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NATIONAL INVESTIGATION AGENCY ACT 2008

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S.1 Short title Extent and Application

       (1) This Act may be called the National Investigation Agency Act, 2008.
       (2) It extends to the whole of India and it applies also--
       (a) to citizens of India outside India;
       (b) to persons in the service of the Government wherever they may be; and
       (c) to persons on ships and aircrafts registered in India wherever they may be.


S.2 Definitions

       (1) In this Act, unless the context otherwise requires,--
       (a) "Agency" means the National Investigation Agency constituted under section 3;
       (b) "Code" means the Code of Criminal Procedure 1973(2 of 1974);
       (c) "High Court" means the High Court within whose jurisdiction the Special Court is situated;
       (d) "prescribed" means prescribed by rules;
       (e) "Public Prosecutor" means a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor appointed under section 15;
       (f) "Schedule" means the Schedule to this Act;
       (g) "Scheduled Offence" means an offence specified in the Schedule;
   

S.3 Constitution of National Investigation Agency

       (1) Notwithstanding anything in the Police Act, 1861(5 of 1861), the Central Government may constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule.
       (2) Subject to any orders which the Central Government may make in this behalf, officers of the Agency shall have throughout India in relation to the investigation of Scheduled Offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.
       (3) Any officer of the Agency of, or above, the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-i

S.4 Superintendence of National Investigation Agency

       (1) The superintendence of the Agency shall vest in the Central Government.
       (2) The administration of the Agency shall vest in an officer designated as the Director-General appointed in this behalf by the Central Government who shall exercise in respect of the Agency such of the powers exercisable by a Director-General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.


Legal Comments

S.5 Manner of Constitution of Agency and Conditions of Service of Members

       Subject to the provisions of this Act, the Agency shall be constituted in such manner as may be prescribed and the conditions of service of persons employed in the Agency shall be such as may be prescribed.


S.6 Investigation of Scheduled Offences

       (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.
       (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
       (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
     &

S.7 Power to Transfer Investigation to State Government

       While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may--
       (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or
       (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.


S.8 Power to Investigate Connected Offences

While investigating any Scheduled Offence, the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence.


S.9 State Government to Extend Assistance to National Investigation Agency

The State Government shall extend all assistance and co-operation to the Agency for investigation of the Scheduled Offences.


S.10 Power of State Government to Investigate Scheduled Offences

       Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force.


S.11 Power of Central Government to Constitute Special Courts

       (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.
       (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final.
       (3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court.
       (4) The Agency may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court.
       (5) On receipt of an application u

S.12 Place of Sitting

A Special Court may, on its own motion, or on an application made by the Public Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting.


S.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 wi

S.14 Powers of Special Courts With Respect to Other Offences

       (1) When trying any offence, a Special Court may also try any other offence with which the accused may, under the Code be charged, at the same trial if the offence is connected with such other offence.
       (2) If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law.


S.15 Public Prosecutors

       (1) The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:
       Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
       (2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.
       (3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this se

S.16 Procedure and Powers of Special Courts

       (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts.
       (2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code shall, so far as may be, apply to such trial:
       Provided that when, in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is not desirable to try it in

S.17 Protection of Witnesses

       (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires.
       (2) On an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, if the Special Court is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.
       (3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include--
       (a) the holding of the proceedings at a place to be decided by the Special Court;

S.18 Sanction for Prosecution

No prosecution, suit or other legal proceedings shall be instituted in any court of law, except with the previous sanction of the Central Government, against any member of the Agency or any person acting on his behalf in respect of anything done or purported to be done in exercise of the powers conferred by this Act.


S.19 Trial by Special Court to Have Precedence

The trial under this Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall, if necessary, remain in abeyance.


S.20 Power to Transfer Cases to Regular Courts

Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.


Legal Commentary on Section 20 of the NATIONAL INVESTIGATION AGENCY ACT, 2008

Introduction

Section 20 of the National Investigation Agency (NIA) Act, 2008, deals with the power of the Special Court to transfer cases to regular courts when it deems that the offence is not triable by it. This provision ensures judicial flexibility and proper jurisdictional handling of cases involving scheduled offences and other criminal acts related to terrorism and national security.

What does Section 20 Say?

Section 20 states that:

"Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."

Essential Ingredients

  • Cognizance of offence: The Special Court must have taken cognizance of the case.
  • Jurisdictional opinion: The Court must form an opinion that the offence is not triable by it.
  • Transfer to competent court: The case is transferred to a court with proper jurisdiction under the Criminal Procedure Code (CrPC).
  • Proceeding as if trial started: The transferee court proceeds with the trial as if it had originally taken cognizance.

Scope of Section 20

  • Jurisdictional flexibility: Allows transfer of cases from Special Courts to regular courts when jurisdictional limits are exceeded.
  • Applicable to scheduled and non-scheduled offences: The section applies broadly to cases under the NIA Act, including those involving terrorism, organized crime, and other offences.
  • Ensures proper trial venue: Prevents cases from being tried by courts lacking jurisdiction, thereby maintaining judicial propriety.
  • Facilitates judicial efficiency: Promotes proper adjudication by transferring cases to courts with appropriate jurisdiction.

Punishment for Section

Section 20 itself does not prescribe any punishment. It is procedural, facilitating the transfer of cases to courts with proper jurisdiction to ensure fair trial and proper adjudication.

Legal Comments

  • Jurisdictional Power - Section 20 empowers the Special Court to transfer cases when it lacks jurisdiction, ensuring cases are tried by appropriate courts - [Section 20, NIA Act]
  • Procedural Flexibility - It provides a mechanism for judicial flexibility, avoiding cases being tried by courts without jurisdiction - [Section 20, NIA Act]
  • Transfer to Proper Court - The case is transferred to a court with jurisdiction under the CrPC, ensuring legality of the trial venue - [Section 20, NIA Act]
  • Trial Continuity - The transferee court proceeds as if it had taken cognizance initially, maintaining procedural continuity - [Section 20, NIA Act]
  • Prevents Jurisdictional Overreach - Stops courts from trying cases beyond their jurisdiction, upholding the principle of territorial and subject-matter jurisdiction - [Section 20, NIA Act]
  • Ensures Fair Trial - Transfers cases to courts with proper jurisdiction to uphold the right to a fair trial under Article 21 of the Constitution - [Section 20, NIA Act]
  • Judicial Discretion - The power is exercised based on the Court’s opinion, emphasizing judicial discretion in jurisdictional matters - [Section 20, NIA Act]
  • Application to Non-Scheduled Offences - Extends to cases not classified as scheduled offences, providing broad applicability - [Section 20, NIA Act]
  • Compatibility with CrPC - Harmonizes with provisions of the CrPC regarding transfer of cases, ensuring procedural consistency - [Section 20, NIA Act]
  • Facilitates Investigation & Prosecution - Ensures cases are tried in courts with proper jurisdiction, aiding effective investigation and prosecution - [Section 20, NIA Act]
  • Complementary to Section 22 - Works in tandem with Section 22, which deals with the constitution of Special Courts, to streamline case management - [Section 20, NIA Act]
  • Legal Safeguard - Acts as a safeguard against illegal or improper trials in courts without jurisdiction - [Section 20, NIA Act]
  • Judicial Oversight - The decision to transfer is based on judicial opinion, ensuring checks and balances - [Section 20, NIA Act]
  • Impact on Appeal & Revision - The transfer order can be subject to appeal or revision, providing appellate safeguards - [Section 20, NIA Act]
  • Ensures Efficient Justice Delivery - Promotes efficient judicial process by transferring cases to appropriate courts, reducing backlog and delays - [Section 20, NIA Act]
  • Legal Certainty - Provides legal certainty and clarity regarding jurisdictional boundaries in terrorism and scheduled offences cases - [Section 20, NIA Act]
  • Constitutional Compatibility - Complies with constitutional mandates of jurisdiction and due process, reinforcing rule of law - [Section 20, NIA Act]

This concise commentary underscores the importance of Section 20 as a procedural tool that ensures cases under the NIA are tried in courts with proper jurisdiction, maintaining judicial integrity and safeguarding the rights of the accused while promoting effective prosecution of offences affecting national security.

S.21 Appeals

       (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
       (2) Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
       (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.
       (4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
    &nbs

Legal Comments

S.22 Power of State Government to Constitute Special Courts

       (1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule.
       (2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely--
       (i) references to "Central Government" in sections 11 and 15 shall be construed as references to State Government;
       (ii) reference to "Agency" in sub-section (1) of section 13 shall be construed as a reference to the "investigation agency of the State Government";
       (iii) reference to "Attorney-General for India" in sub-section (3) of section 13 shall be construed as reference to "Advocate-General of the Stat

S.23 Power of High Courts to Make Rules

The High Court may, by notification in the Official Gazette, make such rules, as it may deem necessary for carrying out the provisions of this Act relating to Special Courts within its territory.


S.24 Power to Remove Difficulties

       (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette make such provisions, not inconsistent with the provisions of this Act, as may appear to it to be necessary or expedient for removing the difficulty:
       Provided that no order shall be made, under this section after the expiration of two years from the commencement of this Act.
       (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.


S.25 Power to Make Rules

       (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.
       (2) In particular, and without prejudice to the generality to the foregoing power, such rules may provide for all or any of the following matters, namely:--
       (a) the manner of constitution of the Agency and the conditions of service of persons employed in the Agency under section 5;
       (b) any other matter which is required to be, or may be, prescribed.
       


S.26 Laying of Rules

Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agrees in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.


Sch.1 FIRST SCHEDULE

       THE SCHEDULE
       [See section 2(1)(f)]
       1. The Atomic Energy Act, 1962 (33 of 1962);
       2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
       3. The Anti-Hijacking Act, 1982 (65 of 1982);
       4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
       5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
       6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
       7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unla

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