UAPA- State Police Has Duty To Continue Investigation Of Schedule Offence Till NIA Actually Takes It Over: Supreme Court

The Supreme Court observed that the State police has a duty to continue with the investigation of a schedule offence till the National Investigating Agency actually takes it over.Between the issuance of a direction 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 national security involved in the enactment of the legislation, the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna observed.The court added that mere renumbering of the case filed by the NIA did not take away the power of the State police (ATS) to continue the investigation.BackgroundNaser Bin Abu Bakr Yafai and three others were arrested after the Anti-Terrorism Squad received information that he was in contact through the internet with members of the Islamic State /Islamic State of Iraq and Syria /Islamic State of Iraq and Levant/Daesh, terrorist organizations banned by the United Nations and the Indian Government. On 8 September 2016, the Union Ministry of Home Affairs directed NIA to take over further investigation. However, the ATS continued with the investigation and filed a charge-sheet on 7 October 2016 against the aforesaid accused persons under Sections 120-B and 471 of the IPC read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the UAPA and Sections 4, 5 and 6 of the ES Act before the CJM, Nanded. The CJM, Nanded took cognizance of the offence and on 18 October 2016 committed the case to the Court of ASJ, Nanded. On 8 December 2016, the ATS Nanded handed over the case papers to the NIA Mumbai. Naser Bin Abu Bakr Yafai filed an application on 21 October 2016 before the ASJ, Nanded, under Section 167(2) of the CrPC. In his application, he contended that the offences under the UAPA are scheduled offences under the NIA Act, and hence, the CJM, Nanded had no jurisdiction to pass an order on remand, to take cognizance and pass an order of committal of the proceedings 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. The High Court upheld the order and also allowed NIA's application 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.ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actually took overOne of the contentions raised before the Apex Court was that once the Central government directed the NIA Mumbai to take over the investigation under Section 6(4), the consequence under Section 6(6) was that ATS Nanded could not continue with the investigation (and file a charge-sheet) thereafter.To answer this, the bench noted Section 6 of the NIA Act as it stood before its amendment with effect from 2 August 2019 and laid down salient features:(i) On the receipt and recording of information under Section 154 of the CrPC relating to a scheduled offence under the NIA Act, a report must be forwarded to the State government by the officer in-charge of the police station (sub Section (1) of Section 6); (ii) The State government on receipt of the report under sub-Section (1) must, as expeditiously as possible, forward it to the Central government (sub-Section (2) of Section 6); (iii) The purpose of the first and second steps embodied in sub-Sections (1) and (2) of Section 6 is to enable the Central government to make a decision in terms of sub-Section (3); (iv) Upon receiving a report from the State government, the Central government must determine within fifteen days, on the basis of the information made available by the State government or received from other sources, whether: (a) the offence is a scheduled offence; and (b) if it is fit case to be investigated by the NIA, having regard to the gravity of the offence and other relevant factors (sub-Section (3) of Section 6); (v) If 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 NIA, it shall direct the NIA to investigate the offence (sub-Section (4) of Section 6); (vi) An overriding power is entrusted to the Central government (evident from the incorporation of a non-obstante provision in sub-Section (5)) to suo motu direct the NIA to investigate the offence if it is of the opinion that: (a) a scheduled offence has been committed under the NIA Act; and (b) that it is required to be investigated by the NIA (sub-Section (5) of Section 6); (vii) Upon the issuance of a direction by the Central government under subSections (4) or (5) of Section 6, two consequences emanate under subSection (6) of Section 6: (a) the State...

UAPA- State Police Has Duty To Continue Investigation Of Schedule Offence Till NIA Actually Takes It Over: Supreme Court

LIVELAW NEWS NETWORK

Tags