R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 97 OF 2018 BETWEEN:
SRI. SYED ISMAIL AFAQ SON OF SYED ALEEM LANKA AGED ABOUT 38 YEARS RESIDING AT NO.B-413 WAYANAD RESIDENCY HIRA CHAND ROAD COX TOWN BENGALURU.
NATIVE OF FATHIMA COLLEGE AZAD NAGAR, 4TH CROSS JOLY ROAD, BHATKALA DAKSHINA KANNADA DISTRICT.
PRESENTLY LODGED IN PARAPPANA AGRAHARA CENTRAL PRISON BENGALURU-560 100. ... APPELLANT (BY SRI. S. BALAKRISHNAN, ADVOCATE) AND:
THE STATE OF KARNATAKA BY PULIKESHINAGAR POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001. ... RESPONDENT (BY SRI. SANDESH J. CHOUTA, ADDITIONAL ADVOCATE GENERAL ALONG WITH SRI. S.V. GIRIKUMAR, ADDITIONAL GOVERNMENT ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21 OF NATIONAL INVESTIGATION ACT, 2008 PRAYING TO SET ASDIE THE ORDER DATED 08.01.2018 IN SPECIAL.C.C.NO.330/2015 REJECTING THE APPLICATION FILED UNDER SECTION 20 OF NATIONAL INVESTIGATION ACT AND FURTHER PLEASED TO TRANSFER THE CASE TO SESSIONS COURT WHICH HAS JURISDICTION TO TRY THE OFFENCE NOT INVESTIGATED BY NATIONAL INVESTIGATION AGENCY.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that a case in Crime No.11 of 2015 for the offences punishable under Sections 3, 10, 13, 18 of the Unlawful Activities (Prevention) Act, 1967 (‘UA(P)’ Act for short) and Section 120B and 121A of Indian Penal Code and Sections 4, 5 and 6 of Explosive Substances Act, 1908 was registered by Pulakeshinagar Police Station, Bengaluru against three accused persons.
The case was subsequently transferred to the Central Crime Branch, who investigated the same and filed the charge sheet. The Special Court took cognizance of the offences, framed charges and commenced the trial. At the stage when P.Ws.1 and 2 had been examined, the appellant-accused No.1 filed an application under Section 20 of the National Investigation Agency Act, 2008 (hereinafter referred to as the ‘NIA Act’ for short) on the ground that since the investigation has not been conducted by the NIA, the Special Court has no jurisdiction to conduct the trial.
2. On hearing learned counsel for the appellant as well as State Public Prosecutor, the Special Court passed an order dated 08.01.2018 rejecting the application filed by appellant-accused No.1 under Section 20 of NIA Act. Being aggrieved by the said order, the instant appeal is filed.
3. Sri S. Balakrishnan, learned counsel appearing for the appellant contends that the impugned order passed by the Court below is erroneous and liable to be interfered with. That the Special Court had no jurisdiction to try the offences. He contends that since the investigation has not been conducted by the NIA, the Special Court has no jurisdiction to conduct the trial. In pursuance whereof, he relies on Section 13 of the NIA Act which indicates the jurisdiction of the Special Courts. In terms whereof, every scheduled offence investigated by the agency shall be tried only by the Special Court within whose jurisdiction it was committed. Therefore, since admittedly, investigation was not done by the NIA, the Special Court would not have jurisdiction to try the case. Reliance is also placed on sub- section (3) of Section 16 of NIA Act to indicate that a Special Court, for the purpose of trial of any offence shall have all the powers of a Court of Session and shall try such offence, as if it were a Court of Session. Therefore, reliance is also placed on the definition of ‘Special Court’ as defined under Section 2(h) of NIA Act which means a Special Court constituted under Section 11 or, as the case may be, under Section 22 of the aforesaid Act. Reliance is also placed on Section 2(d) of the Unlawful Activities (Prevention) Act, 1967 wherein the word ‘Court’ has been defined to mean a criminal Court having jurisdiction under the Code to try offences under the said Act. Therefore, it is pleaded that the ‘Court’ as defined under UA(P) Act is the Court that has jurisdiction to try the offences under the UA(P) Act and not the Special Court constituted under Sections 11 and 22 of the NIA Act. Therefore, the Court as defined under the UA(P) Act is quite different from the Special Court as defined under the NIA Act. Therefore, he pleads that the Special Court has no jurisdiction to try these offences.
4. In support of his case, he relies on the judgment of the Division Bench of High Court of Patna in the case of AKILESH KUMAR SINGH VS. UNION OF INDIA reported in 2017 CRI.L.J. 366 with reference to Paragraph No.133 which reads as follows:
“133. From the reading of the Section 21 of the NIA Act, it can be seen that when a scheduled offence, under the NIA Act, is being investigated by National Investigating Agency, which we have referred to as NIA, a person, arrested by the NIA, would, automatically, lose his right to approach High Court or Court of Session under Section 439 of the Code for his release on bail. On the other hand, when a person is arrested by police personnel, other than the personnel of the NIA, for the commission of the same scheduled offence and same is investigated by an investigating authority other than the National Investigating Agency, then, such a person can approach the High Court under Section 439 of the Code for his release on bail; but, while considering a bail application, even the High Court would not be able to ignore the limitations imposed on the power to grant bail by the proviso to Section 43D(5) of the UA(P)Act.”
5. Further, reliance is also placed on the Full Bench Judgment of the Patna High Court in the case of BAHADUR KORA VS. STATE OF BIHAR reported in 2015 CRL.L.J. 2134 with reference to paragraph Nos.21 and 22 which read as hereunder:
“21. Coming to the establishment of Courts, it is evident that S.11 of the Act empowers the Central Government, to do that, whereas S.22 enables the State Government, to constitute such Courts. Section-13 which defines jurisdiction of the special Courts becomes relevant in this behalf. It reads:
"13.(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." (sub- sections (2) and (3) omitted since not necessary for this case).
22. From this, it becomes clear that the Act excludes the jurisdiction of other Courts to try every or any scheduled offence, "investigated by the Agency" (N.I.A.). The expression "every scheduled offence investigated by agency" has two components. The first is about the identification of the offence; i.e. it being a scheduled offence, and the second is the agency that investigates it, namely, the N.I.A. It is only when these two factors exist, that the special Courts gets jurisdiction. In other words, the special Court cannot deal with the offences (a) unless they are "scheduled offences" and (b) even if a case involves "scheduled offences", it cannot deal with the same, unless it is investigated by the N.I.A. Whether one calls it as a literal or grammatical interpretation, this is the only possible way to understand the provision. Added to that, it is a well established principle that the provisions of a penal enactment must be construed strictly and there does not exist any occasion to expand the scope thereof, conferring jurisdiction or a Court, by way of reasoning or inference.”
6. Reliance is placed on the judgment of Division Bench of Bombay High Court in the case of NASER BIN ABU BAKR YAFAI VS. STATE OF MAHARASHTRA reported in 2018 (3) ABR (CRI) 758 wherein para 26 reads as follows:
“26. Furthermore, the provisions of both the enactments, particularly Section 2(d) of the ULP Act, which defines “Court”, makes it clear that the offences under UAP Act which are investigated by the State Investigation Agency are triable by the criminal courts having jurisdiction under the Code, in accordance with the procedure provided under the Code. It is only when the Central Government takes a decision and entrusts the investigation to the NIA, that the jurisdiction of the criminal court shall stand excluded and the Special Court constituted under the NIA Act will get jurisdiction to try such scheduled offences.”
7. Reliance is placed on the decision in the case of A BEEMA DOWLATH AND ORS VS. THE STATE OF TAMILNADU AND ORS 2015 Writ LR 449 with reference to para 35 which reads as follows:
“35. If we keep in mind the Scheme of the Act with regard to the investigation and with regard to the trial, it would be clear that the power vested in the Special Court is not merely to try the offences, but also to determine its own jurisdiction. Despite the fact that the Special Court is a creature of the statute, the Court is empowered under Section 20 to hold that the offence is not triable by it. This power under Section 20 is indicative of the fact that the Special Courts constituted either under Section 11 or under Section 22 can proceed only if the offence is triable by it and not otherwise.”
8. To sum up, it is contended that the jurisdiction of the Special Court is ousted in view of the fact that investigation is not conducted by the NIA. In all cases, where investigation is conducted by any other agency other than NIA, then the Special Court cannot try the offences. The same would have to be tried by a Criminal Court as defined under the Code of Criminal Procedure.
9. The same is disputed by Sri Sandesh Chouta, learned Additional Advocate General. He contends that the jurisdiction of the Special Court is to be determined on the basis of the offence committed. A Special Court is entitled to try all such offences as narrated in the schedule to the NIA Act. The jurisdiction of the Special Court is based on the schedule to the NIA Act and not dependent on the Investigating Agency. In support of his contention he relies on the judgment of this Court in Crl. P.No.9925/2017 dated 23.04.2018 in the case of A.E.MANAF AND OTHERS –VS- STATE BY CCB POLICE. He placed reliance on para 8 which reads as follows:
“8. Section 11 of the NIA Act deals with constitution of Special Courts by the Central Government and Section 22 confers power on the State Government to constitute Special Court. If both these Sections are read, they make it very clear that the trial of the scheduled offences should be held only in the Special Courts. Even if investigation is not held by the Agency under the NIA Act, the trial of the offences must be held in the Special Court only. xxxx.”
10. Reliance is also placed on the judgment dated 26.07.2018 passed by the Division Bench of this Court in the case of GAUHAR AZIZ KHOMANI VS. STATE OF KARNATAKA BY CUBBON PARK POLICE in Crl.P.No.8718/2017 with reference to paragraphs 15 and 17 which read as hereunder:
“15. In the case on hand, perusal of the order produced by the petitioners themselves, it is the order passed by the XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) at Bengaluru. Therefore, this goes to show that the Court which passed the order is the Special Court under the NIA Act, 2008. Therefore, by seeing the said order itself, the contention of the learned counsel of the petitioners that the Court which passed the order is only the Sessions Court and not the Special Court established under the NIA Act, 2008, cannot be accepted. Therefore, when the bail application has been rejected by the said Court, then as per Section 21(4) of the NIA Act, 2008, an appeal lies to the Division Bench of the High Court and the petition filed under Section 439 of Cr.P.C. is not maintainable.
17. Therefore, the wordings specified in Section 22(3) of the NIA Act, 2008, also made it clear that if such Special Courts are not established or constituted by the State Government, then 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 in the said chapter of the NIA Act, 2008. It can also be understood that if the trial is going on before the Court of Session and at that movement, if the Special Court is constituted, then, under such circumstances, the said trial proceedings before the Court of Session can be transferred to the Special Court so constituted. Therefore, even looking to this provision, it goes to show that the intention of the legislators that if the offences are the Schedule Offences under the NIA Act, 2008, then in that case, the special procedure is to be adopted for trial of such offences. As we have already referred at the beginning of this order that the impugned order passed by the Court below mentioned is also a Special Court under the NIA Act, 2008, then the order of such Court can be challenged only in an appeal invoking Section 21(4) of the NIA Act, 2008, before the Division Bench of the High Court as held by the Hon'ble Apex Court in case of STATE OF ANDHRA PRADESH VS. MOHAMMED HUSSAIN AND SALEEM, SADHWI PRAGNA SINGH THAKUR VS. NATIONAL INVESTIGATION AGENCY reported in (2013)6 ABR 670 and the petition filed under Section 439 of Cr.P.C. is not maintainable. Therefore, even if it is assumed that XLIX Additional City Civil and Sessions Court, Bengaluru, is not the Special Court constituted by the State Government, even then, the petitioners cannot maintain the petition under Section 439 of Cr.P.C.”
11. Therefore, it is contended that the Division Bench having considered the Full Bench judgment of the Patna High Court for reasons accorded in the said order, did not follow the said order. The view of the Division Bench of this Court was also followed in the subsequent order dated 10.04.2019 passed in the case of RIYAZ AHAMED SAYEEDI VS. STATE OF KARNATAKA in Crl.P.No.4107 of 2018. It is further contended that the plea of the appellants that the Court as constituted under the UA(P) Act alone has to try the offences is incorrect. The offences charged against the accused are not just offences as narrated under the UA(P) Act, but also the offences as narrated in the schedule to the NIA Act. Therefore, the said contention cannot be accepted.
12. Reliance is placed on sub-section (3) of Section 22 of NIA Act to contend that the jurisdiction is conferred under this Act on a Special Court. Reliance is also placed on sub-section (1) of Section 11 of the NIA Act to contend that the Central Government shall, by notification in the official gazette can constitute one or more Special Courts for the trial of scheduled offences in such area or areas as may be specified. Therefore, it is clear that there is no reference to the restriction of an investigation being done by NIA alone. So far as the contention of the learned counsel for the appellant that there is restriction for the Special Court to try such offences where investigation is not conducted by the agency, is disputed. It is contended that Section 13 of the NIA Act makes it mandatory for the Special Court to try all cases that are investigated by the agency.
13. Heard learned counsels.
14. Learned counsel for the appellant relies on the order of the Full Bench of High Court of Patna in BAHADUR KORA’S case (cited supra) wherein it was held that on reading of Section 13(1) of NIA Act, it is clear that the Act excludes the jurisdiction of other Courts to try every offence or any scheduled offences investigated by the agency. In paragraph No.22, it was held that the expression ‘every scheduled offence investigated by the agency’ has two components – firstly, the question of identification of the offences and secondly the agency that investigates the same. It is only when both the factors exist that the Special Court gets jurisdiction. The same view appears to have been followed by the High Court of Bombay in Naser Bin Abu Bakr’s case (cited supra). However, so far as the order of the Division Bench of this Court is concerned, even though reference was made to the Full Bench judgment of Patna High Court, it appears that the reasoning adopted by the Full Bench was not accepted by the Division Bench of this Court. The Division Bench in Gauhar Aziz’s case (cited supra) at para 17 on the question of an appeal, did not accept the view of the Patna High Court which held that the appeal could be filed sans an application under Section 439 Cr.P.C. the same was not accepted by this Court.
15. Undisputedly, the Special Court gets jurisdiction to try only those offences that are in the schedule to the NIA Act. Therefore, the view of the Full Bench in interpreting Section 13(1) of the NIA Act even if considered, the same would postulate that if the investigation is done by the agency, in that event, it is the Special Court alone that has jurisdiction to try the case. However, that cannot be read by implication, that where investigation is not done by the NIA, the jurisdiction of the Special Court stands ousted. There is no specific ouster of jurisdiction of the Special Court wherein the investigation is not done by the agency. The High Court of Patna interpreted Section 13(1) of the NIA Act to hold that by necessary implication, if the investigation is not done by the NIA, then the Special Court has no jurisdiction to try the offences.
16. We are of the considered view that the ouster of jurisdiction of the Court would have to be clear and specific. In the given facts of this case and in terms of Section 13(1) of the NIA Act, in our considered view, the jurisdiction of the Special Court cannot be ousted by a mere implication of law. The jurisdiction to try the offences in terms of Section 11 would clearly indicate the trial of scheduled offences as narrated in the schedule to the NIA Act. As long as the charges that are framed against the accused can be found in the schedule, the Special Court would have jurisdiction to try the same.
17. So far as Section 6 of the NIA Act is concerned, the same would indicate that on a report being submitted under Sub-section (1), the Central Government shall determine within 15 days from the date of receipt of such report, whether the offence is a scheduled offence or not and whether it is a fit case to be investigated by the agency. In terms of sub-sections (3) and (4), it has a discretion to direct the investigation to be done by the NIA. It also has a suo motu power under sub-section (5) to direct the NIA to investigate the offence. Sub-section (7) would indicate that until and unless 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. In terms of Section 10 nothing contained otherwise in the Act shall prevent the State Government from investigating into any scheduled offences.
18. Therefore, reading of the above provisions would indicate that the investigation of a scheduled offence need not necessarily be done by the NIA. It is at the discretion of the Central Government that the investigation could be ordered to be done by the NIA. In the absence of a specific order or in the absence of any order being passed by the Central Government, the investigation shall continue to be done by the State agency. Therefore, a reading of these provisions would indicate that the investigation is necessarily to be commenced by the State under Section 154 of Code of Criminal Procedure. The investigation shall continue and has to be taken to its logical end by the State until and unless there is an order by the Central Government directing further investigation from that stage onwards to the NIA. If there is any such order, then the investigation would have to be completed only by the NIA and necessary consequences would flow. If there is no such order by the Central Government, the investigation has to be proceeded and completed by the State agency. Therefore, we are of the considered view that so far as the investigation is concerned, it cannot be said that the State Government has no jurisdiction at all to conduct the investigation of an offence that forms part of the schedule to the NIA Act.
19. So far as the contentions of the appellants that the offence is relatable to the offence as narrated in UA(P) Act is concerned, on facts, it could be seen that the accused are also charged of other offences as narrated in the schedule to the NIA Act namely Section 121A of Indian Penal Code. Therefore, it cannot be said that it is only the Court as narrated under the UA(P) Act that would have jurisdiction. Since one of the offences as narrated is a scheduled offence, the Special Court would have jurisdiction to try the same.
20. It is further relevant to notice that Section 2(h) of the National Investigation Agency Act defines Special Court as follows:-
“Special Court” means a Special Court constituted under Section 11 or, as the case may be, under Section 22;”
Section 2(1)(d) of the Unlawful Activities (Prevention) Act, 1967 defines a Court as follows:-
“Court means a criminal court having jurisdiction, under the Code, to try offences under this Act [and includes a special court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008(34 of 2008;]”
Therefore, under the UA(P) Act, the Court means a Criminal Court having jurisdiction under the Code to try offences under the Act and it also includes a Special court constituted under Section 11 or Section 21 of NIA Act. Therefore, the Court as constituted under the UA(P) Act would include those class of Courts. Therefore, the contention of the appellant’s counsel cannot be sustained.
20. Therefore, we hold that the appeal being devoid of merit, requires to be rejected. The Special Court would have the jurisdiction to try the offences provided they are scheduled offences to the NIA. The Agency that conducts the investigation does not determine the jurisdiction of the Special Court. The jurisdiction of the Special Court is determined by the nature of the offences and not as to who conducts the investigation.
21. For all the aforesaid reasons, we do not find any merit in this appeal. Consequently the appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE ST/AKC