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TMI Blog2021 (10) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation 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. 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. 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. Section 22(1) empowers the State government to constitute Special Courts for the trial of offences under the enactments which have been specified in the Schedule to the NIA Act, and which have been investigated by the State Investigative Agency. 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 Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NIA Special Court at Mumbai constituted under Section 11 of the NIA Act. In accordance with Section 6(7), the ATS Nanded was not barred from continuing with its investigation till the NIA Mumbai actually took up the investigation - Appeal dismissed. - Dr Dhananjaya Y Chandrachud, Vikram Nath And BV Nagarathna, JJ. For the Petitioner : Mr. Farrukh Rasheed, AOR, Mr. Abu Bakr Sabbaq, Adv., Mr. Zahid Hussain, Adv., Mr. Satya Mitra, AOR. For the Respondent : Mr. K.M. Nataraj, ASG, Mr. S.V. Raju, ASG, Mr. Kanu Agrawal, Adv., Ms. Sairica Raju, Adv., Ms. Swati Ghildiyal, Adv., Mr. Zoheb Hussain, Adv., Mr. B. V. Balaram Das, AOR, Mr. Rahul Chitnis, Adv., Mr. Sachin Patil, AOR, Mr. Aaditya A. Pande, Adv., Mr. Geo Joseph, Adv. JUDGMENT DR DHANANJAYA Y CHANDRACHUD, J This judgment has been divided into sections to facilitate analysis. They are: A Facts B Submissions C Provisions of the NIA Act D Continuation of investigation by the ATS Nanded E CJM, Nanded s jurisdiction for remand and committal to trial F Conclusion A Facts 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 FIR [CR No 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 case [Sessions Case No 106 of 2016] to the Court of ASJ, Nanded. 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. 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 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, Nand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nanded could not have filed the charge-sheet once the NIA Mumbai had taken over the investigation. The letter was converted into a writ petition, and is pending before the 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 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, 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 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 institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on behalf of Mohammad Shahed 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 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 that the offence is a scheduled offence and is fit to be investigated by the NIA, shall direct the NIA to 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 (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses; (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 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: (i) The mandate of Section 6 is that unless relevant documents 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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); (vii) Upon the issuance of a direction by the Central government under subSections (4) or (5) of Section 6, two consequences emanate under subSection (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) 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 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 ensure that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the investigation of scheduled 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 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 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. 27 Therefore, what emerges is that upon the issuance of a direction under subSections (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 docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der any or all the enactments specified in the Schedule. (2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under subsection (1) and shall have effect subject to the following modifications, namely (i) references to Central Government in Sections 11 and 15 shall be construed as references to State Government; (ii) reference to Agency in sub-section (1) of Section 13 shall be construed as a reference to the investigation agency of the State Government ; (iii) reference to Attorney-General for India in sub-section (3) of Section 13 shall be construed as reference to AdvocateGeneral 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 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 offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lawmaker 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 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 Judge Bench of this Court in H N Rishbud and Inder Singh v. State of Delhi [(1955) 1 SCR 1150] ( 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 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 Jagannadhad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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) 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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: 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 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 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] , SCR at p. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 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 investigation by the ATS Nanded has been analysed above and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality in the investigation can be shown to have brought about a miscarriage of justice : 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 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 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 cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Police, the Magistrate had the power under Section 167(2) of the CrPC read with Section 43A of the UAPA to extend the period of 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 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 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 in Section 2(1)(d) of the UAPA, now spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 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 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) 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 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 another three Judge Bench in M Ravindran v. Intelligence Officer, Directorate of Revenue I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandate to release the accused on bail in case of default by the investigating agency. 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 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 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, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime No. 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 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 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 2016, which is when the investigation was handed over to the NIA Mumbai. Admittedly, once the NIA Mumbai took up t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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