Date of Judgement:
20 October 2021
Coram:
Justice Dr Dhananjaya Y Chandrachud
Justice Vikram Nath
Justice B V Nagarathna
Parties:
Appellant – Naser Bin Abu Bakr Yafai
Respondent – The State of Maharashtra & Anr.
Subject
Investigation by the officer in-charge of the police station has to continue till the NIA takes up the investigation of the case.
Legal Provisions
- Section 2(g) of the NIA Act, 2008 - “Scheduled Offence” means an offence specified in the Schedule.
- Section 2(h) of the NIA Act, 2008 - “Special Court” means a Special Court constituted under Section 11 or, as the case may be, under Section 22.
- Section 6(4) of the NIA Act, 2008 - 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.
- Section 6(7) of the NIA Act, 2008 - For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation.
- Section 7 of the NIA Act, 2008 - Power to transfer investigation to State Government.
- Section 10 of the NIA Act, 2008 - Power of State Government to investigate Scheduled Offences.
- Section 13(1) of the NIA Act, 2008 - Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
Overview
- The facts of the case are that an FIR was registered with the Anti-Terrorism Squad (ATS) against the appellant who was in constant contact with members of banned organisations such as ISIS. It was also alleged that the appellant was providing help in making IEDs to these banned organisations. The ATS accordingly arrested the appellant.
- The Maharashtra Government issued a notification on 26th August 2016, designating the Chief Judicial Magistrate (CJM) as a special court to try cases filed by the ATS. Taking into note the magnitude of the problem, the Union Government directed the NIA to take over the investigation on 8th September 2016 and on 14th September accordingly, the NIA Mumbai renumbered the case.
- The ATS continued the investigation and also filed a chargesheet before the CJM. Subsequently, thwATS handed over the relevant materials to the NIA on 8th December 2016.
- The appellant herein filed an application that offences under the UAPA were scheduled offences and hence the CJM had no jurisdiction to try the case. The application was rejected as at that time, the ATS did not handover the case to the NIA.
- The appellant filed a writ petition challenging the aforementioned order of the court. The High Court did not accept the contention of the appellant and dismissed the writ petition. Aggrieved by this, the appellant, through a Special Leave Petition, challenged the order of the High Court before this court.
Issue
- Whether the investigation and the chargesheet filed by the ATS valid?
- Whether the learned CJM had the jurisdiction to remand and try a scheduled offence?
Judgement Analysis
- The court first observed the object and provisions of the NIA Act. After careful consideration, the court held that Section 6(7) imposes a duty on the police officer in-charge to continue with the investigation till the agency takes up the case. It was also held that the carrying on the investigation was not a discretion of the officer in-charge but an obligation and duty.
- This court also did not agree with the contention that once the Central Government directed the case to be handed over to the NIA, the ATS should not have continued the investigation. This is because Section 6(6) of the Act provides that the investigation shall not be continued and it should be handed over to the agency. However, it should be read with sub section 7, which also provides that it is the duty of the officer in-charge to continue the investigation till the agency takes over. By a conjoint reading of the sub sections, it is clear that that it was the duty of the ATS to carry on the investigation till it was taken over by the NIA.
- To get a better clarity, we must first understand when the investigation was actually takes over by NIA to decide the validity of the investigation of ATS. In H N Rishbud and Inder Singh v. State of Delhi, the court held that an investigation is said to begin when the steps are taken based on the information which is disclosed to him. In Ramsinh Bavaji Jadejav. State of Gujarat, the Supreme Court held that when the steps of police were taken based on the disclosed information.
- It can be summarized from the cited cases that an investigation begins when the steps are taken based on the disclosed information. Although, it is important to note that mere obtaining of such information does not constitute the beginning of investigation rather only when the initial step is taken towards either in interrogating the witnesses or collecting necessary evidence is said to have begun an investigation.
- Regarding the contention of the appellant that even if the investigation is aid to be valid, the chargesheet should be filed only before a special court as it was a scheduled offence, the court referred to the notifications of the Government of Maharashtra and inferred that at that time, no special court was setup and given that the investigation of the ATS was held to be valid, it was not accepted and the appeal was dismissed.
Conclusion
On a conjoint reading of subsections 4, 5, 6 and 7 of Section 6 of the Act, it can be inferred that it is the duty of the officer in-charge to continue the investigation till it is taken over by the agency. It is not a discretion but a mandate. It is also to be noted that an investigation is said to have commenced not by mere receipt of information but when a step is taken based on the information disclosed.
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Questions:
1. What does the First Schedule in the UAPA list out?
2. Which section in the NIA Act provides that the State Government shall extend all assistance and co-operation to the Agency for investigation?
