National Investigation Agency (NIA) & its functions

NIA deals with terrorism & such offences

The National Investigation Agency Act provides for creation of the National Investigation Agency (NIA) in the country.

The NIA Act was enacted in the aftermath of the Mumbai terrorist attacks of 2008. The enactment of NIA Act in fact was a course of action perilously close to crossing the constitutional limits because policing is a state subject under the Constitution. No central police force could be established except having the Central Bureau of Investigation (CBI) which is acting as a substitute for a national police force at times as police is not a union subject for law making. However there has been a plea for enacting a CBI Act for creating a national police force which did not go much forward.

NIA is the only federal agency in the country, along the lines of the Federal Bureau of Investigation (FBI) in the United States of America. NIA is much more powerful than the CBI though its resources and facilities are quite limited.

Objective of National Investigation Agency (NIA)

The broad-based objective of the NIA is to investigate and prosecute offences affecting the sovereignty, security and integrity of India, the security of State, friendly relations with foreign States and offences under laws enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organizations and for connected and incidental matters.

NIA has powers to take suo motu cognizance of terror activities in any part of India. The agency can register a case, enter any state without permission from the state government, and investigate and arrest people. The CBI does not have this power and privilege.

Amendment of the NIA Act in 2019

The NIA Amendment Act in 2019 expanded the type of offences that NIA could investigate and prosecute.

The agency can thereon investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908. The amended Act empowers the agency to investigate offences committed outside India, subject to international treaties and domestic laws of other countries. The amendment enables the central government to designate Sessions Courts as Special Courts for NIA trials, in consultation with the Chief Justice of the State.

The Unlawful Activities (Prevention) Amendment (UAPA), passed in 2019, authorizes an NIA officer to conduct raids, and seize properties that are suspected to be linked to terrorist activities without even taking prior permission of the Director General of Police of a state. What the investigating officer requires is the sanction from the Director General of NIA alone.

What offences the NIA investigates into

The NIA can investigate and prosecute the offences coming under the following Acts:

1. The Explosive Substance Act, 1908
2. The Atomic Energy Act, 1962
3. The Unlawful Activities (Prevention) Act, 1967
4. The Anti-Hijacking Act, 1982
5. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982
6. The SAARC Convention (Suppression of Terrorism) Act, 1993
7. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002
8. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005
9. The offences under the Sections 121 to 130, Sections 370 & 370A, and Sections 489-A to 489-E of the Indian Penal Code,  1860
10. The Section 25 of the Arms Act, 1959
11. The Section 66F of the Information Technology Act, 2000

Investigation of Offences under NIA Act

NIA Act prescribes some procedures for investigation in addition to following the procedures stipulated in the Criminal Procedure Code, 1973 (CrPC)

On receipt of and recording of information under Section 154 of the CrPC relating to any Scheduled Offence, the officer-in-charge of the police station shall forward the report to the State Government. The State Government in turn should forward the report to the Central Government as expeditiously as possible.

On receipt of the report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the NIA.  If the Central Government considers that the offence is a Scheduled Offence and is fit enough to be investigated by the Agency, it shall direct the Agency to investigate the offence.

Where any direction has been given as above, the State Government and any police officer of the State Government investigating the offence should not proceed with the investigation and should transmit the relevant documents and records to the Agency.

However, 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.

Centre’s suo moto power to direct investigation

The NIA could take over cases if they fall under the offences mentioned in the Schedule of the NIA Act. There was no need for the Centre to seek the permission of the state governments as the law empowers the Centre to suo motu investigate the offences scheduled in the act.

As per the 2019 amendment, the powers, functions and privileges that the state police officers have in regard to the investigation of offences listed under the NIA act can be exercised by the NIA as well. That means the agency can make arrests directly in the states without seeking the assistance of the state agencies.

Special Courts under NIA Act

The Central Government has powers to constitute Special Courts for any area, or for such category of cases, by notification. The Central Government’s decision as to the jurisdiction of the court shall be final.

The judge who presides over the Special Court shall be appointed by the Central Government. The NIA may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. On receipt of such an application, the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court. On the recommendation of the Chief Justice of the High Court the central government will make appointment of the judge.

The Central Government can, when required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.

A Sessions Judge or an Additional Sessions Judge in any State is qualified for appointment as a judge or an additional judge of a Special Court. The attainment of the age of superannuation in the parent service by a person appointed as a judge or an additional judge of a Special Court shall not affect his continuance as such judge or additional judge, provided the Central Government directs that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him.

The judge of the Special Court can issue written orders from time to time for distribution of business of the Special Court among all judges, including himself and the additional judge, and for the disposal of urgent business in the event of his absence or the absence of any additional judge.

Appointment of Public Prosecutors

The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors. The Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.

A person shall not be qualified to get appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor unless he has been in practice as an Advocate for not less than seven years, or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.

Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this law shall be deemed to be a Public Prosecutor under the CrPC.

Procedure and powers of NIA Special Courts

NIA Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute an offence or upon a police report of such facts.

Where an offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may try the offence in a summary way in accordance with the procedure prescribed under Sections 263 to 265 of the CrPC.

In the course of a summary trial if it appears to the Special Court that the nature of the case is such that it is not desirable to try it in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the CrPC for the trial of such offences not amenable to summary trial proceedings.

In the case of any conviction in a summary trial it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding one year and with fine which may extend to five lakh rupees.

NIA Court has powers of a Court of Sessions

The NIA Special Court shall, for the purpose of trial, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session in accordance with the procedure prescribed in the CrPC for the trial before a Court of Session.

Every case transferred to the NIA Special Court shall be dealt with as if such case had been transferred under section 406 of the CrPC  to such Special Court.

NIA Special Court may, subject to the provisions of section 299 of the CrPC, for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.

Appeal against NIA Court orders

An appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.

Every such appeal shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.

No appeal or revision, except as provided above, shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. However an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.

Every appeal shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from. The High Court can admit an appeal after the expiry of thirty days, but not later than ninety days, if the appellant convinces the court sufficient reason for not preferring the appeal within thirty days. 

Chhattisgarh Government’s Petition

The state government of Chhattisgarh filed a petition stating that the NIA Act, in its present form, not only takes away the state’s power of conducting investigation through police but also confers unfettered discretionary and arbitrary powers on the Centre.

In its plaint, the state argues that police was under the state list and Parliament was not competent to pass a law like the NIA Act. The state government says that the NIA Act took away the state’s powers to investigate crimes. There are no rules governing the exercise of Centre’s powers under the Act, making the law arbitrary. As the law does not provide seeking consent of the state government before operating in its jurisdiction, it violates the federal principle enshrined in the Constitution.

Chhattisgarh’s plaint challenges the entire NIA Act and not just the 2019 amendments alone.