Order :

Sanjay Dhar, J.

1. The petitioner has filed the instant petition under Section 407 of Code of Criminal Procedure seeking transfer of challan pending against the petitioner from the Special Court (3rd Additional Sessions Judge, Jammu to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar for trial.

2. It is averred in the petition that National Investigation Agency has submitted a challan against the petitioner and other accused under Section 173 (2) of Cr. P. C alleging commission of offences under Sections 120-B, 121, 121-A & 122 IPC and Sections 17,18, 18-B, 19, 20, 23, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) & 35 of Arms Act read with Sections 4 & 5 of the Explosive Substances, Act before the Court of Special Judge (3rd Additional Sessions Judge) Jammu.

3. The transfer of aforesaid challan to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar has been sought on the ground that most of the witnesses whose statements are yet to be recorded by the learned trial Court pertain to Kashmir division and, as such, it would be convenient to hold the trial of the case at Srinagar. It is further contended that the petitioner is a resident of Indra Nagar, Srinagar where his family is also residing and that he has no relation at Jammu where the trial is to be conducted. It is averred that some of the lawyers at Jammu have refused to accept the brief of the petitioner and it would be very expensive for the petitioner to engage a Lawyer from Kashmir to defend the case on his behalf at Jammu. For the aforesaid reasons the petitioner has sought the transfer of the challan from Jammu to Srinagar.

4. The petition has been resisted by the respondent-Investigating Agency by filing reply thereto. In their reply respondents No. 1 and 2 have contended that there is no ground for transfer of the case from Jammu to Srinagar. It is further contended that merely because some of the witnesses to be examined in the case are from Kashmir Valley does not offer a ground for transfer of challan from Jammu to Srinagar. It is further contended that in terms of Article 39-A of the Constitution of India, the petitioner is entitled to free legal aid in case he is unable to engage a counsel in Jammu. Lastly it has been contended that there is only one Special Court in whole of the Union Territory of Jammu and Kashmir i.e., 3rd Additional Sessions Court, Jammu which has been designated as a Special Court in terms of Section 11 of the National Investigation Agency, Act (for brevity ‘NIA Act’) and as such the challan which is subject matter of the instant petition cannot be tried by any other Court in Union Territory of Jammu and Kashmir.

5. I have heard learned counsel for the parties and perused the material on record.

6. It is an admitted case of the parties that the case in which the petitioner is facing trial before the Special Court, at Jammu has been investigated by National Investigating Agency which is an agency of the Central Government. Section 11 of the NIA Act empowers the Central Government to constitute one or more Special Courts for trial of scheduled offences. Section 13 of the same Act provides for jurisdiction of the Special Court. It reads 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