Naser Bin Abu Bakr Yafai vs The State Of Maharashtra on 20 October, 2021


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Supreme Court of India

Naser Bin Abu Bakr Yafai vs The State Of Maharashtra on 20 October, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, B.V. Nagarathna

                                                                                             Reportable

                                        IN THE SUPREME COURT OF INDIA
                                       CRIMINAL APPELLATE JURISDICTION

                                          Criminal Appeal No 1165 of 2021


          Naser Bin Abu Bakr Yafai                                                   … Appellant



                                                        Versus

          The State of Maharashtra & Anr.                                            … Respondents



                                                          With

                                          Criminal Appeal No 1166 of 2021




                                                   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

Signature Not VerifiedCJM, Nanded’s jurisdiction for remand and committal to trial
Digitally signed by
Sanjay Kumar

F Conclusion
Date: 2021.10.20
14:30:21 IST
Reason:




                                                           1
                                                                                           PART A



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 1 was registered under Sections 120-B and 471 of

the Indian Penal Code 1860 2 read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of

the Unlawful Activities (Prevention) Act 1967 3 and Sections 4, 5 and 6 of the

Explosive Substances Act 1908 4. It was registered with the Anti-Terrorism Squad 5 at

the Kala Chowki Police Station Mumbai on the basis of written information provided

by Manik Vitthal Rao Bedre 6, against two persons: (i) Naser Bin Abu Bakr Yafai (the

appellant in the first of the two appeals 7); and (ii) Farooq (who was residing in Syria).

The complaint alleged that the ATS had received source information that Naser Bin

Abu Bakr Yafai was in contact through the internet with members of the Islamic

State 8/Islamic State of Iraq and Syria 9/Islamic State of Iraq and Levant 10/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) 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

1
CR No 8 of 2016
2
“IPC”
3
“UAPA”
4
“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”

2
PART A

arrested four persons from Parbhani, namely: (i) Naser Bin Abu Bakr Yafai; (ii)

Mohammad Shahed Khan (the appellant in the companion appeal 11); (iii) Iqbal

Ahmed; and (iv) Mohammad Raisuddin.

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 Criminal Procedure

1973 12 issued a notification designating the Chief Judicial Magistrate 13, Nanded, as

a Court of remand and the Court of Additional Sessions Judge 14, 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

government 15 directed the National Investigation Agency 16 to take over further

investigation in the present case by exercising powers under Section 6(4) of the

National Investigation Agency Act 2008 17. On 14 September 2016, the NIA Mumbai

renumbered the case 18 for taking up further investigation.

5 The ATS continued with the investigation and filed a charge-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

11
Criminal Appeal No 1166 of 2021
12
“CrPC”
13
“CJM”
14
“ASJ”
15
F.No. 11011/24/2016-IS.IV
16
“NIA”
17
“NIA Act”
18
RC-03/2016/NIA/MUM

3
PART A

cognizance of the offence and on 18 October 2016 committed the case 19 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,

Nanded rejected Naser Bin Abu Bakr Yafai’s application since, at 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.

19

Sessions Case No 106 of 2016

4
PART A

8 The appellant filed a criminal writ petition 20 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 application 21 under Section 407(2)

of the CrPC before the High Court seeking transfer of the records and proceedings

in the trial from the 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 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 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 exclusively try

such scheduled offences. Naser Bin Abu Bakr Yafai then filed a special leave

petition 22 before this Court challenging the order of the Bombay High Court.

20
Criminal Writ Petition No 5022 of 2017
21
Criminal Application No 27 of 2017
22
“SLP”

5
PART A

10 On the other hand, on 4 September 2017, Mohammad Shahed Khan (the

appellant in the companion appeal) had written a letter to the 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. 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.

6

PART B

B Submissions

13 The SLPs which invoke the jurisdiction of this Court under Article 136 have

been instituted essentially on two grounds. The first 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 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 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;

(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 sub-Section (5) of

Section 6, neither the State government nor a police officer of the State

7
PART B

Agency investigating the offence can proceed with the investigation and must

forthwith transmit the relevant documents and records to the NIA;

(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;

(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 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 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:

8
PART B

(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 before the CJM, Nanded is a nullity

because it could have been filed only in the Special Court constituted under

Section 22 of 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 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

9
PART B

jurisdiction, the accused have an indefeasible 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 General 23 appearing on behalf of the NIA. The ASG urged that:

(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;

(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 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 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;

(vi) Section 13 prescribes that every scheduled offence investigated by the

“Agency” shall be tried only by the Special Court within whose local

23
“ASG”

10
PART B

jurisdiction it was committed. The expression “Agency” is defined in Section

2(a) as the “National Investigation Agency” and as a 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;

(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

11
PART C

(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 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


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, 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 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) defines the expression “Special Court” to

mean a Special Court constituted under Section 11, or as the case may be, under

12
PART C

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. 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);

3. The Anti-Hijacking Act, 1982 (65 of 1982);

4. The Suppression of Unlawful Acts against Safety of Civil
Aviation Act, 1982 (66 of 1982);

5. The SAARC Convention (Suppression of Terrorism) Act,
1993 (36 of 1993);

6. The Suppression of Unlawful Acts Against Safety of
Maritime Navigation and Fixed Platforms on Continental Shelf
Act, 2002 (69 of 2002);

7. The Weapons of Mass Destruction and their Delivery
Systems (Prohibition of 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)];

(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 from 2 August 2019:

13

PART C

“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 the Agency, it shall direct the Agency to
investigate the said offence.

(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 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 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:

14
PART C

(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-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);

(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 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 (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

15
PART C

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 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);

(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 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; and
16
PART C

(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 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.

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 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.

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 7 24 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:

24

“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.”

17
PART C

(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.

25 Section 9 25 mandates that the State government shall extend all assistance

and cooperation to the NIA for 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 sub-

Sections (4) and (5) of Section 6, the State government and a police officer 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 investigation of the Scheduled Offences.”

18
PART C

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 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 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.

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 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.”

29 Section 13 provides for the jurisdiction of the Special Courts. Sub-Section (1)

of Section 13 is in the following terms:

“13. Jurisdiction of Special Courts.—

19
PART C

(1) Notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be tried
only by the Special Court within whose local jurisdiction it was
committed.”

30 Section 16 provides for the procedure and powers of the Special Courts. Sub-

Section (1) of Section 16 is in the following terms:

“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.”

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:

“22. Power of State Government to constitute Special
Courts.—

(1) The State Government may constitute one or more
Special Courts for the trial of offences under any or all the
enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special
Courts constituted by the State Government under sub-
section (1) and shall have effect subject to the following
modifications, namely—

(i) references to “Central Government” in Sections 11 and 15
shall be construed as references to State Government;

(ii) reference to “Agency” in sub-section (1) of Section 13 shall
be construed as a reference to the “investigation agency of
the State Government”;

20

PART C

(iii) reference to “Attorney-General for India” in sub-section (3)
of Section 13 shall be construed as reference to “Advocate-
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 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 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 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.

21
PART D

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 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

22
PART D

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 26 (“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 Jagannadhadas held thus:

“5…Investigation usually starts on information relating to
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 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 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 the
course of investigation may reduce his statement into writing
and such writing is available, in the trial that may follow, for

26
(1955) 1 SCR 1150

23
PART D

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 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 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 diary to the Magistrate
concerned. It is important to notice that where the
investigation is conducted not by the officer in charge 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 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 accused) and the
reduction of their statements into writing, if the officer
thinks fit, (b) the search 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

24
PART D

taking the necessary steps for the same by the filing of a
charge-sheet under Section 173…”

(emphasis supplied)

35 In Ramsinh Bavaji Jadeja v. State of Gujarat 27, a two Judge Bench of this

Court held that the question as to when an investigation 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 N P

Singh held:

“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 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
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 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…”

27
(1994) 2 SCC 685

25
PART D

36 In Union of India v. Prakash P. Hinduja 28, 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:

“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 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 Nanded

following the registration of the FIR on 14 July 2016, on receipt of source information

28
(2003) 6 SCC 195

26
PART D

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

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.

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 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

27
PART E

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.

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 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

28
PART E

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.

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 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 respect of cognizable cases. But it does not

29
PART E

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…”

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”:

“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
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 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.

30

PART E

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 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 Punjab 29 (“Bikramjit

Singh”). In Bikramjit Singh (supra), 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 Magistrate 30, 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 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

29
(2020) 10 SCC 616
30
“SDJM”

31
PART E

filed before the Special Court. Thereafter, despite the order dated 25 March 2019, a

revision petition filed by the appellant against the order dated 25 February 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) 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 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 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 offences may be punishable with

32
PART E

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 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 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 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 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
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 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)

33
PART E

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

Intelligence31. In that case, the appellant was arrested and remanded to judicial

custody on 4 August 2018, for alleged offences punishable under the Narcotic Drugs

and Psychotropic Substances Act 1985 32. 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 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, 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

31
(2021) 2 SCC 485
32
“NDPS Act”

34
PART E

filed. Justice M M 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 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 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
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 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.

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

35
PART E

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 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 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 Pradesh 33, where

it was held that the appellants were entitled to default bail since the CJM, Bhopal

had no jurisdiction to extend time 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 Pradesh 34, 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 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
34
2021 SCC OnLine SC 532

36
PART E

47 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 (supra) (in relation to the power of the CJM to extend

investigation up to 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 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 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. 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).

37

PART E

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 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.

49 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

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PART F

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.

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 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 Maharashtra under Section 22 of

the NIA Act.

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PART F

51 The appeals shall, accordingly, stand dismissed.

52 Pending application(s), if any, stand disposed of.

…..…….………….…………………………………………J.
[Dr Dhananjaya Y Chandrachud]

…..…….………….…………………………………………J.
[Vikram Nath]

…..…….………….…………………………………………J.
[BV Nagarathna]

New Delhi;

October 20, 2021.

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