'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
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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...
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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 offence and also a fit case for investigation by the NIA. The ASG explained that sub-section (5) is an independent, suo motu power of the central government where, even if there is no report from the state government or otherwise, the central government can direct the NIA to investigate a scheduled offence. He pointed out that Sub-section (6) mandates that the state shall not proceed with the investigation and transmit the documents to the NIA immediately after a direction under sub-section (4) or (5). "Sub-section (7) controls sub-section (6). It declares that till the NIA takes up the investigation of the case, it will be the duty of the police officer in-charge of the station to continue with the investigation", submitted the ASG.
At this, Justice Chandrachud observed, "It seems to indicate that there cannot be a hiatus in the investigation. Otherwise, if we were to place the construction that the moment a sub-section (4) direction is issued, the state must take its hand off, there would be a complete hiatus. You cannot make an arrest, you cannot do anything thereafter. Then it is entirely for the NIA to proceed in the matter"
Agreeing, the ASG submitted, "That is not the object of the NIA Act. It relates to scheduled offences which are grave offences. If such an interpretation is given, the entire schemes will collapse"
At this, Justice Nagarathna asked, "So what is the interpretation of the phrase 'till the Agency takes up the investigation' in sub-section (7)? Because till then, the state can continue the investigation. When does the Agency take up the investigation for the purpose of sub-sections (6) and (7)?"
"Sub-sections (6) and (7) have to be read together. Otherwise, there will be a total vacuum. There has to be the transmission of records. Unless there is transmission, there is no question of NIA taking up further investigation in the matter", responded the ASG.
Justice Chandrachud questioned, "Will the taking up of the investigation by the NIA be deemed to have taken place once the FIR is re-numbered, as they say?"
"It is mandated under the law that it is the duty of the police officer in-charge of the police station to continue the investigation unless informed by the NIA that we are going to investigate the matter. Until that is communicated to them, they cannot sit idle. Intimation given by the NIA to the police which has earlier conducted investigation is alone the first commencement point to stop the investigation conducted by the state agency. Suppose, the state agency is investigating a particular case. There are two situations when a reference may be made to the NIA- either on the report of the state government, or the central government acting suo motu. The police that were investigating the offence earlier cannot imagine certain situations by virtue of sub-sections (4) and (5). Let us take the situation where the central government suo motu referred the matter to the NIA and the NIA registered the FIR. Once it is referred to the NIA, what if it registers the FIR and then keeps quiet for a while? That is why the state government cannot stop the investigation. By the time there is development, the state police has to take certain steps like the accused are apprehended, valuable materials are seized. Can the state take advantage of this action by saying that the NIA is in-charge now? The state agency was competent to investigate- You investigated for so many days and you were duty-bound to investigate! But the moment the state police receive the communication that they are required to transfer the papers to the NIA, then they can stop the investigation", replied the ASG.
Justice Nagarathna inquired, "If the relevant documents and records are sent to the NIA, can the state police continue with the investigation then?"
"Then, I don't think so. Once the records are remitted, the NIA alone is competent", replied the ASG.
He continued to submit, "This argument gets support from section 10 of the NIA Act which says that save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the state government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. So all the provisions will have to be read together. Nothing can be read in isolation"
On the aspect of the jurisdiction of regular criminal courts in respect of a scheduled offence, the ASG advanced, "Section 13 of the NIA Act says notwithstanding anything contained in the Cr.P.C., every Scheduled Offence investigated by the NIA shall be tried only by the Special Court within whose local jurisdiction it was committed. This implies that once NIA takes up the investigation and proceeds further in the matter and the charge-sheet and other things are done, only then will it be tried only by the special court. There is no embargo on any other court initially to proceed with the matter, until such time"
Concluding, the ASG advanced that the provisions of the NIA Act will have to be construed harmoniously, it should be workable and keeping in mind the object of the Act and every endeavour should be made to achieve the purpose.
"According to them, there is an investigation which is bad in law. By virtue of section 465 of the Cr.P.C., even if there is any irregularity, it has to be raised during trial", he rested his case.
Advocate Rahul Chitnis for the respondent-state of Maharashtra advanced that he backs the submissions of the ASG, emphasising that unless the documents are transferred, the NIA cannot take up the investigation and hence, the phrase 'takes up the investigation' has to be read with the transmission of documents.
SLP Petitioners' case
Senior Advocate Colin Gonsalves, for one of the SLP petitioners, had argued that the moment the FIR was re-numbered by the NIA, that was the date on which the NIA must be deemed to have taken over the investigation and that any other kind of explanation on a statute like this should not be permitted at all.
In his rejoinder, he advanced that the section 6 phrases "the central government shall direct the agency to investigate"; "the state government shall not proceed with the investigation" and "shall forthwith transmit the relevant documents and records to the Agency"; and "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" have to be taken coupled together, with the understanding that this is a criminal statute of severity where the interpretation should be made in favour of the accused persons. "This means that a dual statutory obligation is cast upon the NIA and the state agencies to collect the papers immediately. 'Transmit' means a two-way movement of the files, a two-way action of the state agency and the NIA. It is not a literal meaning of 'transmit'. If a direction has been given to the NIA, then a transmission need not happen in a literal way. It is the NIA which has been directed by the central government to go and get the papers. It cannot put in the excuse that ATS is lingering. Can Your Lordships allow the NIA to say that I have no role to play, even if I have the central government's direction to investigate, until the papers land up on my table? You go and get it! 'Transmit' implies communication of papers. Direction to the NIA requires it to forthwith collect the papers! Immediately send your officers! Otherwise, it will open a huge gap in the prosecution of serious crimes. You will get the papers because you have been directed to get the papers, immediately register the FIR and start!", submitted Mr. Gonsalves.
Ruling out any jurisdiction of the criminal courts, he had advanced, "If the NIA is doing the investigation, then the designation of special courts is by the central government and notification is issued by the central government. If the state agency is doing the investigation, then the notification is done by the state government. Their stand is that all offences will be looked at by the state investigating agency and only when the NIA is notified by the central government will the NIA Act come into play. That is to say that till the time the NIA is made the agency to take up the case, the regular courts have full play. And it is only when the NIA sends for the state government saying that it is a case not necessary to be investigated by the NIA, will the state special courts have relevance. Section 7(b) says that with the previous approval of the central government, the NIA may transfer the case to the state government. So their argument is that it is only when the NIA transfers the investigation to the state that the special courts provision applies. Until then, the state investigating agency can proceed in the regular court. But by virtue of section 13, there is no question of going to any court apart from the special court! This puts an end to their argument. Every scheduled offence shall be tried only in the special court. Even the state agencies can investigate the offences under the NIA Act but those offences are tried only in the special courts notified by the state government under its section 22"
In his rejoinder, Mr. Gonsalves sought to rebut the argument of the NIA that when the NIA is not on the scene or is yet to come on the scene, the state can validly proceed in respect of a scheduled offence and had correctly filed the chargesheet in the CJM court. He indicated section 22 which deals with the power of the state government to designate the court of sessions as special courts for the trial of scheduled offences. "So whatever is the other argument relating to investigation and so on, the ATS could not have filed the chargesheet in the CJM court at all."
Justice Chandrachud remarked, "But this (section 22) applies to trial."
"The distinction between pre-trial and trial and committal proceedings and so on is obliterated in the Act in section 16. Section 16(1) says that a Special Court may take cognisance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. So the committal proceedings are not called for. So the CJM has no role at all in committing the matter to the sessions judge when the matter can directly go to the sessions judge! The NIA just had to file the same charge-sheet before the special court, nothing else", responded Mr. Gonsalves.
"And this is not a mere irregularity because, hinging on the so-called irregularity, arises my right under section 43D (of the UAPA) for bail. The moment the charge sheet is not filed within 180 days before the court of competent jurisdiction, my right to bail arises. So you cannot say it is a mere irregularity. Bail is a very difficult thing in terrorism/UAPA matters. It calls upon the prosecution agency, the NIA, to be very strict and very cautious. It cannot be justified in any CJM court etc", he pressed.
"Yes, the Parliament did not want there to be a hiatus before the taking of papers. But that does not mean that in the intervening proceedings, the charge sheet can go ahead and be filed in the regular court. It is not meant to undercut the seriousness of the proceedings, the preciseness with which the NIA has to act, the alacrity with which it has to act and the severe consequences of the slack performance. My bail is premised on that now!", he continued.
"Assuming that the state could have gone ahead with the investigation, the chargesheet is a nullity because it was filed in the court of CJM which does not have jurisdiction. In view of section 22, it could have only been filed before a special court. The committal proceedings of sending everything to the sessions court is again a nullity in view of section 16. And the simple thing for the NIA to have done was basically to have taken the chargesheet and filed it in a special court!", concluded Mr. Gonsalves.
Justice Chandrachud asked the ASG, "How do you construe section 16(1)?"
"You cannot read it in the negative language. It has to be read in special circumstances. There are 2 situations in which the NIA may come into the picture- on a report of the state government or at the direction of the central government acting suo motu. Once the NIA itself takes up investigation on reference by the central government, the jurisdiction is exclusively with the special court", replied the ASG.
Proceedings before the High Court
The accused-writ petitioner before the High Court had challenged the November 14, 2016 order passed by the Addl. Sessions Judge and Special ATS Judge at Nanded and prayed that he should be released in connection with the said crime under Section 102B, 471 of IPC, and Section 13, 16, 18, 18B, 20, 38, 39 of UAPA and Section 4, 5 and 6 of Explosive Substance Act. Whereas, the co-accused applicant in a connected Criminal Application had sought transfer of the case from the Court of Addl. Sessions Judge and Special ATS Judge at Nanded to the Court of Special Judge for NIA at Mumbai. The allegations are that the Anti-Terrorism Squad (ATS) had received source information that the petitioner was in contact through Internet with the persons of Islamic State (IS), Islamic State of Iraq and Syria (ISIS), Islamic State of Iraq and Levant (ISIL)/Daish, terrorist organizations banned by the UN and the Indian Government. The ATS arrested the petitioner and other co accused, investigated the crime and filed chargesheet of October 7, 2016 before the Chief Judicial Magistrate, Nanded against the petitioners and others for the offences stated above. The Chief Judicial Magistrate, took cognisance of the offence and on October 18, 2016 committed the case to the Addl. Sessions Judge and Spl. Judge, ATS, Nanded.
On September 8, 2016, the Union Ministry of Home Affairs, in exercise of powers under Section 6(4) of the NIA Act directed the NIA to take over further investigation into the said case. Accordingly, on September 14, 2016, the NIA re-numbered the said crime. In the meantime, the petitioner filed an application before the Addl. Sessions JudgeI & Spl. Judge, ATS, Nanded to release him mainly on the ground that the offence under UAP Act, being scheduled offence under NIA Act, the Magistrate had no jurisdiction to pass remand order or to take cognisance of the offence. The petitioner also questioned the jurisdiction of the Addl. Sessions & Spl. Judge ATS Nanded to try the case. The Spl. Judge ATS while dismissing the application observed that NIA had not taken over the investigation from the ATS and hence in view of provisions under Section 6(7) of the NIA Act, the ATS was competent to investigate the crime and file the charge sheet in the Court of Chief Judicial Magistrate, Nanded, which has been designated as Court of remand. The Spl. Judge therefore held that the Chief Judicial Magistrate had jurisdiction to grant remand and to commit the case to the Court of Addl. Sessions Judge which has been designated as Special Court for trying cases investigated by the ATS Mumbai. Being aggrieved, the petitioner challenged this order in the Writ Petition before the High Court in 2017.
Subsequently, by communication of November 23, 2016 the NIA requested to hand over the case papers in the said crime. The said case papers were handed over to the NIA on December 8, 2016. On receipt of the said papers, the NIA took over further investigation into the said crime. Since the offence investigated by the NIA is required to be tried by the Special Court constituted under Section 11 of the Act, the co-accused Applicant sought transfer of the record and proceedings to the Special Court presided over by Special Judge, designated under the NIA Act for trial of the said cases.In the impugned judgment, the High Court dismissed the writ petition and held, "The records reveal that on September 14, 2016, upon entrustment of the investigation, the NIA had merely reregistered/ renumbered the crime. Suffice it to say that mere reregistration or renumbering of the crime, without any further steps to collect evidence in the matter, would not amount to investigation. It may be mentioned that investigation, which commences with registration of the FIR, includes several stages such as ascertainment of facts and circumstances of the case, arrest of the suspected offender, collection of evidence relating to the crime in the form of statements of witnesses, search, seizure etc. In the instant case, the NIA had not taken any such steps. On the contrary, the records reveal that the NIA had called for handing over of the records vide communication of November 23, 2016. In response to the said communication, the ATS had transmitted the records of the said case to the NIA on December 8, 2016 and the NIA had continued investigation of the said scheduled offence only upon receipt of the said records, It is therefore evident that the NIA had taken over the investigation on December 8, 2016. Till such taking over of the investigation, in terms of subsection (7) of Section 6 the ATS was under obligation to continue with the investigation"
As regard the question of whether the offences under the UAP Act, being scheduled offences are exclusively triable by a special court constituted by the State under section 22 of the NIA Act, the High Court opined that "a reading of both the NIA and the UAPA enactments would show that there is no embargo on the State Investigation Agency to investigate the scheduled offence, which would include offences under UAP Act. In fact, the NIA would have no power to investigate the scheduled offence until and unless the Central Government takes a decision and directs the NIA to take over the investigation. In the absence of such decision and entrustment, it is primarily the duty of the State Investigation Agency to investigate the scheduled offence including offences under UAP Act. Furthermore, the provisions of both the enactments, particularly Section 2(d) of the ULP Act, which defines "Court", makes it clear that the offences under UAP Act which are investigated by the State Investigation Agency are triable by the criminal courts having jurisdiction under the Code, in accordance with the procedure provided under the Code. It is only when the Central Government takes a decision and 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"
Coming to the Criminal Application, the High Court allowed it, noting that the Central Government has entrusted the investigation to the NIA and the records and documents are already transmitted to the NIA, and that in terms of provisions of the N.I.A Act, the offence being scheduled offence, is required to be investigated by the NIA and tried by the Special Court constituted under the NIA Act.
Case Title: Naser Bin Abu Bakr Yafai v. The State Of Maharashtra And Anr.; Mohammad Shahed Khan @ Lala v. The State Of Maharashtra And Anr