Supreme Court of India
NASER BIN ABU BAKR YAFAIversusTHE STATE OF MAHARASHTRA & ANR.
- Citation
- 2021 INSC 649
- Decided
- 20 October 2021
- Disposal
- Dismissed
- Bench
- D Y CHANDRACHUD
Holding
Section 6(7) of the NIA Act mandates that the State police must continue investigation until the NIA actually takes up the case, and until such takeover the State retains jurisdiction to investigate and file a charge‑sheet, and the ordinary courts retain jurisdiction in the absence of a designated Special Court.
Summary
An FIR was lodged on 14 July 2016 alleging that the accused had links with ISIS and were planning bombings under the UAPA. The Anti‑Terrorism Squad (ATS) of Nanded began investigation, arrested four persons and, on 8 September 2016, the Central Government directed the National Investigation Agency (NIA) Mumbai to take over the case under Section 6(4) of the NIA Act. While the NIA re‑numbered the case on 14 September, it only received the case records on 8 December 2016; meanwhile the ATS filed a charge‑sheet on 7 October 2016 and the Chief Judicial Magistrate (CJM) Nanded committed the case to trial before the Additional Sessions Judge (ASJ) Nanded. The appellants contended that the ATS could not continue investigation or file the charge‑sheet after the Central Government’s direction and that the CJM/ASJ lacked jurisdiction because only a Special Court under the NIA Act could try scheduled offences. The Supreme Court held that Section 6(7) of the NIA Act obliges the police officer to continue investigation until the NIA actually takes up the case, and that Section 10 preserves the State’s power to investigate scheduled offences until such takeover. Since no Special Court under Section 22 of the NIA Act had been notified in Maharashtra at the relevant time, the CJM and ASJ retained jurisdiction. Consequently, the appeals were dismissed, upholding the ATS’s investigation, the charge‑sheet, and the lower courts’ jurisdiction.
Issues considered
- The effect of a Central Government direction under Section 6(4) of the NIA Act on the State investigating agency’s power to continue investigation and file a charge‑sheet.
- Whether Section 6(7) of the NIA Act requires the police officer to continue investigation until the NIA actually takes up the case.
- The scope of Section 10 of the NIA Act concerning the State’s power to investigate scheduled offences.
- The jurisdiction of the CJM and ASJ to take cognizance, remand and try the case in the absence of a Special Court constituted under Section 22 of the NIA Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 155, s. 162, s. 167(2), s. 170, s. 173, s. 185
- Explosive Substances Act, 1908
- National Investigation Agency Act, 2008s. 10, s. 11(1), s. 13(1), s. 16(1), s. 22(1), s. 2(a), s. 2(g), s. 2(h), s. 3, s. 6(1), s. 6(2), s. 6(3), s. 6(4), s. 6(5), s. 6(6), s. 6(7), s. 7
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 43D(2)(b)
Subjects
NIA ActSection 6(7)scheduled offenceinvestigation continuityjurisdictionSpecial CourtUAPAcharge‑sheettransfer of investigation
Judgment
[2021] 10 S.C.R. 353 353
NASER BIN ABU BAKR YAFAI A
v.
THE STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 1165 of 2021)
OCTOBER 20, 2021 B
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B. V. NAGARATHNA, JJ.]
National Investigation Agency Act, 2008: s.6 – Investigation
by NIA – If the Central government is of the opinion that the offence
C
is a scheduled offence and it is a fit case to be investigated by the
NIA, it shall direct the NIA to investigate the offence – Upon the
issuance of a direction by the Central government, two consequences
emanate under sub-Section (6) of s.6: (a) the State government and
any police officer of the State government investigating the offence
shall not proceed with the investigation; and (b) the relevant D
documents and records must be transmitted to the NIA forthwith –
Sub-Section (7) of s.6 contains a declaration that till the NIA “takes
up the investigation of the case”, it shall be the duty of the office
in-charge of the police station to continue the investigation – The
provisions of sub-Sections (6) and (7) of s.6 must be read together
E
and in harmony in order to fulfill the purpose and intent of the
Parliament in a holistic manner – While enacting the provisions of
sub-Section (7) of s.6, the Parliament was conscious of the fact that
an interlude may occur between the date of the issuance of a
direction and the actual taking up of the investigation by the NIA –
However, between the issuance of a direction under sub-Sections F
(4) or (5) of s.6 and the actual taking up of the investigation by the
NIA, there should be no hiatus in the investigation to the detriment
of the interests of national security involved in the enactment of the
legislation.
National Investigation Agency Act, 2008: s.6(7) – G
Continuation of investigation by the ATS Nanded, propriety of –
Investigation was initiated by the ATS Nanded following the
registration of the FIR on 14 July 2016, on receipt of source
information that appellant-N was in contact over the internet with
members of IS/ISIS/ISIL/Daesh – This led to arrest of four accused
H
353
354 SUPREME COURT REPORTS [2021] 10 S.C.R.
A persons, including appellant-N and one ‘M’ – Thereafter, considering
the gravity of the offence involved, the Central government directed
the NIA Mumbai to take up further investigation of the case on 8
September 2016, exercising its powers under s.6(4) of the NIA Act
– NIA Mumbai re-numbered the case on 14 September 2016 –
However, the NIA Mumbai intimated the ATS Nanded to transfer the
B
case records to them on 23 November 2016, and it was only on 8
December 2016 that the records were handed over to the NIA
Mumbai by the ATS Nanded – Meanwhile, ATS Nanded had filed
the charge-sheet before the CJM, Nanded on 7 October 2016 (which
was prior to even the letter of the NIA Mumbai dated 23 November
C 2016 for the handing over of the case records) – Likewise, the CJM,
Nanded took cognizance of the offence and committed the case to
trial before the ASJ, Nanded on 18 October 2016 – While the NIA
Mumbai may have re-numbered the case file on 14 September 2016,
it could not have taken the initial step of its investigation into the
case till it had access to the case papers, which it only received
D
from the ATS Nanded on 8 December 2016 – Thus, the mere
renumbering of the case filed by the NIA Mumbai did not take away
the power of the ATS Nanded to continue the investigation – The
said authority could do so till the records of the case were received
by the NIA Mumbai – Hence, the investigation conducted by the
E ATS Nanded prior to this was within the mandate of sub-Section (7)
of s.6 of the NIA Act – The said provision is clarificatory in nature
so as to remove any doubt about the duty of the officer in-charge of
the police station to continue the investigation till the ‘Agency’, i.e.,
the NIA Mumbai in the instant case, took up the investigation on
receipt of the case papers – Therefore, the continuation of the
F
investigation, and the filing of the charge-sheet upon its conclusion,
by the ATS Nanded was in terms of the statutory mandate under
s.6(7) of the NIA Act.
National Investigation Agency Act, 2008: ss.10, 11 –
Jurisdiction of CJM Nanded for remand and committal to trial – A
G reading of s.10 of the NIA Act indicates that there is no embargo on
the State Investigating Agency to investigate a scheduled offence,
which would include offences under the UAPA – Consequently, till
the investigation was taken up by the NIA Mumbai, the ATS Nanded
was acting within jurisdiction in investigating the offence and filing
H
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 355
the charge-sheet in the instant case – NIA Mumbai took up the A
investigation only on 8 December 2016 after receiving the records
from the ATS Nanded, and thereupon it filed an application for
transfer of the case from the ASJ, Nanded to the NIA Special Court,
Mumbai constituted under s.11 of the NIA Act – However, till the
NIA Mumbai took over the investigation, jurisdiction would reside
B
with a Court which ordinarily had it – The Government of
Maharashtra in exercise of powers conferred by s.11 read with s.185
of the CrPC had issued a notification dated 26 August 2016
designating the CJM, Nanded as the remand court and the ASJ,
Nanded as a Special Court for the trial of cases filed by the ATS
Nanded – There was no challenge to the said notification – In this C
backdrop, the CJM, Nanded was designated as a Court of remand
and the ASJ, Nanded as a Special Court under the CrPC for the
trial of cases filed by the ATS Nanded – Hence, they both had the
jurisdiction to entertain the instant case under the UAPA till the
NIA Mumbai took over the investigation on 8 December 2016, and
D
sought a transfer of the case to the NIA Special Court at Mumbai
constituted under s.11 of the NIA Act – Jurisdiction.
Dismissing the appeals, the Court
HELD: 1. Section 2(a) of the NIA Act defines the expression
“Agency” to mean the “National Investigation Agency” E
constituted under Section 3. The expression “Scheduled Offence”
is defined in Section 2(g) to mean offences specified in the
Schedule to the NIA Act. Section 2(h) defines the expression
“Special Court” to mean a Special Court constituted under Section
11, or as the case may be, under Section 22. Further, words and
expressions used but not defined in the NIA Act, but defined in F
the CrPC, have the meaning assigned to them in the CrPC. The
NIA has been constituted as “a special agency” under Section
3(1) for the investigation and prosecution of offences under
the enactments specified in the Schedule to the NIA Act.
[Para 20][371-F-H; 372-A] G
2. The salient aspects which emerge from the provisions
of Section 6 are: On the receipt and recording of information
under Section 154 of the CrPC relating to a scheduled offence
under the NIA Act, a report must be forwarded to the State
government by the officer in-charge of the police station (sub- H
356 SUPREME COURT REPORTS [2021] 10 S.C.R.
A Section (1) of Section 6); The State government on receipt of the
report under sub-Section (1) must, as expeditiously as possible,
forward it to the Central government (sub-Section (2) of Section
6); The purpose of the first and second steps embodied in sub-
Sections (1) and (2) of Section 6 is to enable the Central
government to make a decision in terms of sub-Section (3); Upon
B
receiving a report from the State government, the Central
government must determine within fifteen days, on the basis of
the information made available by the State government or
received from other sources, whether:(a) the offence is a
scheduled offence; and (b) if it is fit case to be investigated by the
C NIA, having regard to the gravity of the offence and other relevant
factors (sub-Section (3) of Section 6); If the Central government
is of the opinion that the offence is a scheduled offence and it is a
fit case to be investigated by the NIA, it shall direct the NIA to
investigate the offence (sub-Section (4) of Section 6); An
overriding power is entrusted to the Central government (evident
D
from the incorporation of a non-obstante provision in sub-Section
(5)) to suo motu direct the NIA to investigate the offence if it is of
the opinion that: (a) a scheduled offence has been committed
under the NIA Act; and (b) that it is required to be investigated
by the NIA (sub-Section (5) of Section 6); Upon the issuance of a
E direction by the Central government under sub-Sections (4) or
(5) of Section 6, two consequences emanate under sub-Section
(6) of Section 6: (a) the State government and any police officer
of the State government investigating the offence shall not
proceed with the investigation; and (b) the relevant documents
and records must be transmitted to the NIA forthwith (sub-Section
F
(6) of Section 6); By way of abundant caution (“for the removal of
doubts”), sub-Section (7) of Section 6 contains a declaration that
till the NIA “takes up the investigation of the case”, it shall be
the duty of the office in-charge of the police station to continue
the investigation (sub-Section (7) of Section 6); The provisions
G of sub-Sections(6) and (7) of Section 6 must be read together and
in harmony in order to fulfill the purpose and intent of the
Parliament in a holistic manner; The object and underlying
purpose of sub-Section (7) is to ensure that there is no hiatus in
H
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 357
the course of the investigation. Hence, while sub-Section (6) A
stipulates a two-fold requirement, that upon the issuance of a
direction under sub-Sections (4) or (5) of Section 6 neither the
State government nor the police shall proceed with the
investigation and must transmit the documents and records to
the NIA forthwith, sub-Section (7) imposes a statutory obligation
B
on the officer in-charge of the police station to continue the
investigation till the NIA actually takes over; While enacting the
provisions of sub-Section (7) of Section 6, the Parliament was
conscious of the fact that an interlude may occur between the
date of the issuance of a direction and the actual taking up of the
investigation by the NIA. However, between the issuance of a C
direction under sub-Sections (4) or (5) of Section 6 and the actual
taking up of the investigation by the NIA, there should be no
hiatus in the investigation to the detriment of the interests of
national security involved in the enactment of the legislation.
[Para 22][373-F-H; 374-A-H; 375-A-D]
D
3. Section 7 indicates that while investigating an offence
under the NIA Act, the NIA may, having regard to the gravity of
the offence and other relevant factors, either: (i) Request the
State government to associate itself with the investigation, if it is
expedient to do so; or (ii) Transfer the case to the State
government for investigation and trial of the offence with the E
previous approval of the Central government. Section 9 mandates
that the State government shall extend all assistance and
cooperation to the NIA for the investigation of scheduled
offences. The plain language of Section 10 indicates that unless
there is a contrary provision in the NIA Act, nothing contained in F
it would 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. Hence, unless the power which is
entrusted to the State government by Section 10 to investigate
(and prosecute) a scheduled offence under the NIA Act is taken
away by a provision of the same statute, that power is preserved G
by Section 10. Therefore, what emerges is that upon the issuance
of a direction under sub-Sections (4) and (5) of Section 6, the
State government and a police officer of the State government
H
358 SUPREME COURT REPORTS [2021] 10 S.C.R.
A investigating the offence are not to proceed with the investigation
and have to forthwith transmit the documents and records to the
NIA (Section 6(6)) but equally, it is the duty of the officer
incharge of the police station to continue the investigation till
the NIA actually takes up the investigation of the case (Section
6(7)). In other words, the power of the officer in-charge of the
B
police station to continue with the investigation is denuded upon
the issuance of a direction under sub-Sections (4) or (5) of Section
6 and the NIA actually taking up the investigation of the case.
Thus, both the issuance of directions under sub-Sections (4) and
(5) of Section 6 and the NIA actually taking up the investigation
C of the case would result in the power of the officer in-charge of
the police station being denuded. Until then, the power of the
State government to investigate and prosecute any scheduled
offence, by virtue of the provisions of Section 10, is preserved.
[Paras 24, 25, 26 and 27][375-F-G; 376-A-G; 377-A-B]
D 4. Section 11(1) of the NIA Act empowers the Central
government to constitute Special Courts “for the trial of
scheduled offences”. Under sub-Section (1) of Section 13, every
scheduled offence which has been investigated by the NIA shall
be tried only by the Special Court within whose local jurisdiction
the offence was committed. The exclusive jurisdiction which is
E conferred on the Special Court to try a scheduled offence
investigated by the NIA is amplified by the non-obstante provision
which overrides the provisions contained in the CrPC. Section
22(1) empowers the State government to constitute Special Courts
for the trial of offences under the enactments which have been
F specified in the Schedule to the NIA Act, and which have
been investigated by the State Investigative Agency.
[Para 32][378-G-H; 379-A]
5. Continuation of investigation by the ATS Nanded
The submission of the appellants is that once the Central
G government directed the NIA Mumbai to take over the
investigation under Section 6(4), the consequence under Section
6(6) was that ATS Nanded could not continue with the investigation
(and file a charge-sheet) thereafter. The plain text of Section 6
indicates that the above proposition is incorrect. Sub-Section (4)
H of Section 6 contemplates a direction by the Central government
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 359
to the NIA to investigate an offence, where it is of the opinion A
that the offence is a scheduled offence and that it is fit to be
investigated by the NIA. Sub-Section (5) also confers a suo motu
power on the Central government to direct the NIA to investigate
a scheduled offence. Under sub-Section (6), upon the issuance of
a direction under sub-Sections (4) or (5) of Section 6, the State
B
government and the officer in-charge of the police station
investigating the offence “shall not proceed with the investigation
and shall forthwith transmit the relevant documents and records
to the [NIA]”. However, this stipulation has to be read in the
context of sub-Section (7), under which the investigation by the
officer in-charge of the police station has to continue till the NIA C
takes up the investigation of the case. Sub-Section (7) is a
provision for the “removal of doubts”. Such a provision clarifies
the intent of the law-maker so as to place it beyond the realm of
ambiguity. Hence, on a conjoint reading of sub-Sections (4), (5),
(6) and (7) of Section 6, what emerges is that the ATS Nanded
D
had a duty to continue with the investigation till the NIA Mumbai
actually took over the investigation from it. [Para 33][379-B-F]
H N Rishbud and Inder Singh v. State of Delhi [1955] 1
SCR 1150; Ramsinh Bavaji Jadeja v. State of Gujarat
(1994) 2 SCC 685 : [1994] 2 SCR 239; Union of India
v. Prakash P. Hinduja (2003) 6 SCC 195 : [2003] 1 E
Suppl. SCR 307; Bikramjit Singh v. State of Punjab
(2020) 10 SCC 616; M Ravindran v. Intelligence
Officer, Directorate of Revenue Intelligence (2021) 2
SCC 485; Sadique v. State of Madhya Pradesh 2021
(12) SCALE 401; Fakhrey Alam v. State of Uttar F
Pradesh 2021 SCC OnLine SC 532 – relied on.
6. An investigation commences upon the receipt of
information by the police which discloses the commission of a
cognizable offence. However, the mere receipt and recording of
such information (through an FIR) by itself does not mean that G
the investigation has also commenced. Rather, the investigation
commences when the police takes the first step (of proceeding
to the spot or collecting evidence or speaking to a witness or
arresting the accused person) on the basis of such information.
H
360 SUPREME COURT REPORTS [2021] 10 S.C.R.
A In the present case, the investigation was initiated by the ATS
Nanded following the registration of the FIR on 14 July 2016, on
receipt of source information that appellant-N was in contact over
the internet with members of IS/ISIS/ISIL/Daesh. This led to the
arrest of four accused persons, including appellant-N and one
‘M’. Thereafter, considering the gravity of the offence involved,
B
the Central government directed the NIA Mumbai to take up
further investigation of the case on 8 September 2016, exercising
its powers under Section 6(4) of the NIA Act. The NIA Mumbai
re-numbered the case on 14 September 2016. However, the NIA
Mumbai intimated the ATS Nanded to transfer the case records
C to them on 23 November 2016, and it was only on 8 December
2016 that the records were handed over to the NIA Mumbai by
the ATS Nanded. ATS Nanded filed the charge-sheet before the
CJM, Nanded on 7 October 2016 (which was prior to even the
letter of the NIA Mumbai dated 23 November 2016 for the
handing over of the case records). Likewise, the CJM, Nanded
D
took cognizance of the offence and committed the case to
trial before the ASJ, Nanded on 18 October 2016. [Paras 37,
38][383-A-F]
7. The contention of the ATS Nanded is that the
investigation by them until the NIA Mumbai took up the
E investigation of the case was in terms of the mandate of sub-
Section (7) of Section 6 since the provision states that “till the
[NIA] takes up the investigation of the case, it shall be the duty
of the officer in-charge of the Police Station to continue the
investigation”. In the present case, the NIA Mumbai intimated
F the ATS Nanded to transfer the case papers on 23 November
2016, following which the ATS Nanded sent the papers on 8
December 2016. While the NIA Mumbai may have re-numbered
the case file on 14 September 2016, it could not have taken the
initial step of its investigation into the case till it had access to
the case papers, which it only received from the ATS Nanded on
G 8 December 2016. Thus, the mere renumbering of the case filed
by the NIA Mumbai did not take away the power of the ATS
Nanded to continue the investigation. The said authority could
do so till the records of the case were received by the NIA
Mumbai. Hence, the investigation conducted by the ATS Nanded
H prior to this was within the mandate of sub-Section (7) of Section
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 361
6 of the NIA Act. The said provision is clarificatory in nature so A
as to remove any doubt about the duty of the officer in-charge of
the police station to continue the investigation till the ‘Agency’,
i.e., the NIA Mumbai in the instant case, took up the investigation
on receipt of the case papers. Therefore, the continuation of the
investigation, and the filing of the charge-sheet upon its
B
conclusion, by the ATS Nanded was in terms of the statutory
mandate under Section 6(7) of the NIA Act. [Para 39][383-F-H;
384-A-C]
8. CJM, Nanded’s jurisdiction for remand and committal
to trial
C
Sub-Section (1) of Section 11 empowers the Central
government to constitute Special Courts “for the trial of
scheduled offence”. Sub-Section (1) of Section 13 provides that,
notwithstanding anything contained in the CrPC, every scheduled
offence investigated by the NIA shall be tried only by the Special
Court. Hence, the exclusive jurisdiction of the Special Court to D
try a scheduled offence under sub-Section (1) of Section 13
attaches where the scheduled offence has been “investigated by
the [NIA]”. Further, sub-Section (1) of Section 16 is an enabling
provision which empowers a Special Court to take cognizance of
any offence without the accused being committed to it for trial E
upon receiving a complaint of facts which constitute such offence
or upon a police report of such offence. However, this clearly
would not affect either the antecedent investigation by the ATS
Nanded prior to the NIA Mumbai having taken up the
investigation or the submission of the charge-sheet as a logical
consequence of the investigation which was conducted by the F
ATS Nanded. The enabling provisions of sub-Section (1) of Section
16 would not invalidate the submission of the charge-sheet to
the CJM, Nanded or the order of committal made to the ASJ,
Nanded. [Para 40][384-E-H; 385-A]
9. In the present case, the appellants were arrested on 14 G
July 2016. The charge-sheet was submitted on 7 October 2016.
The 90 days period of remand would have been completed on 14
October 2016. Applying the principles enunciated in Bikramjit
Singh (in relation to the power of the CJM to extend investigation
upto 180 days) to the present case (in relation to the jurisdiction H
362 SUPREME COURT REPORTS [2021] 10 S.C.R.
A of the CJM in relation to remand and committal of case to trial),
the first consideration would be whether there existed a Special
Court under Section 22 of the NIA Act to divest the CJM, Nanded
of its jurisdiction. The appellants have produced various
notifications issued by the Government of Maharashtra
designating Special Courts under Section 22 for trial of schedules
B
offences under the NIA Act. The earliest of those notifications is
dated 13 April 2017. Hence, the principle enunciated by this Court
in Bikramjit Singh would not apply to the present case since there
existed no Special Courts in the State of Maharashtra designated
under Section 22 of the Act (since the investigation was being
C conducted by the ATS Nanded, which had the jurisdiction over
the case). [Para 47][391-A-C, E]
10. A reading of Section 10 of the NIA Act indicates that
there is no embargo on the State Investigating Agency to
investigate a scheduled offence, which would include offences
D under the UAPA. Consequently, till the investigation was taken
up by the NIA Mumbai, the ATS Nanded was acting within
jurisdiction in investigating the offence and filing the charge-sheet
in the present case. Both of these took place prior to 8 December
2016, which is when the investigation was handed over to the
NIA Mumbai. Admittedly, once the NIA Mumbai took up the
E investigation, the Special Court designated under Section 11 of
the NIA Act would have sole jurisdiction to try the case. In the
present case, the NIA Mumbai took up the investigation only on
8 December 2016 after receiving the records from the ATS
Nanded, and thereupon it filed an application for transfer of the
F case from the ASJ, Nanded to the NIA Special Court, Mumbai
constituted under Section 11 of the NIA Act. However, till the
NIA Mumbai took over the investigation, jurisdiction would reside
with a Court which ordinarily had it. The Government of
Maharashtra in exercise of powers conferred by Section 11 read
with Section 185 of the CrPC issued a notification dated 26 August
G 2016 designating the CJM, Nanded as the remand court and the
ASJ, Nanded as a Special Court for the trial of cases filed by the
ATS Nanded. There is no challenge to the notification dated 26
August 2016. In this backdrop, the CJM, Nanded has been
H
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 363
designated as a Court of remand and the ASJ, Nanded as a Special A
Court under the CrPC for the trial of cases filed by the ATS
Nanded. Hence, they both had the jurisdiction to entertain the
present case under the UAPA till the NIA Mumbai took over the
investigation on 8 December 2016, and sought a transfer of the
case to the NIA Special Court at Mumbai constituted under
B
Section 11 of the NIA Act. [Paras 48, 49][391-F-H; 392-A-D]
Case Law Reference
[1955] 1 SCR 1150 relied on para 34
[1994] 2 SCR 239 relied on para 35
C
[2003] 1 Suppl. SCR 307 relied on para 36
(2020) 10 SCC 616 relied on para 44
(2021) 2 SCC 485 relied on para 45
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
D
No.1165 of 2021.
From the Judgment and Order dated 05.07.2018 of the High Court
of Judicature at Bombay in Writ Petition No.5022 of 2017.
With
Criminal Appeal No.1166 of 2021. E
Colin Gonsalves, Sr. Adv., Farrukh Rasheed, Abu Bakr Sabbaq,
Ms. Olivia Bang, Satya Mitra, Advs. for the Appellant.
K. M. Nataraj, ASG, Ms. Sairica Raju, Kanu Agarwal, Ms. Swati
Ghildiyal, Zoheb Hussain, B. V. Balaram Das, Rahul Chitnis, Sachin F
Patil, Aaditya A. Pande, Geo Joseph, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are: G
A Facts
B Submissions
C Provisions of the NIA Act
H
364 SUPREME COURT REPORTS [2021] 10 S.C.R.
A D Continuation of investigation by the ATS Nanded
E CJM, Nanded’s jurisdiction for remand and committal to trial
F Conclusion
A Facts
B 1. This batch of two appeals arises from a judgment dated 5 July
2018 of a Division Bench of the High Court of Judicature at Bombay.
2. On 14 July 2016, an FIR1 was registered under Sections 120-B
and 471 of the Indian Penal Code 18602 read with Sections 13, 16, 18,
18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 1967 3
C and Sections 4, 5 and 6 of the Explosive Substances Act 1908 4. It was
registered with the Anti-Terrorism Squad5 at the Kala Chowki Police
Station Mumbai on the basis of written information provided by Manik
Vitthal Rao Bedre6, against two persons: (i) Naser Bin Abu Bakr Yafai
(the appellant in the first of the two appeals7); and (ii) Farooq (who was
D residing in Syria). The complaint alleged that the ATS had received source
information that Naser Bin Abu BakrYafai was in contact through the
internet with members of the Islamic State8/Islamic State of Iraq and
Syria9/Islamic State of Iraq and Levant10/Daesh, terrorist organizations
banned by the United Nations and the Indian Government. He was alleged
to have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh)
E in making bombs/IEDs to cause a blast during the month of Ramzan, for
which he had procured the required material in July 2016. The ATS
arrested four persons from Parbhani, namely: (i) Naser Bin Abu Bakr
Yafai; (ii) Mohammad Shahed Khan (the appellant in the companion
appeal11); (iii) Iqbal Ahmed; and (iv) Mohammad Raisuddin.
F 3. On 26 August 2016, the Government of Maharashtra, in exercise
of powers conferred by Section 11 read with Section 185 of the Code of
1
CR No 8 of 2016
2
“IPC”
3
“UAPA”
4
G “ES Act”
5
“ATS”
6
A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra
7
Criminal Appeal No 1165 of 2021
8
“IS”
9
“ISIS”
10
“ISIL”
11
H Criminal Appeal No 1166 of 2021
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 365
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Criminal Procedure 197312 issued a notification designating the Chief A
Judicial Magistrate13, Nanded, as a Court of remand and the Court of
Additional Sessions Judge14, Nanded, as a Special Court to try cases
filed by the ATS Nanded.
4. On 8 September 2016, the Ministry of Home Affairs of the
Union government15 directed the National Investigation Agency16 to take B
over further investigation in the present case by exercising powers under
Section 6(4) of the National Investigation Agency Act 200817. On 14
September 2016, the NIA Mumbai renumbered the case18 for taking up
further investigation.
5. The ATS continued with the investigation and filed a charge- C
sheet on 7 October 2016 against the aforesaid accused persons under
Sections 120-B and 471 of the IPC read with Sections 13, 16, 18, 18-B,
20, 38 and 39 of the UAPA and Sections 4, 5 and 6 of the ES Act before
the CJM, Nanded. The CJM, Nanded took cognizance of the offence
and on 18 October 2016 committed the case19 to the Court of ASJ,
Nanded. D
6. On 23 November 2016, the NIA Mumbai informed the ATS
Nanded of having taken over the investigation and sought the papers/
records of the case. On 8 December 2016, the ATS Nanded handed
over the case papers to the NIA Mumbai. At present, the NIA Mumbai
is seized of the matter and is conducting further investigation. E
7. During the course of the above events, Naser Bin Abu Bakr
Yafai had filed an application on 21 October 2016 before the ASJ, Nanded,
under Section 167(2) of the CrPC. In his application, he contended that
the offences under the UAPA are scheduled offences under the NIA
Act, and hence, the CJM, Nanded had no jurisdiction to pass an order on F
remand, to take cognizance and pass an order of committal of the
proceedings to the ASJ, Nanded since it was not a “Court” established
under Sections 11 or 22 of the NIA Act. On 14 November 2016, the
ASJ, Nanded rejected Naser Bin Abu Bakr Yafai’s application since, at
12
“CrPC” G
13
“CJM”
14
“ASJ”
15
F.No. 11011/24/2016-IS.IV
16
“NIA”
17
“NIA Act”
18
RC-03/2016/NIA/MUM
19
Sessions Case No 106 of 2016 H
366 SUPREME COURT REPORTS [2021] 10 S.C.R.
A that time, the NIA Mumbai had not taken over the investigation from the
ATS Nanded and hence, the ATS Nanded had to continue with the
investigation under Section 6(7) of the NIA Act. Therefore, the ATS
Nanded, in light of the notifications issued by the Government of
Maharashtra, was held to have correctly filed the charge-sheet before
the CJM, Nanded who committed the case to trial before the ASJ, Nanded.
B
8. The appellant filed a criminal writ petition20 before the High
Court of Judicature at Bombay to challenge the order of the ASJ, Nanded.
During the pendency of the petition, the NIA Mumbai filed an
application21 under Section 407(2) of the CrPC before the High Court
seeking transfer of the records and proceedings in the trial from the
C ASJ, Nanded to the NIA Special Court, Mumbai on the ground that the
NIA Mumbai was taking up further investigation of the case.
9. By judgment and order dated 5 July 2018, a Division Bench of
the High Court dismissed the writ petition filed by Naser Bin Abu Bakr
Yafai and allowed the application filed by NIA Mumbai and transferred
D the case from the Court of the ASJ, Nanded to the NIA Special Court,
Mumbai. The High Court observed that the power of investigation by
the police officer of the State government would cease only after the
NIA takes over the investigation of a scheduled offence. Further, in the
view of the High Court, the NIA Mumbai had taken over the investigation
E in the present case only on 8 December 2016, when it had received the
papers from ATS Nanded. The High Court also held that the ASJ, Nanded
had jurisdiction under the CrPC to try the offences under the UAPA,
even though they were scheduled offences under the NIA Act, until the
investigation was entrusted to and taken over by the NIA, after which
the Special Court constituted under Section 11 of the NIA Act would
F exclusively try such scheduled offences. Naser Bin Abu Bakr Yafai
then filed a special leave petition22 before this Court challenging the order
of the Bombay High Court.
10. On the other hand, on 4 September 2017, Mohammad Shahed
Khan (the appellant in the companion appeal) had written a letter to the
G Chief Justice of the Bombay High Court for his release and arguing that
his detention was illegal since the ATS Nanded could not have filed the
charge-sheet once the NIA Mumbai had taken over the investigation.
20
Criminal Writ Petition No 5022 of 2017
21
Criminal Application No 27 of 2017
H 22
“SLP”
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 367
[DR. DHANANJAYA Y CHANDRACHUD, J.]
The letter was converted into a writ petition, and is pending before the A
Bombay High Court.
11. Mohammad Shahed Khan also filed an application for bail
before the NIA Special Court, Mumbai on 27 April 2021, which was
rejected by an order dated 22 June 2021. While dismissing Mohammad
Shahed Khan’s application, the NIA Special Court, Mumbai observed B
that:
“15. Considering the fact that the issue in respect of jurisdiction
for remand, cognizance and committal of the case has already
been decided by the Learned Sessions Judge, Nanded and that
the same has been confirmed by the Hon’ble Bombay High Court, C
wherein the applicant was also one of the parties, he cannot be
allowed to reopen said issue before this court. Therefore, I am of
the view that the application being devoid of substance, deserves
to be rejected.”
12. Mohammad Shahed Khan then filed an SLP to challenge the
D
judgment and order dated 5 July 2018, though he was not a party to the
proceedings before the Bombay High Court.
B Submissions
13. The SLPs which invoke the jurisdiction of this Court under
Article 136 have been instituted essentially on two grounds. The first E
ground is that once the Central government entrusted the investigation
to the NIA under Section 6(4) of the NIA Act, ATS Nanded had no
jurisdiction to continue with the investigation into a scheduled offence
under the NIA Act. The second ground is that since the offences under
the UAPA are scheduled offences under the NIA Act, even if investigated
by the State Investigating Agency, they would be exclusively triable by a F
Special Court constituted under the NIA Act and the CJM, Nanded had
no jurisdiction to remand the accused persons and commit the case for
trial before the ASJ, Nanded.
14. The above submissions have been advanced during the course
of arguments by Mr Farrukh Rasheed, Counsel appearing on behalf of G
Naser Bin Abu Bakr Yafai. Buttressing the submissions, Mr Rasheed
urged that:
(i) The expression “Special Court” as defined in Section 2(h)
of the NIA Act is to mean a Special Court constituted under
Section 11 or, as the case may be, under Section 22; H
368 SUPREME COURT REPORTS [2021] 10 S.C.R.
A (ii) Where the Central government issues a direction, upon the
formation of an opinion that the offence is a scheduled
offence and is fit to be investigated by the NIA, the
consequence is provided by sub-Section (6) of Section 6;
(iii) Upon the issuance of a direction under sub-Section (4) or
B sub-Section (5) of Section 6, neither the State government
nor a police officer of the State Agency investigating the
offence can proceed with the investigation and must
forthwith transmit the relevant documents and records to
the NIA;
C (iv) Section 11 empowers the Central government to constitute
Special Courts for the trial of scheduled offences, while
Section 22 empowers the State governments to constitute
Special Courts for the trial of offences specified in the
Schedule to the NIA Act;
D (v) In the present case, in spite of a direction under Section
6(4), the ATS Nanded continued with its investigation and
filed a charge-sheet in breach of the provisions of sub-
Section (6) of Section 6; and
(vi) Since all offences punishable under the UAPA are scheduled
E offences under the NIA Act, the CJM, Nanded is divested
of their jurisdiction. Further, since a Special Court was
designated by the Government of Maharashtra under Section
22, only that Court had jurisdiction in the present case.
15. Advancing his submissions in the companion appeal, Mr Colin
Gonsalves, Senior Counsel appearing on behalf of Mohammad Shahed
F
Khan submitted that:
(i) The registration of an FIR on 14 September 2016 by NIA
Mumbai was the beginning of the investigation by them;
(ii) After the FIR was renumbered by the NIA on 14 September
G 2016, the ATS Nanded continued to investigate and filed a
charge-sheet before the CJM, Nanded on 7 October 2016;
(iii) Sub-Sections (4) and (6) of Section 6 of the NIA Act contain
three stipulations:
(a) The Central government, where it is of the opinion
H that the offence is a scheduled offence and is fit to
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 369
[DR. DHANANJAYA Y CHANDRACHUD, J.]
be investigated by the NIA, shall direct the NIA to A
investigate the offence;
(b) Upon the issuance of such a direction under sub-
Section (4), the State government and its Police
Officers shall not proceed with the investigation any
further; and B
(c) The relevant documents and records must be
transmitted to the NIA forthwith;
(iv) The NIA Act and the UAPA are criminal statutes of the
utmost severity, and there is a statutory obligation upon the
NIA and the State Police Agency to collect papers C
immediately and transmit them to the NIA, respectively;
(v) In the alternative, and even assuming that the State Police
could have investigated, the charge-sheet filed before the
CJM, Nanded is a nullity because it could have been filed
only in the Special Court constituted under Section 22 of D
the NIA Act; and
(vi) The committal proceedings are also a nullity because Section
16(1) empowers the Special Court to take cognizance of
any offence without the committal of the accused to it for
trial, and hence the charge-sheet ought to have been filed E
by the ATS Nanded in a Special Court in view of the
provisions of Section 22.
On the basis of the above submissions, Mr Gonsalves, urged that
since the charge-sheet was not filed within the stipulated period in a
proper court entrusted with jurisdiction, the accused have an indefeasible F
right to bail under the provisions of Section 43D of the UAPA.
16. The above submissions have been contested by Mr K M
Nataraj, Additional Solicitor General23 appearing on behalf of the NIA.
The ASG urged that:
G
(i) Sub-Section (7) of Section 6 of the NIA Act declares, for
the removal of doubts, that till the NIA takes up the
investigation of the case, it shall be the duty of the officer-
in-charge of the police station to continue the investigation;
23
“ASG” H
370 SUPREME COURT REPORTS [2021] 10 S.C.R.
A (ii) The expression “it shall be the duty” connotes that it is
obligatory for the officer-in-charge of the police station to
continue with the investigation till the investigation is taken
up by the NIA;
(iii) In other words, until the State Police is informed or intimated
B by the NIA of the case having been taken up for
investigation, the officer-in-charge of the police station is
under a mandate to investigate;
(iv) If the submission which is urged by the appellants is
accepted, that would result in a vacuum in the investigation
C between the date of the issuance of a direction under
Section 6(4) and the actual taking over of the investigation
by the NIA;
(v) Section 10 of the NIA Act recognises the powers of the
State government to investigate scheduled offences;
D (vi) Section 13 prescribes that every scheduled offence
investigated by the “Agency” shall be tried only by the
Special Court within whose local jurisdiction it was
committed. The expression “Agency” is defined in Section
2(a) as the “National Investigation Agency” and as a
E consequence of Section 13, no embargo is placed on any
other Court until such time as the scheduled offence is
investigated by the NIA;
(vii) The provisions of the NIA Act have to be construed
harmoniously so as to achieve its purposes;
F (viii) Sections 13 and Section 22 only govern the trial of offences
and not pre-trial procedures;
(ix) The enabling provisions under Section 16(1) for a Special
Court to take cognizance of any offence without the accused
being committed to it for trial would not render the order of
G the CJM, Nanded a nullity in the present case; and
(x) In this context, the principles which are enunciated in
Section 465 of the CrPC would stand attracted.
17. Adopting the submissions of Mr K M Nataraj, Mr Rahul Chitnis,
Standing Counsel for the State of Maharashtra urged that:
H
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 371
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(i) The mandate of Section 6 is that unless relevant documents A
and records are transmitted, the NIA would not be construed
to have taken up the investigation;
(ii) On 23 November 2016, NIA Mumbai intimated the ATS
Nanded to transfer the case records, following which on 8
December 2016, the papers and records were transmitted; B
and (iii) While construing the provisions of the NIA Act,
which deals with serious offences bearing on national
security, no vacuum can be allowed to exist in the
investigation. Hence, both the investigation by the ATS
Nanded and the filing of the charge-sheet before the CJM,
Nanded on 7 October 2016, were before the investigation C
was handed over to the NIA Mumbai. Therefore, there
was no illegality and the appeals should be dismissed.
18. The rival submissions now fall for consideration.
C Provisions of the NIA Act D
19. The long title to the NIA Act elaborates upon its object, and
the intent of Parliament in enacting the law. According to the long title,
the NIA Act is:
“An Act to constitute an investigation agency at the national level
to investigate and prosecute offences affecting the sovereignty, E
security and integrity of India, security of State, friendly relations
with foreign States and offences under Acts enacted to implement
international treaties, agreements, conventions and resolutions of
the United Nations, its agencies and other international
organisations and for matters connected therewith or incidental F
thereto.”
20. Section 2(a) of the NIA Act defines the expression “Agency”
to mean the “National Investigation Agency” constituted under Section
3. The expression “Scheduled Offence” is defined in Section 2(g) to
mean offences specified in the Schedule to the NIA Act. Section 2(h)
G
defines the expression “Special Court” to mean a Special Court
constituted under Section 11, or as the case may be, under Section 22.
Further, words and expressions used but not defined in the NIA Act, but
defined in the CrPC, have the meaning assigned to them in the CrPC.
The NIA has been constituted as “a special agency” under Section 3(1)
for the investigation and prosecution of offences under the enactments H
372 SUPREME COURT REPORTS [2021] 10 S.C.R.
A specified in the Schedule to the NIA Act. The Schedule to the Act is
extracted below:
“1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
B 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
C (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
D (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under—
(a) Chapter VI of the Indian Penal Code (45 of 1860) [sections
121 to 130 (both inclusive)];
E (b) Sections 489-A to 489-E (both inclusive) of the Indian Penal
Code (45 of 1860).”
21. The controversy in the batch of appeals before this Court
revolves substantially on the interpretation of Section 6 of the NIA Act.
Section 6 is extracted below, as it stood before its amendment with effect
F from 2 August 2019:
“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
G 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.
H
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 373
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(3) On receipt of report from the State Government, the Central A
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
B
is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that the offence
is a Scheduled Offence and it is a fit case to be investigated by
the Agency, it shall direct the Agency to investigate the said
offence.
C
(5) Notwithstanding anything contained in this section, if the Central
Government is of the opinion that a Scheduled Offence has been
committed which is required to be investigated under this Act, it
may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or
D
sub-section (5), the State Government and any police officer of
the State Government investigating the offence shall not proceed
with the investigation and shall forthwith transmit the relevant
documents and records to the Agency.
(7) For the removal of doubts it is hereby declared that till the
Agency takes up the investigation of the case it shall be the duty E
of the officer-in-charge of the police station to continue the
investigation.”
22. The salient aspects which emerge from the provisions of
Section 6 need to be formulated at this stage. They are:
F
(i) On the receipt and recording of information under Section
154 of the CrPC relating to a scheduled offence under the
NIA Act, a report must be forwarded to the State
government by the officer in-charge of the police station
(sub-Section (1) of Section 6);
(ii) The State government on receipt of the report under sub- G
Section (1) must, as expeditiously as possible, forward it to
the Central government (sub-Section (2) of Section 6);
(iii) The purpose of the first and second steps embodied in sub-
Sections (1) and (2) of Section 6 is to enable the Central
government to make a decision in terms of sub-Section (3); H
374 SUPREME COURT REPORTS [2021] 10 S.C.R.
A (iv) Upon receiving a report from the State government, the
Central government must determine within fifteen days, on
the basis of the information made available by the State
government or received from other sources, whether:(a)
the offence is a scheduled offence; and(b)if it is fit case to
be investigated by the NIA, having regard to the gravity of
B
the offence and other relevant factors (sub-Section (3) of
Section 6);
(v) If the Central government is of the opinion that the offence
is a scheduled offence and it is a fit case to be investigated
by the NIA, it shall direct the NIA to investigate the offence
C (sub-Section (4) of Section 6);
(vi) An overriding power is entrusted to the Central government
(evident from the incorporation of a non-obstante provision
in sub-Section (5)) to suo motu direct the NIA to investigate
the offence if it is of the opinion that: (a) a scheduled offence
D has been committed under the NIA Act; and (b) that it is
required to be investigated by the NIA (sub-Section (5) of
Section 6);
(vii) Upon the issuance of a direction by the Central government
under sub-Sections (4) or (5) of Section 6, two
E consequences emanate under sub-Section (6) of Section 6:
(a) the State government and any police officer of the State
government investigating the offence shall not proceed with
the investigation; and (b) the relevant documents and records
must be transmitted to the NIA forthwith (sub-Section (6)
F of Section 6);
(viii) By way of abundant caution (“for the removal of doubts”),
sub-Section (7) of Section 6 contains a declaration that till
the NIA “takes up the investigation of the case”, it shall be
the duty of the office in-charge of the police station to
G continue the investigation (sub-Section (7) of Section 6);
(ix) The provisions of sub-Sections (6) and (7) of Section 6 must
be read together and in harmony in order to fulfill the purpose
and intent of the Parliament in a holistic manner;
(x) The object and underlying purpose of sub-Section (7) is to
H ensure that there is no hiatus in the course of the
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 375
[DR. DHANANJAYA Y CHANDRACHUD, J.]
investigation. Hence, while sub-Section (6) stipulates a two- A
fold requirement, that upon the issuance of a direction under
sub-Sections (4) or (5) of Section 6 neither the State
government nor the police shall proceed with the
investigation and must transmit the documents and records
to the NIA forthwith, sub-Section (7) imposes a statutory
B
obligation on the officer in-charge of the police station to
continue the investigation till the NIA actually takes over;
and
(xi) While enacting the provisions of sub-Section (7) of Section
6,the Parliament was conscious of the fact that an interlude
may occur between the date of the issuance of a direction C
and the actual taking up of the investigation by the NIA.
However, between the issuance of a direction under sub-
Sections (4) or (5) of Section 6 and the actual taking up of
the investigation by the NIA, there should be no hiatus in
the investigation to the detriment of the interests of national D
security involved in the enactment of the legislation.
23. As a consequence, sub-Section (7) of Section 6 imposes a
duty on the officer in-charge of the police station to continue the
investigation till the NIA actually takes up the investigation of the case.
The taking up of the investigation by the NIA is evidently in pursuance E
of the directions issued under sub-Sections (4) or (5) of Section 6. Having
regard to the seriousness and gravity of the scheduled offences under
the NIA Act, the continuation of the investigation by the officer in-charge
of the police station is not a matter of discretion but a mandate imposed
by the peremptory words employed in sub-Section (7) of Section 6.
F
24. Now it is in this backdrop that it would be material to advert to
the relationship between the State Investigation Agencies and the NIA,
contemplated by the provisions of the enactment. Section 724 indicates
that while investigating an offence under the NIA Act, the NIA may,
24
G
“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.” H
376 SUPREME COURT REPORTS [2021] 10 S.C.R.
A having regard to the gravity of the offence and other relevant factors,
either:
(i) Request the State government to associate itself with the
investigation, if it is expedient to do so; or
(ii) Transfer the case to the State government for investigation
B
and trial of the offence with the previous approval of the
Central government.
25. Section 925 mandates that the State government shall extend
all assistance and cooperation to the NIA for the investigation of scheduled
C offences.
26. Further, Section 10 is in the following terms:
“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
D Government to investigate and prosecute any Scheduled Offence
or other offences under any law for the time being in force.”
The plain language of Section 10 indicates that unless there is a
contrary provision in the NIA Act, nothing contained in it would affect
the powers of the State government to investigate and prosecute any
E scheduled offence or other offences under any law for the time being in
force. Hence, unless the power which is entrusted to the State
government by Section 10 to investigate (and prosecute) a scheduled
offence under the NIA Act is taken away by a provision of the same
statute, that power is preserved by Section 10.
F 27. Therefore, what emerges is that upon the issuance of a direction
under sub-Sections (4) and (5) of Section 6, the State government and a
police officer of the State government investigating the offence are not
to proceed with the investigation and have to forthwith transmit the
documents and records to the NIA (Section 6(6)) but equally, it is the
G duty of the officer in-charge of the police station to continue the
investigation till the NIA actually takes up the investigation of the case
(Section 6(7)). In other words, the power of the officer in-charge of the
25
“9. State Government to extend assistance to National Investigation Agency.—The
State Government shall extend all assistance and co-operation to the Agency for
H investigation of the Scheduled Offences.”
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 377
[DR. DHANANJAYA Y CHANDRACHUD, J.]
police station to continue with the investigation is denuded upon the A
issuance of a direction under sub-Sections (4) or (5) of Section 6and the
NIA actually taking up the investigation of the case. Thus, both the
issuance of directions under sub-Sections (4) and (5) of Section 6 and
the NIA actually taking up the investigation of the case would result in
the power of the officer in-charge of the police station being denuded.
B
Until then, the power of the State government to investigate and prosecute
any scheduled offence, by virtue of the provisions of Section 10, is
preserved.
28. Sections 11 to 22 of the NIA Act are comprised in Chapter IV
which is titled “Special Courts”. Sub-Section (1) of Section 11 provided
C
as follows, before its amendment with effect from 2 August 2019:
“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.” D
29. Section 13 provides for the jurisdiction of the Special Courts.
Sub-Section (1) of Section 13is in the following terms:
“13. Jurisdiction of Special Courts.—
(1) Notwithstanding anything contained in the Code, every E
Scheduled Offence investigated by the Agency shall be tried only
by the Special Court within whose local jurisdiction it was
committed.”
30. Section 16 provides for the procedure and powers of the Special
Courts. Sub-Section (1) of Section 16 is in the following terms:
F
“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.” G
31. Under Section 22, the State government is empowered to
constitute one or more Special Courts for the trial of offences under the
enactments specified in the Schedule to the NIA Act. Section 22 is in
the following terms:
H
378 SUPREME COURT REPORTS [2021] 10 S.C.R.
A “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
B 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;
C (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-
D General of the State”.
(3) The jurisdiction conferred by this Act on a Special Court shall,
until a Special Court is constituted by the State Government under
sub-section (1) in the case of any offence punishable under this
Act, notwithstanding anything contained in the Code, be exercised
by the Court of Session of the division in which such offence has
E
been committed and it shall have all the powers and follow the
procedure provided under this Chapter.
(4) On and from the date when the Special Court is constituted by
the State Government the trial of any offence investigated by the
State Government under the provisions of this Act, which would
F
have been required to be held before the Special Court, shall stand
transferred to that Court on the date on which it is constituted.”
32. Section 11(1) of the NIA Act empowers the Central
government to constitute Special Courts “for the trial of scheduled
offences”. Under sub-Section (1) of Section 13, every scheduled offence
G which has been investigated by the NIA shall be tried only by the Special
Court within whose local jurisdiction the offence was committed. The
exclusive jurisdiction which is conferred on the Special Court to try a
scheduled offence investigated by the NIA is amplified by the non-
obstante provision which overrides the provisions contained in the CrPC.
H Section 22(1) empowers the State government to constitute Special
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 379
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Courts for the trial of offences under the enactments which have been A
specified in the Schedule to the NIA Act, and which have been
investigated by the State Investigative Agency.
D Continuation of investigation by the ATS Nanded
33. Having analysed the interplay of the provisions of the NIA
Act, we come to the first ground raised in the present appeals. The B
submission of the appellants is that once the Central government directed
the NIA Mumbai to take over the investigation under Section 6(4), the
consequence under Section 6(6) was that ATS Nanded could not continue
with the investigation (and file a charge-sheet) thereafter. The plain text
of Section 6 indicates that the above proposition is incorrect. Sub-Section C
(4) of Section 6 contemplates a direction by the Central government to
the NIA to investigate an offence, where it is of the opinion that the
offence is a scheduled offence and that it is fit to be investigated by the
NIA. Sub-Section (5) also confers a suo motu power on the Central
government to direct the NIA to investigate a scheduled offence. Under
sub-Section (6), upon the issuance of a direction under sub-Sections (4) D
or (5) of Section 6, the State government and the officer in-charge of
the police station investigating the offence “shall not proceed with the
investigation and shall forthwith transmit the relevant documents and
records to the [NIA]”. However, this stipulation has to be read in the
context of sub-Section (7), under which the investigation by the officer E
in-charge of the police station has to continue till the NIA takes up the
investigation of the case. Sub-Section (7) is a provision for the “removal
of doubts”. Such a provision clarifies the intent of the law-maker so as
to place it beyond the realm of ambiguity. Hence, on a conjoint reading
of sub-Sections (4), (5), (6) and (7) of Section 6, what emerges is that
the ATS Nanded had a duty to continue with the investigation till the F
NIA Mumbai actually took over the investigation from it. Therefore, we
must now determine when did the NIA Mumbai actually commence the
investigation in the present case.
34. In order to appreciate when the NIA Mumbai began its
investigation, we must first understand the meaning of the term. A three G
Judge Bench of this Court in H N Rishbud and Inder Singh v. State
of Delhi26 (“H N Rishbud”) outlined the various steps of an investigation
under the CrPC, while noting that investigation begins once the police
receives information that discloses the commission of a cognizable
26
(1955) 1 SCR 1150 H
380 SUPREME COURT REPORTS [2021] 10 S.C.R.
A offence. The Court held that investigation encompasses the steps taken
by the police to ascertain facts of the case and ends either with the filing
of a charge-sheet or a closure report based on such facts. Justice
Jagannadhadas held thus:
“5…Investigation usually starts on information relating to
B the commission of an offence given to an officer in charge
of a police station and recorded under Section 154 of the
Code. If from information so received or otherwise, the
officer in charge of the police station has reason to suspect
the commission of an offence, he or some other subordinate
officer deputed by him, has to proceed to the spot to
C investigate the facts and circumstances of the case and if
necessary to take measures for the discovery and arrest of
the offender. Thus investigation primarily consists in the
ascertainment of the facts and circumstances of the case.
By definition, it includes “all the proceedings under the Code for
D the collection of evidence conducted by a police officer”. For the
above purposes, the investigating officer is given the power to
require before himself the attendance of any person appearing to
be acquainted with the circumstances of the case. He has also
the authority to examine such person orally either by himself or
by a duly authorised deputy. The officer examining any person in
E the course of investigation may reduce his statement into writing
and such writing is available, in the trial that may follow, for use in
the manner provided in this behalf in Section 162. Under Section
155 the officer in charge of a police station has the power of
making a search in any place for the seizure of anything believed
F to be necessary for the purpose of the investigation. The search
has to be conducted by such officer in person. A subordinate officer
may be deputed by him for the purpose only for reasons to be
recorded in writing if he is unable to conduct the search in person
and there is no other competent officer available. The investigating
officer has also the power to arrest the person or persons suspected
G of the commission of the offence under Section 54 of the Code. A
police officer making an investigation is enjoined to enter his
proceedings in a diary from day-to-day. Where such investigation
cannot be completed within the period of 24 hours and the accused
is in custody he is enjoined also to send a copy of the entries in the
H diary to the Magistrate concerned. It is important to notice that
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 381
[DR. DHANANJAYA Y CHANDRACHUD, J.]
where the investigation is conducted not by the officer in charge A
of the police station but by a subordinate officer (by virtue of one
or other of the provisions enabling him to depute such subordinate
officer for any of the steps in the investigation) such subordinate
officer is to report the result of the investigation to the officer in
charge of the police station. If, upon the completion of the
B
investigation it appears to the officer in charge of the police station
that there is no sufficient evidence or reasonable ground, he may
decide to release the suspected accused, if in custody, on his
executing a bond. If, however, it appears to him that there is
sufficient evidence or reasonable ground, to place the accused on
trial, he is to take the necessary steps therefore under Section C
170 of the Code. In either case, on the completion of the
investigation he has to submit a report to the Magistrate under
Section 173 of the Code in the prescribed form furnishing various
details. Thus, under the Code investigation consists generally
of the following steps: (1) Proceeding to the spot, (2)
D
Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender, (4)
Collection of evidence relating to the commission of the
offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their
statements into writing, if the officer thinks fit, (b) the search E
of places or seizure of things considered necessary for the
investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material
collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for
F
the same by the filing of a charge-sheet under Section
173…”
(emphasis supplied)
35. In Ramsinh Bavaji Jadeja v. State of Gujarat27, a two Judge
Bench of this Court held that the question as to when an investigation G
commences has to be answered based upon the facts and circumstances
of each case, with one of the factors to be considered being whether the
actions of the police were guided by information which disclosed the
commission of a cognizable offence. Justice NP Singh held:
27
(1994) 2 SCC 685 H
382 SUPREME COURT REPORTS [2021] 10 S.C.R.
A “7. From time to time, controversy has been raised, as to at
what stage the investigation commences. That has to be
considered and examined on the facts of each case, especially,
when the information of a cognizable offence has been given on
telephone. If the telephonic message is cryptic in nature and the
officer in charge, proceeds to the place of occurrence on basis of
B
that information to find out the details of the nature of the offence
itself, then it cannot be said that the information, which had been
received by him on telephone, shall be deemed to be first information
report. The object and purpose of giving such telephonic message
is not to lodge the first information report, but to request the officer
C in charge of the police station to reach the place of occurrence.
On the other hand, if the information given on telephone is not
cryptic and on the basis of that information, the officer in charge,
is prima facie satisfied about the commission of a cognizable
offence and he proceeds from the police station after recording
such information, to investigate such offence then any statement
D
made by any person in respect of the said offence including details
about the participants, shall be deemed to be a statement made by
a person to the police officer “in the course of an investigation”,
covered by Section 162 of the Code. That statement cannot be
treated as first information report…”
E 36. In Union of India v. Prakash P. Hinduja28, another two
Judge Bench held that investigation includes all proceedings under the
CrPC for the collection of evidence by the police, which ends when
there is enough evidence to determine whether to place the accused
person before a Magistrate. Justice G P Mathur observed:
F “11…Section 2(h) CrPC defines “investigation” and it includes all
the proceedings under the Code for the collection of evidence
conducted by a police officer or by any person (other than a
Magistrate) who is authorised by a Magistrate in this behalf. It
ends with the formation of the opinion as to whether on the material
G collected, there is a case to place the accused before a Magistrate
for trial and if so, taking the necessary steps for the same by filing
of a charge-sheet under Section 173 [see State of U.P. v.
Bhagwant Kishore Joshi [AIR 1964 SC 221 : (1964) 1 Cri LJ
140], AIR (para 8) and H.N. Rishbud v. State of Delhi [AIR 1955
28
H (2003) 6 SCC 195
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 383
[DR. DHANANJAYA Y CHANDRACHUD, J.]
SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] , SCR at p. A
1157].”
37. From the above line of cases, what emerges is that an
investigation commences upon the receipt of information by the police
which discloses the commission of a cognizable offence. However, the
mere receipt and recording of such information (through an FIR) by B
itself does not mean that the investigation has also commenced. Rather,
the investigation commences when the police takes the first step (of
proceeding to the spot or collecting evidence or speaking to a witness or
arresting the accused person) on the basis of such information.
38. In the present case, the investigation was initiated by the ATS C
Nanded following the registration of the FIR on 14 July 2016, on receipt
of source information that Naser Bin Abu Bakr Yafai was in contact
over the internet with members of IS/ISIS/ISIL/Daesh. This led to the
arrest of four accused persons, including Naser Bin Abu Bakr Yafai and
Mohammad Shahed Khan. Thereafter, considering the gravity of the
offence involved, the Central government directed the NIA Mumbai to D
take up further investigation of the case on 8 September 2016, exercising
its powers under Section 6(4) of the NIA Act. The NIA Mumbai re-
numbered the case on 14 September 2016. However, the NIA Mumbai
intimated the ATS Nanded to transfer the case records to them on 23
November 2016, and it was only on 8 December 2016 that the records E
were handed over to the NIA Mumbai by the ATS Nanded. ATS Nanded
filed the charge-sheet before the CJM, Nanded on 7 October 2016 (which
was prior to even the letter of the NIA Mumbai dated 23 November
2016 for the handing over of the case records). Likewise, the CJM,
Nanded took cognizance of the offence and committed the case to trial
before the ASJ, Nanded on 18 October 2016. F
39. The contention of the ATS Nanded is that the investigation by
them until the NIA Mumbai took up the investigation of the case was in
terms of the mandate of sub-Section (7) of Section 6 since the provision
states that “till the [NIA] takes up the investigation of the case, it shall
be the duty of the officer in-charge of the Police Station to continue the G
investigation”. In the present case, the NIA Mumbai intimated the ATS
Nanded to transfer the case papers on 23 November 2016, following
which the ATS Nanded sent the papers on 8 December 2016.While the
NIA Mumbai may have re-numbered the case file on 14 September
2016, it could not have taken the initial step of its investigation into the H
384 SUPREME COURT REPORTS [2021] 10 S.C.R.
A case till it had access to the case papers, which it only received from the
ATS Nanded on 8 December 2016. Thus, the mere renumbering of the
case filed by the NIA Mumbai did not take away the power of the ATS
Nanded to continue the investigation. The said authority could do so till
the records of the case were received by the NIA Mumbai. Hence, the
investigation conducted by the ATS Nanded prior to this was within the
B
mandate of sub-Section (7) of Section 6 of the NIA Act. The said
provision is clarificatory in nature so as to remove any doubt about the
duty of the officer in-charge of the police station to continue the
investigation till the ‘Agency’, i.e., the NIA Mumbai in the instant case,
took up the investigation on receipt of the case papers. Therefore, the
C continuation of the investigation, and the filing of the charge-sheet upon
its conclusion, by the ATS Nanded was in terms of the statutory mandate
under Section 6(7) of the NIA Act.
E CJM, Nanded’s jurisdiction for remand and committal to
trial
D 40. The second ground which has been urged on behalf of the
appellants is that the submission of the charge-sheet before the CJM,
Nanded and the order of committal are a nullity since the jurisdiction to
investigate the offence was entrusted to the NIA Mumbai and the
jurisdiction was vested with the Special Court. The continuation of the
E investigation by the ATS Nanded has been analysed above and it has
been held to be in accordance with the mandate of Section 6(7) of the
NIA Act. Now, sub-Section (1) of Section 11 empowers the Central
government to constitute Special Courts “for the trial of scheduled
offence”. Sub-Section (1) of Section 13 provides that, notwithstanding
anything contained in the CrPC, every scheduled offence investigated
F by the NIA shall be tried only by the Special Court. Hence, the exclusive
jurisdiction of the Special Court to try a scheduled offence under sub-
Section (1) of Section 13 attaches where the scheduled offence has
been “investigated by the [NIA]”. Further, sub-Section (1) of Section 16
is an enabling provision which empowers a Special Court to take
G cognizance of any offence without the accused being committed to it for
trial upon receiving a complaint of facts which constitute such offence
or upon a police report of such offence. However, this clearly would not
affect either the antecedent investigation by the ATS Nanded prior to
the NIA Mumbai having taken up the investigation or the submission of
the charge-sheet as a logical consequence of the investigation which
H was conducted by the ATS Nanded. The enabling provisions of sub-
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 385
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Section (1) of Section 16 would not invalidate the submission of the A
charge-sheet to the CJM, Nanded or the order of committal made to the
ASJ, Nanded.
41. In this context, it would be worthwhile to revisit the fundamental
principle which was enunciated by the Bench of three learned Judges in
H N Rishbud (supra). It was held that the cognizance or trial based on B
it would not necessarily be nullified even in a case where the investigation
was found to be invalid. The Court, speaking through Justice
Jagannadhadas, held:
“9...Now, trial follows cognizance and cognizance is preceded by
investigation. This is undoubtedly the basic scheme of the Code in C
respect of cognizable cases. But it does not necessarily follow
that an invalid investigation nullifies the cognizance or trial based
thereon. Here we are not concerned with the effect of the breach
of a mandatory provision regulating the competence or procedure
of the Court as regards cognizance or trial…”
D
The Court held that if therefore cognizance is in fact taken, on a
police report vitiated by the breach of a mandatory provision relating to
an investigation, “there can be no doubt that the result of the trial which
follows cannot be set aside unless illegality in the investigation can be
shown to have brought about a miscarriage of justice”:
E
“9…If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a miscarriage
of justice. That an illegality committed in the course of investigation F
does not affect the competence and the jurisdiction of the Court
for trial is well settled as appears from the cases in Prabhu v.
Emperor [AIR 1944 Privy Council 73] and Lumbhardar Zutshi v.
King [AIR 1950 Privy Council 26] . These no doubt relate to the
illegality of arrest in the course of investigation while we are G
concerned in the present cases with the illegality with reference
to the machinery for the collection of the evidence. This distinction
may have a bearing on the question of prejudice or miscarriage of
justice, but both the cases clearly show that invalidity of the
investigation has no relation to the competence of the Court. We
are, therefore, clearly, also, of the opinion that where the H
386 SUPREME COURT REPORTS [2021] 10 S.C.R.
A cognizance of the case has in fact been taken and the case has
proceeded to termination, the invalidity of the precedent
investigation does not vitiate the result, unless miscarriage of justice
has been caused thereby.”
42. We must of course clarify that in the present case, the Court
B is dealing with a situation where the investigation by the ATS Nanded
was valid in terms of the provisions of Section 6(7) of the NIA Act.
43. However, a second argument which has been urged by the
appellants is that even if the ATS Nanded had the power to continue
with its investigation and file a charge-sheet, it could only be before a
C Special Court under the NIA Act since the appellants have been charged
under the UAPA, which is a scheduled offence under the NIA Act.
44. In support of this proposition, reliance has been placed upon a
judgment of a three Judge Bench of this Court in Bikramjit Singh v.
State of Punjab29 (“Bikramjit Singh”). In Bikramjit Singh (supra),
D an FIR was registered on 18 November 2018 implicating offences under
Sections 302, 307, 452, 427, 341 and 34 of the IPC together with Section
25 of the Arms Act 1959, Sections 3 to 6 of the ES Act and Section 13 of
the UAPA. The appellant was arrested on 22 November 2018. After
the 90 days period expired on 31 December 2019, the appellant submitted
an application for default bail to the Sub-Divisional Judicial Magistrate30,
E which was dismissed by an order dated 25 February 2019, on the ground
that by an order dated 13 February 2019, the SDJM had already extended
time from 90 to 180 days under Section 167 of the CrPC, as amended by
Section 43D(2) of the UAPA. The revision petition filed by the petitioner,
against the SDJM’s order dated 12 February 2019, before the ASJ, which
F was the Special Court designated under Section 22 of the NIA Act,
succeeded on 25 March 2019 with the finding that only the Special Court
was competent to pass an order on an application moved under Section
43D(2) of the UAPA. A day subsequent to it, on 26 March 2019, a
charge-sheet was filed before the Special Court. Thereafter, despite the
order dated 25 March 2019, a revision petition filed by the appellant
G against the order dated 25February 2019 was dismissed by the Special
Court on 11 April 2019, thereby refusing to grant default bail. The High
Court then observed that since the investigation was being carried out
by the State Police, the Magistrate had the power under Section 167(2)
29
(2020) 10 SCC 616
H 30
“SDJM”
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 387
[DR. DHANANJAYA Y CHANDRACHUD, J.]
of the CrPC read with Section 43A of the UAPA to extend the period of A
investigation up to 180 days and then commit the case to the Court of
Sessions. In this backdrop, Justice Rohinton F Nariman, speaking for
the three Judge Bench, held that a notification by the Government of
Punjab had been issued under Section 22 for setting up Special Courts
within the State of Punjab on 10 June 2014. After adverting to Sections
B
13(1) and Section 22(2) of the NIA Act, the Court observed:
“25. When these provisions are read along with Section 2(1)(d)
and the provisos in Section 43-D(2) of the UAPA, the scheme of
the two Acts, which are to be read together, becomes crystal
clear. Under the first proviso in Section 43-D(2)(b), the 90-day
period indicated by the first proviso to Section 167(2) of the Code C
can be extended up to a maximum period of 180 days if “the
Court” is satisfied with the report of the Public Prosecutor
indicating progress of investigation and specific reasons for
detention of the accused beyond the period of 90 days. “The
Court”, when read with the extended definition contained D
in Section 2(1)(d) of the UAPA, now speaks of the Special
Court constituted under Section 22 of the NIA Act. What
becomes clear, therefore, from a reading of these provisions
is that for all offences under the UAPA, the Special Court
alone has exclusive jurisdiction to try such offences. This
becomes even clearer on a reading of Section 16 of the E
NIA Act which makes it clear that the Special Court may
take cognizance of an offence without the accused being
committed to it for trial upon receipt of a complaint of facts
or upon a police report of such facts. What is equally clear
from a reading of Section 16(2) of the NIA Act is that even though F
offences may be punishable with imprisonment for a term not
exceeding 3 years, the Special Court alone is to try such offence
— albeit in a summary way if it thinks it fit to do so. On a conspectus
of the abovementioned provisions, Section 13 read with Section
22(2)(ii) of the NIA Act, in particular, the argument of the learned
counsel appearing on behalf of the State of Punjab based on G
Section 10 of the said Act has no legs to stand on since the Special
Court has exclusive jurisdiction over every Scheduled Offence
investigated by the investigating agency of the State.
26. Before the NIA Act was enacted, offences under the UAPA
were of two kinds — those with a maximum imprisonment of H
388 SUPREME COURT REPORTS [2021] 10 S.C.R.
A over 7 years, and those with a maximum imprisonment of 7 years
and under. Under the Code as applicable to offences against other
laws, offences having a maximum sentence of 7 years and under
are triable by the Magistrate’s courts, whereas offences having a
maximum sentence of above 7 years are triable by Courts of
Session. This scheme has been completely done away with
B
by the NIA Act, 2008 as all Scheduled Offences i.e. all
offences under the UAPA, whether investigated by the
National Investigation Agency or by the investigating
agencies of the State Government, are to be tried
exclusively by Special Courts set up under that Act. In the
C absence of any designated court by notification issued by
either the Central Government or the State Government,
the fallback is upon the Court of Session alone. Thus, under
the aforesaid scheme what becomes clear is that so far as
all offences under the UAPA are concerned, the
Magistrate’s jurisdiction to extend time under the first
D
proviso in Section 43-D(2)(b) is non-existent, “the Court”
being either a Sessions Court, in the absence of a notification
specifying a Special Court, or the Special Court itself. The
impugned judgment in arriving at the contrary conclusion is
incorrect as it has missed Section 22(2) read with Section 13 of
E the NIA Act. Also, the impugned judgment has missed Section
16(1) of the NIA Act which states that a Special Court may take
cognizance of any offence without the accused being committed
to it for trial, inter alia, upon a police report of such facts.”
(emphasis supplied)
F The above narration would indicate that the power to extend the
90 days period, indicated by the first proviso to Section 167(2) of the
CrPC, up to a maximum of 180 days was vested with “the Court”. “The
Court”, read with the definition contained in Section 2(1)(d) of the UAPA,
was held to refer to the Special Court constituted under Section 22 of
G the NIA Act. Hence, this Court held that the Special Court constituted
under Section 22 of the NIA Act had exclusive jurisdiction over every
scheduled offence under the NIA Act investigated by the investigating
agency of the State.
45. The judgment in Bikramjit Singh (supra) has been cited in
H another three Judge Bench in M Ravindran v. Intelligence Officer,
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 389
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Directorate of Revenue Intelligence31. In that case, the appellant A
was arrested and remanded to judicial custody on 4 August 2018, for
alleged offences punishable under the Narcotic Drugs and Psychotropic
Substances Act 198532. After the completion of 180 days from the remand
day (31 January 2019), an application for bail was filed on 1 February
2019 under Section 167(2) of the CrPC before the Special Court for
B
exclusive trial of cases under the NDPS Act. After the completion of
the arguments of the appellant on the application for bail, the respondent-
complainant filed an additional complaint on 1 February 2019, and sought
the dismissal of the bail petition on the basis that the investigation was
not complete and the charge-sheet had not been filed. The trial Court
allowed the application for bail but this was set aside by the High Court, C
since the additional complaint was filed on 1 February 2019 and the
application for bail under Section 167(2) was not disposed of by the time
the additional complaint was filed. Justice MM Shantanagoudar, speaking
for the three Judge Bench, referred to the judgment in Bikramjit Singh
(supra) and observed that so long as the application for the grant of
default bail was made on the expiry of the period of 90 days before a D
charge-sheet has filed, the right to default bail becomes complete. Hence,
the Court held that so long as an application has been made for default
bail on the expiry of the stated period (before time is further extended to
a maximum of 180 days) default bail being an indefeasible right of the
accused under the first proviso to Section 167(2) of the CrPC kicks in E
and must be granted. Applying the law to the facts, the Court held:
“25. Therefore, in conclusion:
25.1. Once the accused files an application for bail under the
proviso to Section 167(2) he is deemed to have “availed of” or
enforced his right to be released on default bail, accruing after F
expiry of the stipulated time-limit for investigation. Thus, if the
accused applies for bail under Section 167(2) CrPC read with
Section 36-A(4), NDPS Act upon expiry of 180 days or the
extended period, as the case may be, the court must release him
on bail forthwith without any unnecessary delay after getting
necessary information from the Public Prosecutor, as mentioned G
supra. Such prompt action will restrict the prosecution from
frustrating the legislative mandate to release the accused on bail
in case of default by the investigating agency.
31
(2021) 2 SCC 485
32
“NDPS Act” H
390 SUPREME COURT REPORTS [2021] 10 S.C.R.
A 25.2. The right to be released on default bail continues to remain
enforceable if the accused has applied for such bail, notwithstanding
pendency of the bail application; or subsequent filing of the charge-
sheet or a report seeking extension of time by the prosecution
before the court; or filing of the charge-sheet during the
interregnum when challenge to the rejection of the bail application
B
is pending before a higher court.
25.3. However, where the accused fails to apply for default bail
when the right accrues to him, and subsequently a charge-sheet,
additional complaint or a report seeking extension of time is
preferred before the Magistrate, the right to default bail would be
C extinguished. The Magistrate would be at liberty to take cognizance
of the case or grant further time for completion of the investigation,
as the case may be, though the accused may still be released on
bail under other provisions of the CrPC.
25.4. Notwithstanding the order of default bail passed by the court,
D by virtue of Explanation I to Section 167(2), the actual release of
the accused from custody is contingent on the directions passed
by the competent court granting bail. If the accused fails to furnish
bail and/or comply with the terms and conditions of the bail order
within the time stipulated by the court, his continued detention in
E custody is valid.”
46. The judgment in Bikramjit Singh (supra) has been followed
in another recent decision by a three Judge Bench in Sadique v. State
of Madhya Pradesh33, where it was held that the appellants were entitled
to default bail since the CJM, Bhopal had no jurisdiction to extend time
F for investigation under Section 43D(2)(b) of the UAPA, as such
jurisdiction vested only with Special Courts. In Fakhrey Alam v. State
of Uttar Pradesh34, a two Judge Bench of this Court distinguished
Bikramjit Singh (supra) in a case where the CJM had granted 180
days for the filing of charge-sheet by accepting the submission that “in
State of Uttar Pradesh the competent Court was of the special Chief
G Judicial Magistrate and it is only recently now about a month back that
special Courts had been notified” and by holding that “the situation in the
State of Uttar Pradesh is different and it is not as if there were any
notified special courts in existence”.
33
Criminal Appeal No 963 of 2021, order dated 7 September 2021
H 34
2021 SCC OnLine SC 532
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA 391
[DR. DHANANJAYA Y CHANDRACHUD, J.]
47. In the present case, the appellants were arrested on 14 July A
2016. The charge-sheet was submitted on 7 October 2016. The 90 days
period of remand would have been completed on 14 October 2016.
Applying the principles enunciated in Bikramjit Singh (supra) (in relation
to the power of the CJM to extend investigation upto 180 days) to the
present case (in relation to the jurisdiction of the CJM in relation to
B
remand and committal of case to trial), the first consideration would be
whether there existed a Special Court under Section 22 of the NIA Act
to divest the CJM, Nanded of its jurisdiction. The appellants have produced
before us various notifications issued by the Government of Maharashtra
designating Special Courts under Section 22 for trial of schedules offences
under the NIA Act. The earliest of those notifications is dated 13 April C
2017. In its counter-affidavit before this Court, the State of Maharashtra
has stated that:
“8…the present Crime No. i.e. 08/2016 has been registered against
accused/Petitioner on 14/07/2016. As per record of the office of
deponent it appears that till the date of registration of Crime No. D
08/2016, the State Government has not established Special Court
under Section 22 National Investigation Act, 2008 at Nanded.”
Hence, the principle enunciated by this Court in Bikramjit Singh
(supra) would not apply to the present case since there existed no Special
Courts in the State of Maharashtra designated under Section 22 of the E
NIA Act (since the investigation was being conducted by the ATS
Nanded, which had the jurisdiction over the case).
48. We have already held that the continuance of the investigation
by the ATS Nanded in terms of Section 6(7) of the NIA Act, till the
investigation had been taken up by the NIA Mumbai, was legitimate. A F
reading of Section 10 of the NIA Act indicates that there is no embargo
on the State Investigating Agency to investigate a scheduled offence,
which would include offences under the UAPA. Consequently, till the
investigation was taken up by the NIA Mumbai, the ATS Nanded was
acting within jurisdiction in investigating the offence and filing the charge-
sheet in the present case. Both of these took place prior to 8 December G
2016, which is when the investigation was handed over to the NIA
Mumbai. Admittedly, once the NIA Mumbai took up the investigation,
the Special Court designated under Section 11 of the NIA Act would
have sole jurisdiction to try the case. In the present case, the NIA Mumbai
took up the investigation only on 8 December 2016 after receiving the H
392 SUPREME COURT REPORTS [2021] 10 S.C.R.
A records from the ATS Nanded, and thereupon it filed an application for
transfer of the case from the ASJ, Nanded to the NIA Special Court,
Mumbai constituted under Section 11 of the NIA Act.
49. However, till the NIA Mumbai took over the investigation,
jurisdiction would reside with a Court which ordinarily had it. The
B Government of Maharashtra in exercise of powers conferred by Section
11 read with Section 185 of the CrPC issued a notification dated 26
August 2016 designating the CJM, Nanded as the remand court and the
ASJ, Nanded as a Special Court for the trial of cases filed by the ATS
Nanded. There is no challenge to the notification dated 26 August 2016.
Inthis backdrop, the CJM, Nanded has been designated as a Court of
C remand and the ASJ, Nanded as a Special Court under the CrPC for the
trial of cases filed by the ATS Nanded. Hence, they both had the
jurisdiction to entertain the present case under the UAPA till the NIA
Mumbai took over the investigation on 8 December 2016, and sought a
transfer of the case to the NIA Special Court at Mumbai constituted
D under Section 11 of the NIA Act.
F Conclusion
50. For the above reasons, we affirm the judgment and order of
the High Court dated 5 July 2018. We hold that, in accordance with
Section 6(7), the ATS Nanded was not barred from continuing with its
E investigation till the NIA Mumbai actually took up the investigation.
Further, we hold that the CJM, Nanded could have committed the case
to trial before the ASJ, Nanded upon the filing of charge-sheet by the
ATS Nanded since they were the designated Courts for the ATS Nanded
and no Special Court had been designated by the Government of
F Maharashtra under Section 22 of the NIA Act.
51. The appeals shall, accordingly, stand dismissed.
52. Pending application(s), if any, stand disposed of.
G Devika Gujral Appeals dismissed.
H
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