1. Whether ATS could continue investigation after NIA direction under Section 6(4) NIA Act and CJM's jurisdiction for remand/committal of UAPA offences. (Para 1 , 2 , 4 , 5 , 6 )
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2021 Supreme(SC) 632
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, VIKRAM NATH, B.V. NAGARATHNA, JJ.
Naser Bin Abu Bakr Yafai – Appellant
Versus
The State of Maharashtra and Another – Respondents
Criminal Appeal Nos. 1165, 1166 of 2021
Decided On : 20-10-2021
Advocates appeared:
For the Petitioner(s):Farrukh Rasheed, Abu Bakr Sabbaq, Zahid Hussain, Satya Mitra, Advocates
For the Respondent(s):K.M. Nataraj, S.V. Raju, Kanu Agrawal, Sairica Raju, Swati Ghildiyal, Zoheb Hussain, B. V. Balaram Das, Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Advocates
For the Petitioner(s):Farrukh Rasheed, Abu Bakr Sabbaq, Zahid Hussain, Satya Mitra, Advocates
For the Respondent(s):K.M. Nataraj, S.V. Raju, Kanu Agrawal, Sairica Raju, Swati Ghildiyal, Zoheb Hussain, B. V. Balaram Das, Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Advocates
The court ruled that the ATS could continue its investigation until the NIA officially took over, affirming the validity of the charge-sheet filed by ATS Nanded due to the absence of a designated Special Court at the time.
Headnote:
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Legal Category Hierarchy
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2. Appellants argued cessation of state investigation upon NIA direction and exclusive Special Court jurisdiction; respondents relied on Section 6(7) and absence of designated Special Court. (Para 13 , 14 , 15 , 16 , 17 , 18 )
3. Section 6(7) mandates state police continue investigation till NIA actually takes over; CJM/ASJ had jurisdiction as no Special Court under Section 22 existed. (Para 22 , 23 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 )
4. Under Section 6(7), state police must continue investigation until NIA takes up the case; state courts retain jurisdiction for scheduled offences absent a designated Special Court. (Para 22 , 23 , 39 , 47 , 48 )
5. Appeals dismissed; High Court order affirmed holding ATS investigation valid and CJM/ASJ jurisdiction proper until NIA took over. (Para 50 , 51 , 52 )
6. What is the duty of the state police under Section 6(7) NIA Act after a direction to NIA?
State police must continue investigation until NIA actually takes up the case; investigation does not cease immediately upon issuance of direction. (Para 22 , 23 , 33 , 39 )
7. Can a CJM take cognizance and commit a scheduled offence under UAPA when no Special Court under Section 22 NIA Act exists?
Yes, until a Special Court is designated by the State Government, ordinary courts (CJM/ASJ) designated by state notification have jurisdiction for remand and committal. (Para 40 , 47 , 48 , 49 )
8. Does the exclusive jurisdiction principle in Bikramjit Singh apply when no Special Court under Section 22 has been constituted?
No, Bikramjit Singh applies only where a Special Court under Section 22 exists; in its absence, state courts retain jurisdiction over scheduled offences. (Para 44 , 47 )
9. Does an invalid investigation nullify cognizance or trial?
No, unless miscarriage of justice is shown; invalidity in investigation does not necessarily nullify cognizance or trial. (Para 41 )
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis. They are:
| (A) | Facts |
| (B) | Submissions |
| (C) | Provisions of the NIA Act |
| (D) | Continuation of investigation by the ATS Nanded |
| (E) | CJM, Nanded's jurisdiction for remand and committal to trial |
| (F) | Conclusion |
(A) Facts
1. This batch of two appeals arises from a judgment dated 5 July 2018 of a Division Bench of the High Court of Judicature at Bombay.
2. On 14 July 2016, an FIR1 [C.R. No. 8 of 2016] was registered under Sections 120-B and 471 of the Indian Penal Code 18602 [“IPC”] read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 19673 [“UAPA”] and Sections 4, 5 and 6 of the Explosive Substances Act 19084 [“ES Act”]. It was registered with the Anti-Terrorism Squad 5 [“ATS”] at the Kala Chowki Police Station Mumbai on the basis of written information provided by Manik Vitthal Rao Bedre6 [A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra], against two persons: (i) Naser Bin Abu Bakr Yafai (the appellant in the first of the two appeals)7 [Criminal Appeal No. 1165 of 2021] and (ii) Farooq (who was residing in Syria). The complaint alleged that the ATS had received source information that Naser Bin Abu Bakr Yafai was in contact through the internet with members of the Islamic State8 [“IS”]/Islamic State of Iraq and Syria9 [“ISIS”]/Islamic State of Iraq and Levant10 [“ISIL”]/Daesh, terrorist organizations banned by the United Nations and the Indian Government. He was alleged to have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh) in making bombs/IEDs to cause a blast during the month of Ramzan, for which he had procured the required material in July 2016. The ATS arrested four persons from Parbhani, namely: (i) Naser Bin Abu Bakr Yafai; (ii) Mohammad Shahed Khan (the appellant in the companion appeal)11 [Criminal Appeal No. 1166 of 2021]; (iii) Iqbal Ahmed and (iv) Mohammad Raisuddin.
3. On 26 August 2016, the Government of Maharashtra, in exercise of powers conferred by Section 11 read with Section 185 of the Code of Criminal Procedure 197312 [“Cr.P.C.”] issued a notification designating the Chief Judicial Magistrate13 [“CJM”], Nanded, as a Court of remand and the Court of Additional Sessions Judge 14 [“ASJ”], Nanded, as a Special Court to try cases filed by the ATS Nanded.
4. On 8 September 2016, the Ministry of Home Affairs of the Union government 15 [F. No. 11011/24/2016-IS-IV] directed the National Investigation Agency16 [“NIA”] to take over further investigation in the present case by exercising powers under Section 6(4) of the National Investigation Agency Act 2008. 17 [“NIA Act”] On 14 September 2016, the NIA Mumbai renumbered the case18 [RC-03/2016/NIA/MUM] for taking up further investigation.
5. 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 case19 [Sessions Case No. 106 of 2016] to the Court of ASJ, Nanded.
6. On 23 November 2016, the NIA Mumbai informed the ATS Nanded of having taken over the investigation and sought the papers/records of the case. On 8 December 2016, the ATS Nanded handed over the case papers to the NIA Mumbai. At present, the NIA Mumbai is seized of the matter and is conducting further investigation.
7. During the course of the above events, Naser Bin Abu Bakr Yafai had filed an application on 21 October 2016 before the ASJ, Nanded, under Section 167(2) of the Cr.P.C. 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
