Special Court must transfer case to regular court under NIA Act Section 20 when no scheduled offences established against surviving accused after abatement against deceased, preventing retention via connected offences under Section 14.

ORDER :

SANJAY DHAR, J.

1) The instant reference has been made by the learned Principal Sessions Judge, Kulgam, seeking appropriate directions in the matter.

2) It appears that an FIR bearing No.96/2016 for offences under Section 147, 148, 149, 188, 336, 332, 188, 302, 307, 427, 436, 511 RPC, 7/27 Arms Act, 3 PSS Act, 3/2 PPD Act and 13 ULAP Act came to be registered with Police Station, Yaripora. After investigation of the case, offences under Section 147, 148, 149, 188, 336, 332, 436, 511, 427 RPC, 3 PSS Act and 3/2 PPD Act were found established against accused Shiraz Ahmad Dar, Asif Ahmad Ganai, Zahoor Ahmad Nengroo, Towseef Ahamd Bhat, Sheikh Abdul Bari, Tariq Ahmad Parray, Khalid Hussain Malik, Siyar Ahmad Kumar, Sameer Ahmad Bhat and Sarjan Ahmad Wagay whereas offences under Section 302 RPC, 7/27 Arms Act and Section 13, 20, 38 ULAP Act, were found established against accused Farooq Ahmad Bhat, Hilal Ahmad Wani, Umar Majeed and Muzamil Manzoor.

3) It appears that during investigation of the case, accused Farooq Ahmad Bhat, Hilal Ahmad Wani, Umar Majeed and Muzamil Manzoor died. The Investigating Agency, it appears, presented a separate challan against aforenamed accused before the Court of Special Judge (Designated under NIA), Kulgam, as the offences under Section 13, 20 and 38 of UAPA were also found established against these accused. However, a separate challan came to be filed against other accused before the Court of Principal Sessions Judge, Kulgam, as none of the offences under UAPA was found established against them.

4) Learned Special Judge (Designated under NIA), vide his order dated 31.12.2024 recorded that the proceedings against four accused, who had been killed and against whom offences under UAPA were also found established, stand abated. However, the learned Principal Sessions Judge, Kulgam, vide his order dated 03.03.2025 after relying upon the ratio laid down by the Supreme Court in the case of Essar Teleholdings Ltd. Vs. Registrar General High Court of Delhi , (2013) 3 SCC 744, observed that because all the offences including the offences under UAPA have been committed in the same transaction, therefore, in terms of Section 223 of the Cr. P. C, all the accused persons are required to be tried together. After holding so, the learned Sessions Judge transferred the case to the Court of learned Special Judge (Designated under NIA), Kulgam.

5) Vide order dated 06.11.2025, learned Special Judge (Designated under NIA) Kulgam, observed that the order of transfer has been passed by the learned Principal Sessions Judge, Kulgam, in ignorance of order dated 31.12.2024, whereby it was recorded that proceedings against the accused, who had been killed and against whom offences under UAPA had been established, stand terminated. The learned Special Judge further observed that since there is no accused left to be tried separately warranting invocation of Section 220 of the Cr. P. C, the case is required to be tried by the learned Sessions Judge. Accordingly, the file was returned to the court of learned Principal Sessions Judge, Kulgam.

6) On 20.11.2025, the learned Sessions Judge, Kulgam, after observing that there is no provision to transfer a criminal case by Additional Sessions Judge to the Court of Principal Sessions Judge. Thus, the chargesheet was again sent to the Court of learned Special Judge (Designated under NIA), Kulgam, for trial.

7) On 12.03.2026, the Special Judge (Designated under NIA), Kulgam, passed a detailed order observing therein that in terms of Section 20 of the National Investigation Agency Act,2008 (for short “the NIA Act”), a Special Cour