NIA Act | Scheduled UAPA Offences Can Be Probed By Investigating Agency Of State Govt: JKL High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that the provisions of the National Investigation Act (NIA Act) Act do not prohibit the investigation of the Scheduled offences which include the offences under the ULA(P) Act, by Local Investigating Agencies. 

Justice Sanjay Dhar observed,

"It only provides that when a Scheduled offence is investigated by a local investigating agency, the same has to be tried by a Special Court constituted under Section 22 of the Act".

The observations were made while hearing a plea under 561-A  of J&K CrPC (Pari Materia with Section 482 CrPC) in terms of which the petitioner had challenged an order passed by Principal Sessions Judge, whereby he was denied bail in an FIR registered under Sections 147, 148, 149, 336, 307, 302, 212 RPC, 7/27 Arms Act read with Sections 13(2), 18, 19, 20, 38, 39 of ULA(P) Act..

In his plea the petitioner submitted that the investigation of the FIR has been conducted by local police and the provisions of the NIA Act are not applicable to the case at hand. He further submitted that the order impugned has been passed by Principal Sessions Judge, Kulgam, and not by a Special Court designated under the NIA Act, therefore, the remedy of appeal provided under the NIA Act is not available to the petitioner.

While perusing the record the bench also noted that the investigation of the case has been conducted by the local investigating agency and not by the NIA. However, it observed that the provisions of the NIA Act, do not prohibit the investigation of the Scheduled offences which include the offences under the ULA(P) Act, by Local Investigating Agencies.

Deliberating further on the matter the bench observed, 

"Clause (ii) of sub-section (2) of Section 22 of the NIA Act, clearly provides that reference to "Agency" in sub-section (1) of Section 13 shall be construed as a reference to the "Investigating Agency of the State Government", which means that every Scheduled offence investigated even by investigating agency of the State Government is to be tried only by a Special Court within whose jurisdiction it was committed".

Deliberating on the mandate of Section 22 of the NIA Act Justice Dhar observed,

"The said Section provides that when a Scheduled offence is investigated by a local investigating agency, the same has to be tried by a Special Court constituted under Section 22 of the NIA Act and in the absence of a Special Court, by the Sessions Court having jurisdiction in the area, meaning thereby that the Sessions Court will act as a Special Court in such matters where the offences involved are of the nature as mentioned in the Schedule to the NIA Act."

Expounding further the bench noted that since the order has been passed by Principal Sessions Judge, Kulgam the same has to be treated as the one passed by a Special Court constituted under Section 22 of the NIA Act.

"Such an order is appealable in terms of Section 21(4) of the NIA Act and in terms of sub-section (2) of Section 21, the appeal has to be heard by a bench of two Judges of the High Court," said the court.

Pointing out the fact that the petitioner instead of availing the remedy of appeal provided under Section 21 of the NIA Act, had filed the present petition under Section 482 of the Cr. P. C, Justice Dhar underscored that the High Court would be reluctant in exercising its jurisdiction under Section 482 of the Cr. P. C in a case where a litigant has an alternative efficacious remedy available.

In view of the aforesaid discussion, the bench dismissed the petition as not maintainable.

Case Title: Mohammad Ayoub Dar Vs State of J&K

Citation: 2022 LiveLaw (JKL) 257

Coram: Justice Sanjay Dhar

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