National Investigation Agency vs Mohd. Iqbal Rather

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 147

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur and Rajnesh Oswal, JJ.
National Investigation Agency
Versus
Mohd. Iqbal Rather and Anr.
CrlA(D) No.7/2020
Decided on 24.3.2021

Advocates:
Appearing Counsel:
For the Petitioner(s): Mr. Vishal Sharma, ASG

Headnote:
Unlawful Activities (Prevention) Act, 1967-Sections 16 and 18-Ranbir Penal Code, 1989-Sections 120-B and 121-A-Jammu and Kashmir Code of Criminal Procedure, 1989-Sections 155(2) and 196-B-Terrorist activity-Although offences under Section 120-B and 121-A RPC were non-cognizable yet on account of closely interwoven facts which might have emerged during course of investigation arising out of incident which was being investigated by police agency in terms of FIR registered against accused, it cannot be said that investigation into offences which were non-cognizable under Section 120-B and 121-A was in any manner contrary to provisions of Section 155(2) of Code of Criminal Procedure, 1989-Section 196-B cannot be construed to mean that an investigation initiated other than by way of a direction emanating from District Magistrate, could never become basis of a complaint by empowered officer in terms of Section 196-A. (Paras 16 and 19)
Result-Appeal Partly allowed.

Judgment

1. This is an appeal under Section 21 of the National Investigation Agency Act, 2008, against the order dated 25.02.2020 passed by the learned Special Judge, NIA, Jammu, to the extent the accused respondents herein have been discharged under Sections 120-B and 121-A RPC in RC No.29/2018/NIA/DLI and RC No.30/2018/NIA/DLI.

2. Briefly stated the material facts are stated as under:

3. An FIR bearing No.89/2018 dated 12.09.2018 came to be registered in P/S Jhajjar Kotli, Jammu under Sections 307, 120-B, 121, 122, 123 RPC and Sections 7, 25, 26, 27 of Arms Act as also under Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967, in relation to a firing incident by some unknown terrorists with automatic weapon on the police party of P/S Jhajjar Kotli on the Jammu-Srinagar National Highway on the same date.

It appears that the terrorists who were hiding in the truck managed to escape from the spot and subsequently three of them were neutralized on 13th September, 2018 in Village Dhirthi in the jurisdiction of P/S Katra in which it is stated that some security personnel were also injured. A large number of arms and ammunitions, explosive substances etc, were recovered near the bodies of the slain terrorists. Accordingly, FIR No.191/2018 dated 13th September, 2018 under Sections 307, 120-B, 121, 122, 123 RPC as also Sections 7, 25, 26, 27 of the Arms Act, 1959, along with Sections 16, 18, 38 of the Unlawful Activities (Prevention) Act, were registered at P/S Katra.

4. Subsequently, vide orders dated 24th September, 2018 and 27th September, 2018, issued by the Ministry of Home Affairs, Government of India, the NIA re-registered the cases as RC No. 29/2018/NIA/DLI dated 25.09.2018 and RC No.30/2018/NIA/DLI dated 28.09.2018 arising out of FIR No.191/2018 of P/S Katra and FIR No.89/2018 of P/S Jhajjar Kotli, respectively. Investigation is stated to have been initiated and both the cases were clubbed with the approval of the competent authority and upon investigation, the following offences were stated to have been made out against the respondents.

Mohammad Iqbal Rather: Under Section 307 RPC, under Sections 7/25 and 35 of the Arms Act, 4/5 Explosive Substances Act, 13, 18, 19,20,21, 38 and 39 of the Unlawful Activities (Prevention) Act, 6(1A) Indian Wireless Telegraphy Act, 1933 and 14 (C) Foreigners Act read with Section 120-B and 121-A RPC.

Reyaz Ahmad Nengroo: Under Sections 307 RPC, Sections 7/25 and 35 of the Arms Act, 4/5 Explosive Substance Act, 13, 18, 19, 20, 21, 38 and 39 of the Unlawful Activities (Prevention) Act, 6(1) Indian Wireless Telegraph Act, 1933 and 14(C) Foreigners Act read with Section 120-B and 121-A RPC.

5. According to the appellant, upon completion of the investigation, an investigation report was sent to the District Magistrate Reasi and the District Magistrate, Jammu. On the basis of this report a complaint under Section 196 and 196-A of the Code of Criminal Procedure for prosecution of the accused for the offences under Section 120-B read with Section 121-A of the RPC was forwarded by the competent authority i.e., District Magistrate, Reasi and District Magistrate, Jammu, to the NIA Court at Jammu.

Not only this, before filing the charge sheet in the instant case, sanction for prosecution under Section 45(1) of Unlawful Activities (Prevention) Act, 1967, had been obtained from the Ministry of Home Affairs, Government of India. Apart from this, sanction for prosecution under Section 7 of the Explosive Substance Act and under Section 39 of the Arms Act from the District Magistrate, Reasi and District Magistrate, Jammu, which were enclosed with the charge sheet had been obtained.

6. The learned Special Judge NIA, Jammu, after hearing the parties, by virtue of the impugned order dated 25.02.2020 framed charges against the respondents under Section 307 RPC, Sections 7/25, 35 of the Arms Act, Section 4/5 of Explosive Substance Act, Sections 13, 18, 19, 20, 21, 38 and 39 of the Unlawful Activiti