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.

Background

Naser 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 over

One 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 government and any police officer of the State government investigating the offence shall not proceed with the investigation; and (b) the relevant documents and records must be transmitted to the NIA forthwith (sub-Section (6) of Section 6);

(viii) By way of abundant caution ("for the removal of doubts"), sub-Section (7) of Section 6 contains a declaration that till the NIA "takes up the investigation of the case", it shall be the duty of the office in-charge of the police station to continue the investigation (sub-Section (7) of Section 6);

(ix) The provisions of sub-Sections (6) and (7) of Section 6 must be read together and in harmony in order to fulfill the purpose and intent of the Parliament in a holistic manner;

(x) The object and underlying purpose of sub-Section (7) is to ensure that there is no hiatus in the course of the investigation. Hence, while sub-Section (6) stipulates a two-fold requirement, that upon the issuance of a direction under sub-Sections (4) or (5) of Section 6 neither the State government nor the police shall proceed with the investigation and must transmit the documents and records to the NIA forthwith, sub-Section (7) imposes a statutory obligation on the officer in-charge of the police station to continue the investigation till the NIA actually takes over; and

(xi) While enacting the provisions of sub-Section (7) of Section 6, the Parliament was conscious of the fact that an interlude may occur between the date of the issuance of a direction and the actual taking up of the investigation by the NIA. However, between the issuance of a direction under sub-Sections (4) or (5) of Section 6 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 court observed that ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actually took over the investigation from it.

Sub-Section (4) of Section 6 contemplates a direction by the Central government to the NIA to investigate an offence, where it is of the opinion that the offence is a scheduled offence and that it is fit to be investigated by the NIA. Sub-Section (5) also confers a suo motu power on the Central government to direct the NIA to investigate a scheduled offence. Under sub-Section (6), upon the issuance of a direction under sub-Sections (4) or (5) of Section 6, the State government and the officer in-charge of the police station investigating the offence "shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the [NIA]". However, this stipulation has to be read in the context of sub-Section (7), under which the investigation by the officer in-charge of the police station has to continue till the NIA takes up the investigation of the case. Sub-Section (7) is a provision for the "removal of doubts". Such a provision clarifies the intent of the lawmaker so as to place it beyond the realm of ambiguity. Hence, on a conjoint reading of sub-Sections (4), (5), (6) and (7) of Section 6, what emerges is that the ATS Nanded had a duty to continue with the investigation till the NIA Mumbai actually PART D 23 took over the investigation from it.

Mere renumbering of the case filed by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation.

The court then proceeded to examine when did the NIA Mumbai actually commence the investigation in the present case. In this regard, the court observed thus:

37.. an investigation commences upon the receipt of information by the police which discloses the commission of a cognizable offence. However, the mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such informatio

39 The contention of the ATS Nanded is that the investigation by them until the NIA Mumbai took up the investigation of the case was in terms of the mandate of sub-Section (7) of Section 6 since the provision states that "till the [NIA] 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". In the present case, the NIA Mumbai intimated the ATS Nanded to transfer the case papers on 23 November 2016, following which the ATS Nanded sent the papers on 8 December 2016. While the NIA Mumbai may have re-numbered the case file on 14 September 2016, it could not have taken the initial step of its investigation into the case till it had access to the case papers, which it only received from the ATS Nanded on 8 December 2016. Thus, the mere renumbering of the case filed by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation. The said authority could do so till the records of the case were received by the NIA Mumbai. Hence, the investigation conducted by the ATS Nanded prior to this was within the mandate of sub-Section (7) of Section 6 of the NIA Act. The said provision is clarificatory in nature so as to remove any doubt about the duty of the officer in-charge of the police station to continue the investigation till the 'Agency', i.e., the NIA Mumbai in the instant case, took up the investigation on receipt of the case papers. Therefore, the continuation of the investigation, and the filing of the charge-sheet upon its conclusion, by the ATS Nanded was in terms of the statutory mandate under Section 6(7) of the NIA Act.

Another contention raised was that even if the ATS Nanded had the power to continue with its investigation and file a charge-sheet, it could only be before a Special Court under the NIA Act since the accused have been charged under the UAPA, which is a scheduled offence under the NIA Act. In support of this proposition, reliance has been placed upon a judgment of a three Judge Bench of this Court in Bikramjit Singh v. State of Punjab. In this regard, the court observed:

"Hence, the principle enunciated by this Court in Bikramjit Singh (supra) would not apply to the present case since there existed no Special Courts in the State of Maharashtra designated under Section 22 of the NIA Act (since the investigation was being conducted by the ATS Nanded, which had the jurisdiction over the case)."

While upholding the High Court order, the bench observed:

"Further, we hold that the CJM, Nanded could have committed the case to trial before the ASJ, Nanded upon the filing of charge-sheet by the ATS Nanded since they were the designated Courts for the ATS Nanded and no Special Court had been designated by the Government of Maharashtra under Section 22 of the NIA Act."

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