Naser Bin Abu Bakr Yafai vs The State of Maharashtra & Anr.

National Investigation Agency Act, 2008: s.6(7) – 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 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 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 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 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 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 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 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 the charge-sheet in the instant case – 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 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 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 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 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” 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 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]

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-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 subSections (1) and (2) of Section 6 is to enable the Central government to make a decision in terms of sub-Section (3); 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 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 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 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

(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 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 the course of the investigation. Hence, while sub-Section (6) 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 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 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]

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 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 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. 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 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 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 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]

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 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. [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 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) 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) 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 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 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 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 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 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. 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, 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 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 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 investigation of the case was in terms of the mandate of subSection (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 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

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 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. [Para 39][383-F-H; 384-A-C]

8. CJM, Nanded’s jurisdiction for remand and committal to trial

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 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 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 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 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 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 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 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 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 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 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 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 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 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 Section 11 of the NIA Act. [Paras 48, 49][391-F-H; 392-A-D]