'Can The State Police Continue Once NIA Investigation Ordered By Central Govt? Are All UAPA Offences To Be Tried Exclusively By NIA Courts?' Supreme Court Reserves Judgment

The Supreme Court on Tuesday examined the contours of the phrase 'till the Agency (NIA) takes up the investigation of the case' in Section 6(7) of the NIA Act to ascertain till when the state investigation agency has the competence to continue the investigation after the central government has directed the NIA to investigate a scheduled offence.The Court also examined whether the offences under UAPA which are investigated by the state investigation agency are triable by the regular criminal courts having jurisdiction under the Cr.P.C. and whether it is only when the central government entrusts the investigation to the NIA that the jurisdiction of the criminal court shall stand excluded and the Special Court constituted under the NIA Act will get jurisdiction to try such scheduled offences.The bench of Justices D. Y. Chandrachud, Vikram Nath and B. V. Nagarathna was hearing the challenge to a July 2018 decision of the Bombay High Court dismissing the two-fold argument raised by the petitioner-accused before the High Court that since the central government had entrusted the investigation to the NIA, the Anti-Terror Squad, Mumbai had no jurisdiction to continue with the investigation. Secondly, the High Court also rejected the contention that the offences under UAPA being scheduled offences, even if investigated by the state investigation agency, are exclusively triable by the special court constituted under section 22 of the NIA Act and that the CJM, Nanded had no jurisdiction to remand the accused, to take cognisance and commit the case to the Special Court, ATS.The High Court had dismissed the writ petition, holding that the NIA would be deemed to have taken over the investigation only when the records of the case were received by it from the ATS and until then, the ATS was obligated to continue with the investigation. It also ruled that in the instant case, the ATS Mumbai had completed the investigation of the crime and filed the chargesheet in the Court of the CJM, Nanded even prior to taking over of the investigation by the NIA. Under the circumstances, as on the date of filing of the charge sheet, the provisions of NIA Act including the provision under Section 22 of the Act had no application.Consequently, the CJM, Nanded (designated Court ATS) had jurisdiction to remand the accused, take cognisance and commit the case to the Special Court, (ATS), Nanded.On Tuesday, Justice Chandrachud asked ASG K. M. Nataraj, for the NIA, to address the bench on the two claims made by the SLP petitioners- (1) Once the FIR was re-numbered or re-registered by the NIA, there was no jurisdiction with ATS, Mumbai to investigate or file the charge-sheet because the investigation by the NIA must be deemed to have been commenced once the NIA registered the FIR; (2) if it is a scheduled offence, only a special court can try the same and therefore, the High Court judges are wrong in saying that even in respect of a scheduled offence, the courts constituted under the Cr.P. C. can try the offence.The ASG began his submission, advancing, "They are seeking their relief on the ground of the incompetency of the investigating agency. On September 8, 2016, the matter was referred to the NIA by the central government. On September 14, 2016, NIA registered the FIR. On October 7, 2016, ATS filed the chargesheet. On October 18, 2016, court took cognisance and committed the matter to the special court. On November 23, 2016, for the first time, the NIA applied for the transfer of case. On December 8, 2016, papers are handed to the NIA"He took the bench through section 6, NIA Act, indicating that its sub-section (1) states that the officer in-charge of the police station is supposed to report to the state government if any information received relates to a scheduled offence, but is empowered to start with the investigation in respect of the scheduled offence initially. Sub-section (2) says that the state government will forward the report to the central government as expeditiously as possible. Sub-section (3) requires that on the receipt of the report, the central government will determine whether the offence is a scheduled offence or not; and whether, having regard to the gravity of the offence and other factors, it is a case to be investigated by the NIA.At this, Justice Chandrachud noted, "A two-fold function is performed by the central government under sub-section (3). First, determining whether an offence is a scheduled offence or not. And second, whether having regard to the gravity and other relevant factors, it is a fit case to be investigated by the Agency. So the jurisdiction of the state to investigate the offence is not ousted simply by it being a scheduled offence. The central government may say that even though it is a scheduled offence, we want the state to investigate"Continuing, the ASG indicated sub-section (4) which says that a direction will be issued to the NIA if the central government concluded that it is a scheduled...

'Can The State Police Continue Once NIA Investigation Ordered By Central Govt? Are All UAPA Offences To Be Tried Exclusively By NIA Courts?' Supreme Court Reserves Judgment

Mehal Jain

Tags