Special Court under NIA Act to have sole jurisdiction in UAPA offences only after NIA officially takes over case: SC

THE Supreme Court Wednesday held that the special court designated under the National Investigation Act to decide Unlawful Activities (Prevention) Act (UAPA) offences would have the sole jurisdiction to investigate a case only after it is taken over by the National Investigation Agency (NIA).

Ruling on a petition filed by UAPA-accused Naser Bin Abu Bakr Yafai, an alleged Islamic State (IS) sympathizer, a three-judge bench led by Justice D.Y. Chandrachud said even though in this instance the Central Government had, during the investigation by Mumbai's Anti-Terror Squad (ATS), sought to hand over the matter to the NIA, the ATS was within its jurisdiction to investigate Yafai's offence and to file a charge-sheet against him in the court of the Chief Judicial Magistrate which was designated by the state government as a court of remand.

On July 14, 2016, an FIR was registered with the ATS against two accused persons under the UAPA and the Indian Penal Code. On August 26, 2016, the state government, by way of a notification, designated the Chief Judicial Magistrate (CJM), Nanded, as a court of remand and the court of the Additional Sessions Judge (ASJ) Nanded, as a Special Court to try cases filed by the ATS, Nanded.

On September 08, 2016, the Union Home Minister invoked the NIA Act and sought to transfer the case to the NIA. The ATS, however, continued with the investigation and filed a charge sheet on October 07, 2016. The CJM, Nanded took cognizance of the offence and on October 18, 2016  committed the case to the court of ASJ, Nanded. It was only two months later, on December 08, 2016, that the ATS handed over the investigation papers to the NIA.

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It is in this context that Yafai argued that once the Central government had entrusted the investigation to the NIA under Section 6(4) of the NIA Act, the ATS Nanded had no jurisdiction to continue with the investigation into a scheduled offence under the NIA Act. His second argument was that since the offences under the UAPA were scheduled offences under the NIA Act, even if they were investigated by the State Investigating Agency, they would be exclusively triable by a Special Court constituted under the NIA Act and the CJM, Nanded had no jurisdiction to remand the accused persons and commit the case for trial before the ASJ, Nanded.

Refusing relief to Yafai, the Supreme Court held that CJM, Nanded had validly committed the case to the ASJ, which at that time had been designated as a special court for the cases filed by the ATS.

It held the ATS had a duty to continue with the investigation till the NIA Mumbai actually took over the investigation from it. The court relied upon Section 6(7) of the NIA Act, which 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. The NIA took over the investigation only on December 08, 2016.

Holding that till the NIA takes over an investigation, the jurisdiction is with the court which ordinarily has it, the bench took note of the fact that the state government, under Section 11 read with Section 185 of the Criminal Procedure Code, had issued a notification on August 26,  2016 designating the CJM, Nanded as the remand court and the ASJ, Nanded as a Special Court for the trial of cases filed by the ATS Nanded.

"There is no challenge to the notification dated 26 August 2016. Against this backdrop, the CJM, Nanded has been designated as a court of remand and the ASJ, Nanded as a Special Court under the CrPC for the trial of cases filed by the ATS Nanded. Hence, they both had the jurisdiction to entertain the present case under the UAPA till the NIA Mumbai took over the investigation on 8 December 2016, and sought a transfer of the case to the NIA Special Court at Mumbai constituted under Section 11 of the NIA Act", the Supreme Court held.

"Both of these took place prior to 8 December 2016, which is when the investigation was handed over to the NIA Mumbai. Admittedly, once the NIA Mumbai took up the investigation, the Special Court designated under Section 11 of the NIA Act would have sole jurisdiction to try the case. In the present case, the NIA Mumbai took up the investigation only on 8 December 2016 after receiving the records from the ATS Nanded, and thereupon it filed an application for transfer of the case from the ASJ, Nanded to the NIA Special Court, Mumbai constituted under Section 11 of the NIA Act," the apex court pointed out.

It distinguished its decision in Bikramjit Singh v. State of Punjab from last year, and concluded that "the principle enunciated … in Bikramjit Singh … 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)."

Click here to read the order