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2016 Supreme(Del) 1823
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATIBHA RANI, J.
MUSHTAQ AHMAD LONE - Petitioner
Versus
NATIONAL INVESTIGATION AGENCY AND ANOTHER - Respondents
W.P.(CRL) 1036/2015
Decided On : 28-4-2016
Mr.Sanjay Jain, ASG, with Mr.Shilpa Singh, Spl.PP, Mr.Abhishek Bagana, PP and Ms.R. Jain, Advocates for R-1., Mr.Sanjeev Uniyal, Advocate for R-2/UOI.
Mr.Ramesh K.Mishra and Mr.Rajnish K.Sinha, Advocates.
The court emphasized that the writ petition can be filed only when there is no alternative effective and efficacious remedy available under the law.
Headnote:
Territorial Jurisdiction - National Investigation Agency Act - Section 13
Fact of the Case:
The petitioner sought to prohibit the Special Court in Delhi from trying the case, arguing that the offences were committed in Jammu & Kashmir and should be tried there.
Finding of the Court:
The court dismissed the petition, stating that the offences were not limited to Jammu & Kashmir and that the petitioner had an alternative remedy under the NIA Act.
Issues: Territorial jurisdiction of the Special Court under the NIA Act
Ratio Decidendi: The court held that the offences were not limited to Jammu & Kashmir, and the petitioner had an alternative remedy under the NIA Act.
Final Decision: The writ petition was dismissed.
PRATIBHA RANI, J. (Oral)
1. The writ petitioner before this Court is facing trial in case RC No.11/2011/NIA/DLI before the Special Court established under The National Investigation Agency Act, 2008 (hereinafter referred to as NIA Act) at Patiala House Court, New Delhi.
2. The prayer made in the writ petition is for issuance of directions prohibiting/restraining the Special Court constituted at Delhi under NIA Act from conducting trial of the petitioner in case RC No.11/2011/NIA/DLI as the offences have been allegedly committed in Jammu & Kashmir.
3. Mr.Ramesh K.Mishra, Advocate for the petitioner has raised the issue of territorial jurisdiction of the Special Court constituted under NIA Act at Delhi to try the petitioner. Learned counsel for the petitioner has referred to the provision of Section 13 of NIA Act which provides as under:-
‘13. Jurisdiction of Special Courts – (1) Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
(2) If, having regard to the exigencies of the situation prevailing in a State if, -
(a) it is not possible to have a fair, impartial or speedy trial; or
(b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or
(c) It is not otherwise in the interests of justice,
the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State of in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.
(3) The Supreme Court or the High Court, as the case may be, may act under this Section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.’
4. Learned counsel for the petitioner has submitted that in view of Section 13(1) of NIA Act, the petitioner/accused could have been tried only in Jammu & Kashmir for the reason that the offence has been allegedly committed in Jammu & Kashmir only. He has submitted that when all the witnesses to be examined by the prosecution are from Jammu & Kashmir, the offence has been allegedly committed in Jammu & Kashmir, the petitioner can be tried at Jammu & Kashmir only.
5. Learned counsel for the petitioner has referred to paras 16.3, 16.4 and 17.2 of the chargesheet which have been extracted in the petition to show that the prosecuting agency has tried to bring the case artificially within the territorial jurisdiction of Delhi to deny the petitioner his right to have fair trial. Paras 16.3, 16.4 and 17.2 of the chargesheet as extracted in the writ petition, read as under:-
‘16.3. The said outfit HM is allegedly involved in funding approximately Rs. 80 crores for terrorist activities in the past eight years to India. In pursuance of the said criminal conspiracy, funding continues by Hizb-Ul-Mujahiddeen (HM) from Pakistan through different mediums to different places including but not limited in J&K, Delhi and so on.
16.4. In the garb of one Jammu Kashmir Affectees Relief Trust (JKART), the said terrorist outfit is actively involved in furthering the terrorist activities in India. The head office of JKART, a frontal organisatiion of HM, is in Rawalpindi and branch offices are in Islamabad and Muzaffrabad. Once the money reaches India it is distributed through various conduits at several places including but not limited to J&K, Delhi and so on to the active terrorists and families of killed HM terrorists.
17.2. Investigation has revealed that funds received from HM in Pakistan are distributed to the active terrorists and to the next kin of the killed terrorists in J&K
