the Arms Act, and the RPC.
The bench of Justice Sanjay Dhar observed,
“... in a case where even after taking cognizance of offences, a Special Court finds that no scheduled offence is made out against the accused, the case as to be transferred to the normal Criminal Court. This is clear from the language of Section 20 of the NIA Act.”
In the instant case an FIR was registered for offences under Sections 147, 148, 149, 188, 336, 332, 302, 307, 427, 436, 511 RPC, 7/27 Arms Act, 3 PSS Act, 3/2 PPD Act and 13 ULAP Act. During investigation, four accused died. The investigating agency filed a separate challan against these four accused before the Special Judge (Designated under NIA), Kulgam, as offences under Sections 13, 20 and 38 of the UAPA were found established against them.
However, proceedings against them stood abated due to their death and a separate challan was filed against other accused before the Principal Sessions Judge, Kulgam, as no offences under UAPA were found established against them.
The Principal Sessions Judge, relying upon Essar Teleholdings Ltd. v. Registrar General High Court of Delhi, (2013) 3 SCC 744, and Section 223 CrPC, transferred the case to the Special Judge (NIA). The Special Judge observed that since the accused against whom UAPA offences were established had died and proceedings stood terminated, the case was required to be tried by the Sessions Judge. The file was returned.
Thereafter, the Sessions Judge again sent the charge sheet to the Special Judge. On March 12, 2026, the Special Judge, in exercise of power under Section 20 of the NIA Act, transferred the case back to the Principal Sessions Judge, Kulgam. The Principal Sessions Judge expressed disagreement and made the reference seeking guidance.
Court's Observation:
The Court examined Section 20 of the NIA Act, which provides that where after taking cognizance of any offence a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial to any court having jurisdiction under the Code, and the court to which the case is transferred may proceed with the trial as if it had taken cognizance of the offence.
The Court noted that in the present case, the charge sheet against the accused who are alive does not disclose commission of any offence under UAPA. Therefore, the court said that even if the Special Judge were to hold an inquiry, the only conclusion would be that none of the offences is triable by it.
The Court added that Section 14 of the NIA Act gives jurisdiction to a Special Court to try any other offence with which the accused may be charged at the same trial if the offence is connected with a scheduled offence. However, since no scheduled offence is made out against the living accused, Section 14 cannot be invoked to retain the challan, it explained.
The Court held that the only option available with the Special Judge was to exercise its power of transfer under Section 20 of the NIA Act, which he rightly exercised by passing a detailed order. The Court observed that the Principal Sessions Judge had misappreciated the facts and the legal position, resulting in the case being tossed from one court to another, with the inquiry not even completed despite the challan having been presented more than a year ago.
In view of these findings the Court returned the reference with a direction to Principal Sessions Judge, Kulgam, to proceed further in the matter in accordance with law and the legal position discussed.
Case Title: UT of J&K v. Sameer Ahmad Bhat & Ors.
Citation: 2026 LiveLaw (JKL)