NASER BIN ABU BAKR YAFAI versus THE STATE OF MAHARASHTRA & ANR. on 20 October 2021

[2021] 10 S.C.R. 353

NASER BIN ABU BAKR YAFAI

v.

THE STATE OF MAHARASHTRA & ANR.

(Criminal Appeal No. 1165 of 2021)

OCTOBER 20, 2021

[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATHAND B. V. NAGARATHNA, JJ.]

National Investigation Agency Act, 2008: s.6 – Investigationby NIA – If the Central government is of the opinion that the offenceis a scheduled offence and it is a fit case to be investigated by theNIA, it shall direct the NIA to investigate the offence – Upon theissuance of a direction by the Central government, two consequencesemanate under sub-Section (6) of s.6: (a) the State government andany police officer of the State government investigating the offenceshall not proceed with the investigation; and (b) the relevantdocuments and records must be transmitted to the NIA forthwith –Sub-Section (7) of s.6 contains a declaration that till the NIA “takesup the investigation of the case”, it shall be the duty of the officein-charge of the police station to continue the investigation – Theprovisions of sub-Sections (6) and (7) of s.6 must be read togetherand in harmony in order to fulfill the purpose and intent of theParliament in a holistic manner – While enacting the provisions ofsub-Section (7) of s.6, the Parliament was conscious of the fact thatan interlude may occur between the date of the issuance of adirection 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 s.6 and the actual taking up of the investigation by theNIA, there should be no hiatus in the investigation to the detrimentof the interests of national security involved in the enactment of thelegislation.

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 theregistration of the FIR on 14 July 2016, on receipt of sourceinformation that appellant-N was in contact over the internet withmembers of IS/ISIS/ISIL/Daesh – This led to arrest of four accused

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Apersons, including appellant-N and one ‘M’ – Thereafter, consideringthe gravity of the offence involved, the Central government directedthe NIA Mumbai to take up further investigation of the case on 8September 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 theBcase records to them on 23 November 2016, and it was only on 8December 2016 that the records were handed over to the NIAMumbai by the ATS Nanded – Meanwhile, ATS Nanded had filedthe charge-sheet before the CJM, Nanded on 7 October 2016 (whichwas prior to even the letter of the NIA Mumbai dated 23 NovemberC2016 for the handing over of the case records) – Likewise, the CJM,Nanded took cognizance of the offence and committed the case totrial before the ASJ, Nanded on 18 October 2016 – While the NIAMumbai may have re-numbered the case file on 14 September 2016,it could not have taken the initial step of its investigation into thecase till it had access to the case papers, which it only receivedDfrom the ATS Nanded on 8 December 2016 – Thus, the mererenumbering of the case filed by the NIA Mumbai did not take awaythe power of the ATS Nanded to continue the investigation – Thesaid authority could do so till the records of the case were receivedby the NIA Mumbai – Hence, the investigation conducted by theEATS 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 natureso as to remove any doubt about the duty of the officer in-charge ofthe police station to continue the investigation till the ‘Agency’, i.e.,the NIA Mumbai in the instant case, took up the investigation onreceipt of the case papers – Therefore, the continuation of theFinvestigation, and the filing of the charge-sheet upon its conclusion,by the ATS Nanded was in terms of the statutory mandate unders.6(7) of the NIA Act.

Conclusion

National Investigation Agency Act, 2008: ss.10, 11 –Jurisdiction of CJM Nanded for remand and committal to trial – AGreading of s.10 of the NIA Act indicates that there is no embargo onthe State Investigating Agency to investigate a scheduled offence,which would include offences under the UAPA – Consequently, tillthe investigation was taken up by the NIA Mumbai, the ATS Nandedwas acting within jurisdiction in investigating the offence and filingH

the charge-sheet in the instant case – NIA Mumbai took up theinvestigation only on 8 December 2016 after receiving the recordsfrom the ATS Nanded, and thereupon it filed an application fortransfer of the case from the ASJ, Nanded to the NIA Special Court,Mumbai constituted under s.11 of the NIA Act – However, till theNIA Mumbai took over the investigation, jurisdiction would residewith a Court which ordinarily had it – The Government ofMaharashtra in exercise of powers conferred by s.11 read with s.185of the CrPC had issued a notification dated 26 August 2016designating the CJM, Nanded as the remand court and the ASJ,Nanded as a Special Court for the trial of cases filed by the ATSNanded – There was no challenge to the said notification – In thisbackdrop, the CJM, Nanded was designated as a Court of remandand the ASJ, Nanded as a Special Court under the CrPC for thetrial of cases filed by the ATS Nanded – Hence, they both had thejurisdiction to entertain the instant case under the UAPA till theNIA Mumbai took over the investigation on 8 December 2016, andsought a transfer of the case to the NIA Special Court at Mumbaiconstituted 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 theSchedule to the NIA Act. Section 2(h) defines the expression“Special Court” to mean a Special Court constituted under Section11, or as the case may be, under Section 22. Further, words andexpressions used but not defined in the NIA Act, but defined inthe CrPC, have the meaning assigned to them in the CrPC. TheNIA has been constituted as “a special agency” under Section3(1) for the investigation and prosecution of offences underthe enactments specified in the Schedule to the NIA Act.[Para 20][371-F-H; 372-A]

2. The salient aspects which emerge from the provisionsof Section 6 are: On the receipt and recording of informationunder Section 154 of the CrPC relating to a scheduled offenceunder the NIA Act, a report must be forwarded to the Stategovernment by the officer in-charge of the police station (sub- AB

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ASection (1) of Section 6); The State government on receipt of thereport under sub-Section (1) must, as expeditiously as possible,forward it to the Central government (sub-Section (2) of Section6); The purpose of the first and second steps embodied in sub-Sections (1) and (2) of Section 6 is to enable the Centralgovernment to make a decision in terms of sub-Section (3); UponBreceiving a report from the State government, the Centralgovernment must determine within fifteen days, on the basis ofthe information made available by the State government orreceived from other sources, whether:(a) the offence is ascheduled offence; and (b) if it is fit case to be investigated by theCNIA, having regard to the gravity of the offence and other relevantfactors (sub-Section (3) of Section 6); If the Central governmentis of the opinion that the offence is a scheduled offence and it is afit case to be investigated by the NIA, it shall direct the NIA toinvestigate the offence (sub-Section (4) of Section 6); Anoverriding power is entrusted to the Central government (evidentDfrom the incorporation of a non-obstante provision in sub-Section(5)) to suo motu direct the NIA to investigate the offence if it is ofthe opinion that: (a) a scheduled offence has been committedunder the NIA Act; and (b) that it is required to be investigatedby the NIA (sub-Section (5) of Section 6); Upon the issuance of aEdirection 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 officerof the State government investigating the offence shall notproceed with the investigation; and (b) the relevant documentsand records must be transmitted to the NIA forthwith (sub-SectionF(6) of Section 6); By way of abundant caution (“for the removal ofdoubts”), sub-Section (7) of Section 6 contains a declaration thattill the NIA “takes up the investigation of the case”, it shall bethe duty of the office in-charge of the police station to continuethe investigation (sub-Section (7) of Section 6); The provisionsGof sub-Sections(6) and (7) of Section 6 must be read together andin harmony in order to fulfill the purpose and intent of theParliament in a holistic manner; The object and underlyingpurpose of sub-Section (7) is to ensure that there is no hiatus in H

the course of the investigation. Hence, while sub-Section (6)stipulates a two-fold requirement, that upon the issuance of adirection under sub-Sections (4) or (5) of Section 6 neither theState government nor the police shall proceed with theinvestigation and must transmit the documents and records tothe NIA forthwith, sub-Section (7) imposes a statutory obligationon the officer in-charge of the police station to continue theinvestigation till the NIA actually takes over; While enacting theprovisions of sub-Section (7) of Section 6, the Parliament wasconscious of the fact that an interlude may occur between thedate of the issuance of a direction and the actual taking up of theinvestigation by the NIA. However, between the issuance of adirection under sub-Sections (4) or (5) of Section 6 and the actualtaking up of the investigation by the NIA, there should be nohiatus in the investigation to the detriment of the interests ofnational 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 offenceunder the NIA Act, the NIA may, having regard to the gravity ofthe offence and other relevant factors, either: (i) Request theState government to associate itself with the investigation, if it isexpedient to do so; or (ii) Transfer the case to the Stategovernment for investigation and trial of the offence with theprevious approval of the Central government. Section 9 mandatesthat the State government shall extend all assistance andcooperation to the NIA for the investigation of scheduledoffences. The plain language of Section 10 indicates that unlessthere is a contrary provision in the NIA Act, nothing contained init would affect the powers of the State government to investigateand prosecute any scheduled offence or other offences under anylaw for the time being in force. Hence, unless the power which isentrusted to the State government by Section 10 to investigate(and prosecute) a scheduled offence under the NIA Act is takenaway by a provision of the same statute, that power is preservedby Section 10. Therefore, what emerges is that upon the issuanceof a direction under sub-Sections (4) and (5) of Section 6, theState government and a police officer of the State government ABC

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Ainvestigating the offence are not to proceed with the investigationand have to forthwith transmit the documents and records to theNIA (Section 6(6)) but equally, it is the duty of the officerincharge of the police station to continue the investigation tillthe NIA actually takes up the investigation of the case (Section6(7)). In other words, the power of the officer in-charge of theBpolice station to continue with the investigation is denuded uponthe issuance of a direction under sub-Sections (4) or (5) of Section6 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 investigationCof the case would result in the power of the officer in-charge ofthe police station being denuded. Until then, the power of theState government to investigate and prosecute any scheduledoffence, 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]

D4. Section 11(1) of the NIA Act empowers the Centralgovernment to constitute Special Courts “for the trial ofscheduled offences”. Under sub-Section (1) of Section 13, everyscheduled offence which has been investigated by the NIA shallbe tried only by the Special Court within whose local jurisdictionthe offence was committed. The exclusive jurisdiction which is Econferred on the Special Court to try a scheduled offenceinvestigated by the NIA is amplified by the non-obstante provisionwhich overrides the provisions contained in the CrPC. Section22(1) empowers the State government to constitute Special Courtsfor the trial of offences under the enactments which have beenFspecified in the Schedule to the NIA Act, and which havebeen 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 CentralGgovernment directed the NIA Mumbai to take over theinvestigation under Section 6(4), the consequence under Section6(6) was that ATS Nanded could not continue with the investigation(and file a charge-sheet) thereafter. The plain text of Section 6indicates that the above proposition is incorrect. Sub-Section (4)Hof Section 6 contemplates a direction by the Central government

to the NIA to investigate an offence, where it is of the opinionthat the offence is a scheduled offence and that it is fit to beinvestigated by the NIA. Sub-Section (5) also confers a suo motupower on the Central government to direct the NIA to investigatea scheduled offence. Under sub-Section (6), upon the issuance ofa direction under sub-Sections (4) or (5) of Section 6, the Stategovernment and the officer in-charge of the police stationinvestigating the offence “shall not proceed with the investigationand shall forthwith transmit the relevant documents and recordsto the [NIA]”. However, this stipulation has to be read in thecontext of sub-Section (7), under which the investigation by theofficer in-charge of the police station has to continue till the NIAtakes up the investigation of the case. Sub-Section (7) is aprovision for the “removal of doubts”. Such a provision clarifiesthe intent of the law-maker so as to place it beyond the realm ofambiguity. Hence, on a conjoint reading of sub-Sections (4), (5),(6) and (7) of Section 6, what emerges is that the ATS Nandedhad a duty to continue with the investigation till the NIA Mumbaiactually took over the investigation from it. [Para 33][379-B-F]

H N Rishbud and Inder Singh v. State of Delhi [1955] 1SCR 1150; Ramsinh Bavaji Jadeja v. State of Gujarat(1994) 2 SCC 685 : [1994] 2 SCR 239; Union of Indiav. Prakash P. Hinduja (2003) 6 SCC 195 : [2003] 1Suppl. SCR 307; Bikramjit Singh v. State of Punjab(2020) 10 SCC 616; M Ravindran v. IntelligenceOfficer, Directorate of Revenue Intelligence (2021) 2SCC 485; Sadique v. State of Madhya Pradesh 2021(12) SCALE 401; Fakhrey Alam v. State of UttarPradesh 2021 SCC OnLine SC 532 – relied on.

6. An investigation commences upon the receipt ofinformation by the police which discloses the commission of acognizable offence. However, the mere receipt and recording ofsuch information (through an FIR) by itself does not mean thatthe investigation has also commenced. Rather, the investigationcommences when the police takes the first step (of proceedingto the spot or collecting evidence or speaking to a witness orarresting the accused person) on the basis of such information.

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AIn the present case, the investigation was initiated by the ATSNanded following the registration of the FIR on 14 July 2016, onreceipt of source information that appellant-N was in contact overthe internet with members of IS/ISIS/ISIL/Daesh. This led to thearrest of four accused persons, including appellant-N and one‘M’. Thereafter, considering the gravity of the offence involved,Bthe Central government directed the NIA Mumbai to take upfurther investigation of the case on 8 September 2016, exercisingits powers under Section 6(4) of the NIA Act. The NIA Mumbaire-numbered the case on 14 September 2016. However, the NIAMumbai intimated the ATS Nanded to transfer the case recordsCto them on 23 November 2016, and it was only on 8 December2016 that the records were handed over to the NIA Mumbai bythe ATS Nanded. ATS Nanded filed the charge-sheet before theCJM, Nanded on 7 October 2016 (which was prior to even theletter of the NIA Mumbai dated 23 November 2016 for thehanding over of the case records). Likewise, the CJM, NandedDtook cognizance of the offence and committed the case totrial before the ASJ, Nanded on 18 October 2016. [Paras 37,38][383-A-F]

7. The contention of the ATS Nanded is that theinvestigation by them until the NIA Mumbai took up theEinvestigation 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 dutyof the officer in-charge of the Police Station to continue theinvestigation”. In the present case, the NIA Mumbai intimatedFthe ATS Nanded to transfer the case papers on 23 November2016, following which the ATS Nanded sent the papers on 8December 2016. While the NIA Mumbai may have re-numberedthe case file on 14 September 2016, it could not have taken theinitial step of its investigation into the case till it had access to the case papers, which it only received from the ATS Nanded onG8 December 2016. Thus, the mere renumbering of the case filedby the NIA Mumbai did not take away the power of the ATSNanded to continue the investigation. The said authority coulddo so till the records of the case were received by the NIAMumbai. Hence, the investigation conducted by the ATS NandedHprior to this was within the mandate of sub-Section (7) of Section 6 of the NIA Act. The said provision is clarificatory in nature soas to remove any doubt about the duty of the officer in-charge ofthe police station to continue the investigation till the ‘Agency’,i.e., the NIA Mumbai in the instant case, took up the investigationon receipt of the case papers. Therefore, the continuation of theinvestigation, and the filing of the charge-sheet upon itsconclusion, by the ATS Nanded was in terms of the statutorymandate under Section 6(7) of the NIA Act. [Para 39][383-F-H;384-A-C]

8. CJM, Nanded’s jurisdiction for remand and committalto trial Sub-Section (1) of Section 11 empowers the Centralgovernment to constitute Special Courts “for the trial ofscheduled offence”. Sub-Section (1) of Section 13 provides that,notwithstanding anything contained in the CrPC, every scheduledoffence investigated by the NIA shall be tried only by the SpecialCourt. Hence, the exclusive jurisdiction of the Special Court totry a scheduled offence under sub-Section (1) of Section 13attaches where the scheduled offence has been “investigated bythe [NIA]”. Further, sub-Section (1) of Section 16 is an enablingprovision which empowers a Special Court to take cognizance ofany offence without the accused being committed to it for trialupon receiving a complaint of facts which constitute such offenceor upon a police report of such offence. However, this clearlywould not affect either the antecedent investigation by the ATSNanded prior to the NIA Mumbai having taken up theinvestigation or the submission of the charge-sheet as a logicalconsequence of the investigation which was conducted by theATS Nanded. The enabling provisions of sub-Section (1) of Section16 would not invalidate the submission of the charge-sheet tothe 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 14July 2016. The charge-sheet was submitted on 7 October 2016.The 90 days period of remand would have been completed on 14October 2016. Applying the principles enunciated in BikramjitSingh (in relation to the power of the CJM to extend investigationupto 180 days) to the present case (in relation to the jurisdiction AB

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Aof the CJM in relation to remand and committal of case to trial),the first consideration would be whether there existed a SpecialCourt under Section 22 of the NIA Act to divest the CJM, Nandedof its jurisdiction. The appellants have produced variousnotifications issued by the Government of Maharashtradesignating Special Courts under Section 22 for trial of schedulesBoffences under the NIA Act. The earliest of those notifications isdated 13 April 2017. Hence, the principle enunciated by this Courtin Bikramjit Singh would not apply to the present case since thereexisted no Special Courts in the State of Maharashtra designatedunder Section 22 of the Act (since the investigation was beingCconducted by the ATS Nanded, which had the jurisdiction overthe case). [Para 47][391-A-C, E]

10. A reading of Section 10 of the NIA Act indicates thatthere is no embargo on the State Investigating Agency toinvestigate a scheduled offence, which would include offencesDunder the UAPA. Consequently, till the investigation was takenup by the NIA Mumbai, the ATS Nanded was acting withinjurisdiction in investigating the offence and filing the charge-sheetin the present case. Both of these took place prior to 8 December2016, which is when the investigation was handed over to theNIA Mumbai. Admittedly, once the NIA Mumbai took up theEinvestigation, the Special Court designated under Section 11 ofthe NIA Act would have sole jurisdiction to try the case. In thepresent case, the NIA Mumbai took up the investigation only on8 December 2016 after receiving the records from the ATSNanded, and thereupon it filed an application for transfer of theFcase from the ASJ, Nanded to the NIA Special Court, Mumbaiconstituted under Section 11 of the NIA Act. However, till theNIA Mumbai took over the investigation, jurisdiction would residewith a Court which ordinarily had it. The Government ofMaharashtra in exercise of powers conferred by Section 11 readwith Section 185 of the CrPC issued a notification dated 26 AugustG2016 designating the CJM, Nanded as the remand court and theASJ, Nanded as a Special Court for the trial of cases filed by theATS Nanded. There is no challenge to the notification dated 26August 2016. In this backdrop, the CJM, Nanded has been H

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designated as a Court of remand and the ASJ, Nanded as a SpecialCourt under the CrPC for the trial of cases filed by the ATSNanded. Hence, they both had the jurisdiction to entertain thepresent case under the UAPA till the NIA Mumbai took over theinvestigation on 8 December 2016, and sought a transfer of thecase to the NIA Special Court at Mumbai constituted underSection 11 of the NIA Act. [Paras 48, 49][391-F-H; 392-A-D]

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1165 of 2021.

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From the Judgment and Order dated 05.07.2018 of the High Courtof Judicature at Bombay in Writ Petition No.5022 of 2017.

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Criminal Appeal No.1166 of 2021.

Colin Gonsalves, Sr. Adv., Farrukh Rasheed, Abu Bakr Sabbaq,Ms. Olivia Bang, Satya Mitra, Advs. for the Appellant.

K. M. Nataraj, ASG, Ms. Sairica Raju, Kanu Agarwal, Ms. SwatiGhildiyal, Zoheb Hussain, B. V. Balaram Das, Rahul Chitnis, SachinPatil, Aaditya A. Pande, Geo Joseph, Advs. for the Respondents.

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The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into sections to facilitate analysis.They are:

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AFacts

BSubmissions

CProvisions of the NIA Act

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ADContinuation of investigation by the ATS Nanded ECJM, Nanded’s jurisdiction for remand and committal to trial FConclusion

A FactsB1. This batch of two appeals arises from a judgment dated 5 July2018 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-Band 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]Cand Sections 4, 5 and 6 of the Explosive Substances Act 1908[4]. It wasregistered with the Anti-Terrorism Squad[5] at the Kala Chowki PoliceStation Mumbai on the basis of written information provided by ManikVitthal 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 wasDresiding in Syria). The complaint alleged that the ATS had received sourceinformation that Naser Bin Abu BakrYafai was in contact through theinternet with members of the Islamic State[8]/Islamic State of Iraq andSyria[9]/Islamic State of Iraq and Levant[10]/Daesh, terrorist organizationsbanned by the United Nations and the Indian Government. He was allegedto have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh)Ein making bombs/IEDs to cause a blast during the month of Ramzan, forwhich he had procured the required material in July 2016. The ATSarrested four persons from Parbhani, namely: (i) Naser Bin Abu BakrYafai; (ii) Mohammad Shahed Khan (the appellant in the companionappeal[11]); (iii) Iqbal Ahmed; and (iv) Mohammad Raisuddin.F3. On 26 August 2016, the Government of Maharashtra, in exerciseof powers conferred by Section 11 read with Section 185 of the Code of 1 CR No 8 of 2016

2 “IPC”

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6 A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra 7 Criminal Appeal No 1165 of 2021

8 “IS”

9 “ISIS”

10 “ISIL”

H11 Criminal Appeal No 1166 of 2021

Criminal Procedure 1973[12] issued a notification designating the ChiefJudicial Magistrate[13], Nanded, as a Court of remand and the Court ofAdditional Sessions Judge[14], Nanded, as a Special Court to try casesfiled by the ATS Nanded.

4. On 8 September 2016, the Ministry of Home Affairs of theUnion government[15] directed the National Investigation Agency[16] to takeover further investigation in the present case by exercising powers underSection 6(4) of the National Investigation Agency Act 2008[17]. On 14September 2016, the NIA Mumbai renumbered the case[18] for taking upfurther investigation.

5. The ATS continued with the investigation and filed a charge-sheet on 7 October 2016 against the aforesaid accused persons underSections 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 beforethe CJM, Nanded. The CJM, Nanded took cognizance of the offenceand on 18 October 2016 committed the case[19] to the Court of ASJ,Nanded.

6. On 23 November 2016, the NIA Mumbai informed the ATSNanded of having taken over the investigation and sought the papers/records of the case. On 8 December 2016, the ATS Nanded handedover the case papers to the NIA Mumbai. At present, the NIA Mumbaiis seized of the matter and is conducting further investigation.

7. During the course of the above events, Naser Bin Abu BakrYafai had filed an application on 21 October 2016 before the ASJ, Nanded,under Section 167(2) of the CrPC. In his application, he contended thatthe offences under the UAPA are scheduled offences under the NIAAct, and hence, the CJM, Nanded had no jurisdiction to pass an order onremand, to take cognizance and pass an order of committal of theproceedings to the ASJ, Nanded since it was not a “Court” establishedunder Sections 11 or 22 of the NIA Act. On 14 November 2016, theASJ, Nanded rejected Naser Bin Abu Bakr Yafai’s application since, at 12 “CrPC”13 “CJM”14 “ASJ”15 F.No. 11011/24/2016-IS.IV16 “NIA”17 “NIA Act”18 RC-03/2016/NIA/MUM19 Sessions Case No 106 of 2016

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Athat time, the NIA Mumbai had not taken over the investigation from theATS Nanded and hence, the ATS Nanded had to continue with theinvestigation under Section 6(7) of the NIA Act. Therefore, the ATSNanded, in light of the notifications issued by the Government ofMaharashtra, was held to have correctly filed the charge-sheet beforethe CJM, Nanded who committed the case to trial before the ASJ, Nanded.B

8. The appellant filed a criminal writ petition[20] before the HighCourt of Judicature at Bombay to challenge the order of the ASJ, Nanded.During the pendency of the petition, the NIA Mumbai filed anapplication[21] under Section 407(2) of the CrPC before the High Courtseeking transfer of the records and proceedings in the trial from theCASJ, Nanded to the NIA Special Court, Mumbai on the ground that theNIA Mumbai was taking up further investigation of the case.

9. By judgment and order dated 5 July 2018, a Division Bench ofthe High Court dismissed the writ petition filed by Naser Bin Abu BakrYafai and allowed the application filed by NIA Mumbai and transferredDthe case from the Court of the ASJ, Nanded to the NIA Special Court,Mumbai. The High Court observed that the power of investigation bythe police officer of the State government would cease only after theNIA takes over the investigation of a scheduled offence. Further, in theview of the High Court, the NIA Mumbai had taken over the investigationEin the present case only on 8 December 2016, when it had received thepapers from ATS Nanded. The High Court also held that the ASJ, Nandedhad jurisdiction under the CrPC to try the offences under the UAPA,even though they were scheduled offences under the NIA Act, until theinvestigation was entrusted to and taken over by the NIA, after whichthe Special Court constituted under Section 11 of the NIA Act wouldFexclusively try such scheduled offences. Naser Bin Abu Bakr Yafaithen filed a special leave petition[22 ]before this Court challenging the orderof the Bombay High Court.

10. On the other hand, on 4 September 2017, Mohammad ShahedKhan (the appellant in the companion appeal) had written a letter to theGChief Justice of the Bombay High Court for his release and arguing thathis detention was illegal since the ATS Nanded could not have filed thecharge-sheet once the NIA Mumbai had taken over the investigation.

20 Criminal Writ Petition No 5022 of 201721 Criminal Application No 27 of 2017H22 “SLP”

The letter was converted into a writ petition, and is pending before theBombay High Court.

11. Mohammad Shahed Khan also filed an application for bailbefore the NIA Special Court, Mumbai on 27 April 2021, which wasrejected by an order dated 22 June 2021. While dismissing MohammadShahed Khan’s application, the NIA Special Court, Mumbai observedthat:

“15. Considering the fact that the issue in respect of jurisdictionfor remand, cognizance and committal of the case has alreadybeen decided by the Learned Sessions Judge, Nanded and thatthe same has been confirmed by the Hon’ble Bombay High Court,wherein the applicant was also one of the parties, he cannot beallowed to reopen said issue before this court. Therefore, I am ofthe view that the application being devoid of substance, deservesto be rejected.”

12. Mohammad Shahed Khan then filed an SLP to challenge thejudgment and order dated 5 July 2018, though he was not a party to theproceedings before the Bombay High Court.

B Submissions

13. The SLPs which invoke the jurisdiction of this Court underArticle 136 have been instituted essentially on two grounds. The firstground is that once the Central government entrusted the investigationto the NIA under Section 6(4) of the NIA Act, ATS Nanded had nojurisdiction to continue with the investigation into a scheduled offenceunder the NIA Act. The second ground is that since the offences underthe UAPA are scheduled offences under the NIA Act, even if investigatedby the State Investigating Agency, they would be exclusively triable by aSpecial Court constituted under the NIA Act and the CJM, Nanded hadno jurisdiction to remand the accused persons and commit the case fortrial before the ASJ, Nanded.

14. The above submissions have been advanced during the courseof arguments by Mr Farrukh Rasheed, Counsel appearing on behalf ofNaser Bin Abu Bakr Yafai. Buttressing the submissions, Mr Rasheedurged that:

(i) The expression “Special Court” as defined in Section 2(h)of the NIA Act is to mean a Special Court constituted underSection 11 or, as the case may be, under Section 22; A

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A(ii)Where the Central government issues a direction, upon theformation of an opinion that the offence is a scheduledoffence and is fit to be investigated by the NIA, theconsequence is provided by sub-Section (6) of Section 6;

(iii) Upon the issuance of a direction under sub-Section (4) orBsub-Section (5) of Section 6, neither the State governmentnor a police officer of the State Agency investigating theoffence can proceed with the investigation and mustforthwith transmit the relevant documents and records tothe NIA; C(iv)Section 11 empowers the Central government to constituteSpecial Courts for the trial of scheduled offences, whileSection 22 empowers the State governments to constituteSpecial Courts for the trial of offences specified in theSchedule to the NIA Act; D(v)In the present case, in spite of a direction under Section6(4), the ATS Nanded continued with its investigation andfiled 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 scheduledoffences under the NIA Act, the CJM, Nanded is divestedEof their jurisdiction. Further, since a Special Court wasdesignated by the Government of Maharashtra under Section22, only that Court had jurisdiction in the present case.

15. Advancing his submissions in the companion appeal, Mr ColinGonsalves, Senior Counsel appearing on behalf of Mohammad ShahedFKhan submitted that:

(i) The registration of an FIR on 14 September 2016 by NIAMumbai was the beginning of the investigation by them;

(ii) After the FIR was renumbered by the NIA on 14 SeptemberG2016, the ATS Nanded continued to investigate and filed acharge-sheet before the CJM, Nanded on 7 October 2016;

(iii) Sub-Sections (4) and (6) of Section 6 of the NIA Act containthree stipulations:

(a) The Central government, where it is of the opinionHthat the offence is a scheduled offence and is fit to be investigated by the NIA, shall direct the NIA toinvestigate the offence; A

(b) Upon the issuance of such a direction under sub-Section (4), the State government and its PoliceOfficers shall not proceed with the investigation anyfurther; andB

(c) The relevant documents and records must betransmitted to the NIA forthwith;

(iv) The NIA Act and the UAPA are criminal statutes of theutmost severity, and there is a statutory obligation upon theCNIA and the State Police Agency to collect papersimmediately and transmit them to the NIA, respectively;

(v) In the alternative, and even assuming that the State Policecould have investigated, the charge-sheet filed before theCJM, Nanded is a nullity because it could have been filedonly in the Special Court constituted under Section 22 ofthe NIA Act; and D

(vi) The committal proceedings are also a nullity because Section16(1) empowers the Special Court to take cognizance ofany offence without the committal of the accused to it fortrial, and hence the charge-sheet ought to have been filedby the ATS Nanded in a Special Court in view of theprovisions of Section 22.

E

On the basis of the above submissions, Mr Gonsalves, urged thatsince the charge-sheet was not filed within the stipulated period in aproper court entrusted with jurisdiction, the accused have an indefeasibleright to bail under the provisions of Section 43D of the UAPA.

F

16. The above submissions have been contested by Mr K MNataraj, Additional Solicitor General[23] appearing on behalf of the NIA.The ASG urged that:

G

(i) Sub-Section (7) of Section 6 of the NIA Act declares, forthe removal of doubts, that till the NIA takes up theinvestigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation; A(ii)The expression “it shall be the duty” connotes that it isobligatory for the officer-in-charge of the police station tocontinue with the investigation till the investigation is takenup by the NIA;

(iii) In other words, until the State Police is informed or intimatedBby the NIA of the case having been taken up forinvestigation, the officer-in-charge of the police station isunder a mandate to investigate;

(iv) If the submission which is urged by the appellants isaccepted, that would result in a vacuum in the investigationCbetween the date of the issuance of a direction underSection 6(4) and the actual taking over of the investigationby the NIA;

(v) Section 10 of the NIA Act recognises the powers of theState government to investigate scheduled offences; D(vi)Section 13 prescribes that every scheduled offenceinvestigated by the “Agency” shall be tried only by theSpecial Court within whose local jurisdiction it wascommitted. The expression “Agency” is defined in Section2(a) as the “National Investigation Agency” and as aEconsequence of Section 13, no embargo is placed on anyother Court until such time as the scheduled offence isinvestigated by the NIA;

(vii) The provisions of the NIA Act have to be construedharmoniously so as to achieve its purposes;F(viii) Sections 13 and Section 22 only govern the trial of offencesand not pre-trialprocedures;

(ix) The enabling provisions under Section 16(1) for a SpecialCourt to take cognizance of any offence without the accusedbeing committed to it for trial would not render the order ofGthe CJM, Nanded a nullity in the present case; and

(x) In this context, the principles which are enunciated inSection 465 of the CrPC would stand attracted.

17. Adopting the submissions of Mr K M Nataraj, Mr Rahul Chitnis,Standing Counsel for the State of Maharashtra urged that:H

(i) The mandate of Section 6 is that unless relevant documentsand records are transmitted, the NIA would not be construedto have taken up the investigation; A

(ii) On 23 November 2016, NIA Mumbai intimated the ATSNanded to transfer the case records, following which on 8December 2016, the papers and records were transmitted;Band (iii) While construing the provisions of the NIA Act,which deals with serious offences bearing on nationalsecurity, no vacuum can be allowed to exist in theinvestigation. Hence, both the investigation by the ATSNanded and the filing of the charge-sheet before the CJM,CNanded on 7 October 2016, were before the investigation was handed over to the NIA Mumbai. Therefore, therewas no illegality and the appeals should be dismissed.

18. The rival submissions now fall for consideration.

C Provisions of the NIA Act

D

19. The long title to the NIA Act elaborates upon its object, andthe 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 levelto investigate and prosecute offences affecting the sovereignty,security and integrity of India, security of State, friendly relationswith foreign States and offences under Acts enacted to implementinternational treaties, agreements, conventions and resolutions ofthe United Nations, its agencies and other internationalorganisations and for matters connected therewith or incidentalthereto.”

E

F

20. Section 2(a) of the NIA Act defines the expression “Agency”to mean the “National Investigation Agency” constituted under Section3. The expression “Scheduled Offence” is defined in Section 2(g) tomean offences specified in the Schedule to the NIA Act. Section 2(h)defines the expression “Special Court” to mean a Special Courtconstituted under Section 11, or as the case may be, under Section 22.Further, words and expressions used but not defined in the NIA Act, butdefined 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 G

H

Aspecified in the Schedule to the NIA Act. The Schedule to the Act isextracted below:

“1. The Atomic Energy Act, 1962 (33 of 1962);

2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967); B

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

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

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

6. The Suppression of Unlawful Acts Against Safety of MaritimeNavigation 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); D

8. Offences under—

(a) Chapter VI of the Indian Penal Code (45 of 1860) [sections121 to 130 (both inclusive)]; E

(b) Sections 489-A to 489-E (both inclusive) of the Indian PenalCode (45 of 1860).”

21. The controversy in the batch of appeals before this Courtrevolves substantially on the interpretation of Section 6 of the NIA Act.Section 6 is extracted below, as it stood before its amendment with effectFfrom 2 August 2019:

“6. Investigation of Scheduled Offences.—(1) On receipt ofinformation and recording thereof under Section 154 of the Coderelating to any Scheduled Offence the officer-in-charge of thepolice station shall forward the report to the State GovernmentGforthwith.

(2) On receipt of the report under sub-section (1), the StateGovernment shall forward the report to the Central Governmentas expeditiously as possible.

H

(3) On receipt of report from the State Government, the CentralGovernment shall determine on the basis of information madeavailable by the State Government or received from other sources,within fifteen days from the date of receipt of the report, whetherthe offence is a Scheduled Offence or not and also whether, havingregard to the gravity of the offence and other relevant factors, itis a fit case to be investigated by the Agency.

A

(4) Where the Central Government is of the opinion that the offenceis a Scheduled Offence and it is a fit case to be investigated bythe Agency, it shall direct the Agency to investigate the saidoffence.

C

(5) Notwithstanding anything contained in this section, if the CentralGovernment is of the opinion that a Scheduled Offence has beencommitted which is required to be investigated under this Act, itmay, suo motu, direct the Agency to investigate the said offence.

(6) Where any direction has been given under sub-section (4) orsub-section (5), the State Government and any police officer ofthe State Government investigating the offence shall not proceedwith the investigation and shall forthwith transmit the relevantdocuments and records to the Agency.

D

(7) For the removal of doubts it is hereby declared that till theAgency takes up the investigation of the case it shall be the dutyof the officer-in-charge of the police station to continue theinvestigation.”

E

22. The salient aspects which emerge from the provisions ofSection 6 need to be formulated at this stage. They are:

F

(i) On the receipt and recording of information under Section154 of the CrPC relating to a scheduled offence under theNIA Act, a report must be forwarded to the Stategovernment by the officer in-charge of the police station(sub-Section (1) of Section 6); G

(ii) The State government on receipt of the report under sub-Section (1) must, as expeditiously as possible, forward it tothe 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 Centralgovernment to make a decision in terms of sub-Section (3);H

A(iv)Upon receiving a report from the State government, theCentral government must determine within fifteen days, onthe basis of the information made available by the Stategovernment or received from other sources, whether:(a)the offence is a scheduled offence; and(b)if it is fit case tobe investigated by the NIA, having regard to the gravity ofBthe offence and other relevant factors (sub-Section (3) ofSection 6);

(v) If the Central government is of the opinion that the offenceis a scheduled offence and it is a fit case to be investigatedby the NIA, it shall direct the NIA to investigate the offenceC(sub-Section (4) of Section 6);

(vi) An overriding power is entrusted to the Central government(evident from the incorporation of a non-obstante provisionin sub-Section (5)) to suo motu direct the NIA to investigatethe offence if it is of the opinion that: (a) a scheduled offenceDhas been committed under the NIA Act; and (b) that it isrequired to be investigated by the NIA (sub-Section (5) ofSection 6);

(vii) Upon the issuance of a direction by the Central governmentunder sub-Sections (4) or (5) of Section 6, twoEconsequences emanate under sub-Section (6) of Section 6:(a) the State government and any police officer of the Stategovernment investigating the offence shall not proceed withthe investigation; and (b) the relevant documents and recordsmust be transmitted to the NIA forthwith (sub-Section (6)Fof Section 6);

(viii) By way of abundant caution (“for the removal of doubts”),sub-Section (7) of Section 6 contains a declaration that tillthe NIA “takes up the investigation of the case”, it shall bethe duty of the office in-charge of the police station toGcontinue the investigation (sub-Section (7) of Section 6);

(ix) The provisions of sub-Sections (6) and (7) of Section 6 mustbe read together and in harmony in order to fulfill the purposeand intent of the Parliament in a holistic manner;

(x) The object and underlying purpose of sub-Section (7) is toHensure 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 undersub-Sections (4) or (5) of Section 6 neither the Stategovernment nor the police shall proceed with theinvestigation and must transmit the documents and recordsto the NIA forthwith, sub-Section (7) imposes a statutoryobligation on the officer in-charge of the police station tocontinue the investigation till the NIA actually takes over;and

(xi) While enacting the provisions of sub-Section (7) of Section6,the Parliament was conscious of the fact that an interludemay occur between the date of the issuance of a directionand 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 ofthe investigation by the NIA, there should be no hiatus inthe 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 aduty on the officer in-charge of the police station to continue theinvestigation till the NIA actually takes up the investigation of the case.The taking up of the investigation by the NIA is evidently in pursuanceof the directions issued under sub-Sections (4) or (5) of Section 6. Havingregard to the seriousness and gravity of the scheduled offences underthe NIA Act, the continuation of the investigation by the officer in-chargeof the police station is not a matter of discretion but a mandate imposedby 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 tothe relationship between the State Investigation Agencies and the NIA,contemplated by the provisions of the enactment. Section 7[24] indicatesthat while investigating an offence under the NIA Act, the NIA may, 24 “7. Power to transfer investigation to State Government.— While investigating anyoffence under this Act, the Agency, having regard to the gravity of the offence and otherrelevant factors, may—

(a) if it is expedient to do so, request the State Government to associate itself with theinvestigation; or (b) with the previous approval of the Central Government, transfer the case to theState Government for investigation and trial of the offence.”

A

B

CD

E

F

G

H

Ahaving regard to the gravity of the offence and other relevant factors,either:

(i) Request the State government to associate itself with theinvestigation, if it is expedient to do so; or

(ii) Transfer the case to the State government for investigationBand trial of the offence with the previous approval of theCentral government.

25. Section 9[25] mandates that the State government shall extendall assistance and cooperation to the NIA for the investigation of scheduledoffences.C

26. Further, Section 10 is in the following terms:

“10. Power of State Government to investigate ScheduledOffences.—Save as otherwise provided in this Act, nothingcontained in this Act shall affect the powers of the StateDGovernment to investigate and prosecute any Scheduled Offenceor other offences under any law for the time being in force.”

The plain language of Section 10 indicates that unless there is acontrary provision in the NIA Act, nothing contained in it would affectthe powers of the State government to investigate and prosecute anyEscheduled offence or other offences under any law for the time being inforce. Hence, unless the power which is entrusted to the Stategovernment by Section 10 to investigate (and prosecute) a scheduledoffence under the NIA Act is taken away by a provision of the samestatute, that power is preserved by Section 10.F

27. Therefore, what emerges is that upon the issuance of a directionunder sub-Sections (4) and (5) of Section 6, the State government and apolice officer of the State government investigating the offence are notto proceed with the investigation and have to forthwith transmit thedocuments and records to the NIA (Section 6(6)) but equally, it is theGduty of the officer in-charge of the police station to continue theinvestigation till the NIA actually takes up the investigation of the case(Section 6(7)). In other words, the power of the officer in-charge of the 25 “9. State Government to extend assistance to National Investigation Agency.—TheState Government shall extend all assistance and co-operation to the Agency forHinvestigation of the Scheduled Offences.”

police station to continue with the investigation is denuded upon theissuance of a direction under sub-Sections (4) or (5) of Section 6and theNIA actually taking up the investigation of the case. Thus, both theissuance of directions under sub-Sections (4) and (5) of Section 6 andthe NIA actually taking up the investigation of the case would result inthe power of the officer in-charge of the police station being denuded.Until then, the power of the State government to investigate and prosecuteany scheduled offence, by virtue of the provisions of Section 10, ispreserved.

28. Sections 11 to 22 of the NIA Act are comprised in Chapter IVwhich is titled “Special Courts”. Sub-Section (1) of Section 11 providedas 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 OfficialGazette, for the trial of Scheduled Offences, constitute one ormore Special Courts.”

29. Section 13 provides for the jurisdiction of the Special Courts.Sub-Section (1) of Section 13is in the following terms:

“13. Jurisdiction of Special Courts.—

(1) Notwithstanding anything contained in the Code, everyScheduled Offence investigated by the Agency shall be tried onlyby the Special Court within whose local jurisdiction it wascommitted.”

30. Section 16 provides for the procedure and powers of the SpecialCourts. 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, withoutthe accused being committed to it for trial, upon receiving acomplaint of facts that constitute such offence or upon a policereport of such facts.”

31. Under Section 22, the State government is empowered toconstitute one or more Special Courts for the trial of offences under theenactments specified in the Schedule to the NIA Act. Section 22 is inthe following terms:

A

B

C

D

E

F

G

H

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

(1) The State Government may constitute one or more SpecialCourts for the trial of offences under any or all the enactmentsspecified in the Schedule.

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

(i) references to “Central Government” in Sections 11 and 15shall be construed as references to State Government; C(ii) reference to “Agency” in sub-section (1) of Section 13 shallbe construed as a reference to the “investigation agency of theState Government”;

(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”.D

(3) The jurisdiction conferred by this Act on a Special Court shall,until a Special Court is constituted by the State Government undersub-section (1) in the case of any offence punishable under thisAct, notwithstanding anything contained in the Code, be exercisedby the Court of Session of the division in which such offence hasEbeen committed and it shall have all the powers and follow theprocedure provided under this Chapter.

(4) On and from the date when the Special Court is constituted bythe State Government the trial of any offence investigated by theState Government under the provisions of this Act, which wouldFhave been required to be held before the Special Court, shall standtransferred to that Court on the date on which it is constituted.”

32. Section 11(1) of the NIA Act empowers the Centralgovernment to constitute Special Courts “for the trial of scheduledoffences”. Under sub-Section (1) of Section 13, every scheduled offenceGwhich has been investigated by the NIA shall be tried only by the SpecialCourt within whose local jurisdiction the offence was committed. Theexclusive jurisdiction which is conferred on the Special Court to try ascheduled offence investigated by the NIA is amplified by the non-obstante provision which overrides the provisions contained in the CrPC.HSection 22(1) empowers the State government to constitute Special Courts for the trial of offences under the enactments which have beenspecified in the Schedule to the NIA Act, and which have beeninvestigated by the State Investigative Agency.

D Continuation of investigation by the ATS Nanded

33. Having analysed the interplay of the provisions of the NIAAct, we come to the first ground raised in the present appeals. Thesubmission of the appellants is that once the Central government directedthe NIA Mumbai to take over the investigation under Section 6(4), theconsequence under Section 6(6) was that ATS Nanded could not continuewith the investigation (and file a charge-sheet) thereafter. The plain textof Section 6 indicates that the above proposition is incorrect. Sub-Section(4) of Section 6 contemplates a direction by the Central government tothe NIA to investigate an offence, where it is of the opinion that theoffence is a scheduled offence and that it is fit to be investigated by theNIA. Sub-Section (5) also confers a suo motu power on the Centralgovernment to direct the NIA to investigate a scheduled offence. Undersub-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 ofthe police station investigating the offence “shall not proceed with theinvestigation and shall forthwith transmit the relevant documents andrecords to the [NIA]”. However, this stipulation has to be read in thecontext of sub-Section (7), under which the investigation by the officerin-charge of the police station has to continue till the NIA takes up theinvestigation of the case. Sub-Section (7) is a provision for the “removalof doubts”. Such a provision clarifies the intent of the law-maker so asto place it beyond the realm of ambiguity. Hence, on a conjoint readingof sub-Sections (4), (5), (6) and (7) of Section 6, what emerges is thatthe ATS Nanded had a duty to continue with the investigation till theNIA Mumbai actually took over the investigation from it. Therefore, wemust now determine when did the NIA Mumbai actually commence theinvestigation in the present case.

34. In order to appreciate when the NIA Mumbai began itsinvestigation, we must first understand the meaning of the term. A threeJudge Bench of this Court in H N Rishbud and Inder Singh v. Stateof Delhi[26 ](“H N Rishbud”) outlined the various steps of an investigationunder the CrPC, while noting that investigation begins once the policereceives information that discloses the commission of a cognizable A

BC

DEF

G

H

Aoffence. The Court held that investigation encompasses the steps takenby the police to ascertain facts of the case and ends either with the filingof a charge-sheet or a closure report based on such facts. JusticeJagannadhadas held thus:

“5…Investigation usually starts on information relating toBthe commission of an offence given to an officer in chargeof a police station and recorded under Section 154 of theCode. If from information so received or otherwise, theofficer in charge of the police station has reason to suspectthe commission of an offence, he or some other subordinateofficer deputed by him, has to proceed to the spot toCinvestigate the facts and circumstances of the case and ifnecessary to take measures for the discovery and arrest ofthe offender. Thus investigation primarily consists in theascertainment of the facts and circumstances of the case.By definition, it includes “all the proceedings under the Code forDthe collection of evidence conducted by a police officer”. For theabove purposes, the investigating officer is given the power torequire before himself the attendance of any person appearing tobe acquainted with the circumstances of the case. He has alsothe authority to examine such person orally either by himself orby a duly authorised deputy. The officer examining any person inEthe course of investigation may reduce his statement into writingand such writing is available, in the trial that may follow, for use inthe manner provided in this behalf in Section 162. Under Section155 the officer in charge of a police station has the power ofmaking a search in any place for the seizure of anything believedFto be necessary for the purpose of the investigation. The searchhas to be conducted by such officer in person. A subordinate officermay be deputed by him for the purpose only for reasons to berecorded in writing if he is unable to conduct the search in personand there is no other competent officer available. The investigatingofficer has also the power to arrest the person or persons suspectedGof the commission of the offence under Section 54 of the Code. Apolice officer making an investigation is enjoined to enter hisproceedings in a diary from day-to-day. Where such investigationcannot be completed within the period of 24 hours and the accusedis in custody he is enjoined also to send a copy of the entries in theHdiary to the Magistrate concerned. It is important to notice that

where the investigation is conducted not by the officer in chargeof the police station but by a subordinate officer (by virtue of oneor other of the provisions enabling him to depute such subordinateofficer for any of the steps in the investigation) such subordinateofficer is to report the result of the investigation to the officer incharge of the police station. If, upon the completion of theinvestigation it appears to the officer in charge of the police stationthat there is no sufficient evidence or reasonable ground, he maydecide to release the suspected accused, if in custody, on hisexecuting a bond. If, however, it appears to him that there issufficient evidence or reasonable ground, to place the accused ontrial, he is to take the necessary steps therefore under Section170 of the Code. In either case, on the completion of theinvestigation he has to submit a report to the Magistrate underSection 173 of the Code in the prescribed form furnishing variousdetails. Thus, under the Code investigation consists generallyof 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 theoffence which may consist of (a) the examination of variouspersons (including the accused) and the reduction of theirstatements into writing, if the officer thinks fit, (b) the searchof places or seizure of things considered necessary for theinvestigation and to be produced at the trial, and (5)Formation of the opinion as to whether on the materialcollected there is a case to place the accused before aMagistrate for trial and if so taking the necessary steps forthe same by the filing of a charge-sheet under Section173…”

(emphasis supplied)

35. In Ramsinh Bavaji Jadeja v. State of Gujarat[27], a two JudgeBench of this Court held that the question as to when an investigationcommences has to be answered based upon the facts and circumstancesof each case, with one of the factors to be considered being whether theactions of the police were guided by information which disclosed thecommission of a cognizable offence. Justice NP Singh held:

ABC

DEF

G

A“7. From time to time, controversy has been raised, as to atwhat stage the investigation commences. That has to beconsidered and examined on the facts of each case, especially,when the information of a cognizable offence has been given ontelephone. If the telephonic message is cryptic in nature and theofficer in charge, proceeds to the place of occurrence on basis ofBthat information to find out the details of the nature of the offenceitself, then it cannot be said that the information, which had beenreceived by him on telephone, shall be deemed to be first informationreport. The object and purpose of giving such telephonic messageis not to lodge the first information report, but to request the officerCin charge of the police station to reach the place of occurrence.On the other hand, if the information given on telephone is notcryptic and on the basis of that information, the officer in charge,is prima facie satisfied about the commission of a cognizableoffence and he proceeds from the police station after recordingsuch information, to investigate such offence then any statementDmade by any person in respect of the said offence including detailsabout the participants, shall be deemed to be a statement made bya person to the police officer “in the course of an investigation”,covered by Section 162 of the Code. That statement cannot betreated as first information report…”

E36. In Union of India v. Prakash P. Hinduja[28], another twoJudge Bench held that investigation includes all proceedings under theCrPC for the collection of evidence by the police, which ends whenthere is enough evidence to determine whether to place the accusedperson before a Magistrate. Justice G P Mathur observed:F

“11…Section 2(h) CrPC defines “investigation” and it includes allthe proceedings under the Code for the collection of evidenceconducted by a police officer or by any person (other than aMagistrate) who is authorised by a Magistrate in this behalf. Itends with the formation of the opinion as to whether on the materialGcollected, there is a case to place the accused before a Magistratefor trial and if so, taking the necessary steps for the same by filingof a charge-sheet under Section 173 [see State of U.P. v.Bhagwant Kishore Joshi [AIR 1964 SC 221 : (1964) 1 Cri LJ140], 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 aninvestigation commences upon the receipt of information by the policewhich discloses the commission of a cognizable offence. However, themere receipt and recording of such information (through an FIR) byitself does not mean that the investigation has also commenced. Rather,the investigation commences when the police takes the first step (ofproceeding to the spot or collecting evidence or speaking to a witness orarresting the accused person) on the basis of such information.

38. In the present case, the investigation was initiated by the ATSNanded following the registration of the FIR on 14 July 2016, on receiptof source information that Naser Bin Abu Bakr Yafai was in contactover the internet with members of IS/ISIS/ISIL/Daesh. This led to thearrest of four accused persons, including Naser Bin Abu Bakr Yafai andMohammad Shahed Khan. Thereafter, considering the gravity of theoffence involved, the Central government directed the NIA Mumbai totake up further investigation of the case on 8 September 2016, exercisingits powers under Section 6(4) of the NIA Act. The NIA Mumbai re-numbered the case on 14 September 2016. However, the NIA Mumbaiintimated the ATS Nanded to transfer the case records to them on 23November 2016, and it was only on 8 December 2016 that the recordswere handed over to the NIA Mumbai by the ATS Nanded. ATS Nandedfiled the charge-sheet before the CJM, Nanded on 7 October 2016 (whichwas prior to even the letter of the NIA Mumbai dated 23 November2016 for the handing over of the case records). Likewise, the CJM,Nanded took cognizance of the offence and committed the case to trialbefore the ASJ, Nanded on 18 October 2016.

39. The contention of the ATS Nanded is that the investigation bythem until the NIA Mumbai took up the investigation of the case was interms of the mandate of sub-Section (7) of Section 6 since the provisionstates that “till the [NIA] takes up the investigation of the case, it shallbe the duty of the officer in-charge of the Police Station to continue theinvestigation”. In the present case, the NIA Mumbai intimated the ATSNanded to transfer the case papers on 23 November 2016, followingwhich the ATS Nanded sent the papers on 8 December 2016.While theNIA Mumbai may have re-numbered the case file on 14 September2016, it could not have taken the initial step of its investigation into the AB

CD

EF

G

H

AB

CD

EF

G

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Acase till it had access to the case papers, which it only received from theATS Nanded on 8 December 2016. Thus, the mere renumbering of thecase filed by the NIA Mumbai did not take away the power of the ATSNanded to continue the investigation. The said authority could do so tillthe records of the case were received by the NIA Mumbai. Hence, theinvestigation conducted by the ATS Nanded prior to this was within theBmandate of sub-Section (7) of Section 6 of the NIA Act. The saidprovision is clarificatory in nature so as to remove any doubt about theduty of the officer in-charge of the police station to continue theinvestigation till the ‘Agency’, i.e., the NIA Mumbai in the instant case,took up the investigation on receipt of the case papers. Therefore, theCcontinuation of the investigation, and the filing of the charge-sheet uponits conclusion, by the ATS Nanded was in terms of the statutory mandateunder Section 6(7) of the NIA Act.

E CJM, Nanded’s jurisdiction for remand and committal totrial D40. The second ground which has been urged on behalf of theappellants is that the submission of the charge-sheet before the CJM,Nanded and the order of committal are a nullity since the jurisdiction toinvestigate the offence was entrusted to the NIA Mumbai and thejurisdiction was vested with the Special Court. The continuation of theEinvestigation by the ATS Nanded has been analysed above and it hasbeen held to be in accordance with the mandate of Section 6(7) of theNIA Act. Now, sub-Section (1) of Section 11 empowers the Centralgovernment to constitute Special Courts “for the trial of scheduledoffence”. Sub-Section (1) of Section 13 provides that, notwithstandinganything contained in the CrPC, every scheduled offence investigatedFby the NIA shall be tried only by the Special Court. Hence, the exclusivejurisdiction of the Special Court to try a scheduled offence under sub-Section (1) of Section 13 attaches where the scheduled offence hasbeen “investigated by the [NIA]”. Further, sub-Section (1) of Section 16is an enabling provision which empowers a Special Court to takecognizance of any offence without the accused being committed to it forGtrial upon receiving a complaint of facts which constitute such offenceor upon a police report of such offence. However, this clearly would notaffect either the antecedent investigation by the ATS Nanded prior tothe NIA Mumbai having taken up the investigation or the submission ofthe charge-sheet as a logical consequence of the investigation whichHwas conducted by the ATS Nanded. The enabling provisions of sub- Section (1) of Section 16 would not invalidate the submission of thecharge-sheet to the CJM, Nanded or the order of committal made to theASJ, Nanded.

41. In this context, it would be worthwhile to revisit the fundamentalprinciple which was enunciated by the Bench of three learned Judges inH N Rishbud (supra). It was held that the cognizance or trial based onit would not necessarily be nullified even in a case where the investigationwas found to be invalid. The Court, speaking through JusticeJagannadhadas, held:

“9...Now, trial follows cognizance and cognizance is preceded byinvestigation. This is undoubtedly the basic scheme of the Code inrespect of cognizable cases. But it does not necessarily followthat an invalid investigation nullifies the cognizance or trial basedthereon. Here we are not concerned with the effect of the breachof a mandatory provision regulating the competence or procedureof the Court as regards cognizance or trial…”

The Court held that if therefore cognizance is in fact taken, on apolice report vitiated by the breach of a mandatory provision relating toan investigation, “there can be no doubt that the result of the trial whichfollows cannot be set aside unless illegality in the investigation can beshown to have brought about a miscarriage of justice”:

“9…If, therefore, cognizance is in fact taken, on a police reportvitiated by the breach of a mandatory provision relating toinvestigation, there can be no doubt that the result of the trialwhich follows it cannot be set aside unless the illegality in theinvestigation can be shown to have brought about a miscarriageof justice. That an illegality committed in the course of investigationdoes not affect the competence and the jurisdiction of the Courtfor 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 theillegality of arrest in the course of investigation while we areconcerned in the present cases with the illegality with referenceto the machinery for the collection of the evidence. This distinctionmay have a bearing on the question of prejudice or miscarriage ofjustice, but both the cases clearly show that invalidity of theinvestigation has no relation to the competence of the Court. Weare, therefore, clearly, also, of the opinion that where the A

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Acognizance of the case has in fact been taken and the case hasproceeded to termination, the invalidity of the precedentinvestigation does not vitiate the result, unless miscarriage of justicehas been caused thereby.”

42. We must of course clarify that in the present case, the CourtBis dealing with a situation where the investigation by the ATS Nandedwas valid in terms of the provisions of Section 6(7) of the NIA Act.

43. However, a second argument which has been urged by theappellants is that even if the ATS Nanded had the power to continuewith its investigation and file a charge-sheet, it could only be before aCSpecial Court under the NIA Act since the appellants have been chargedunder the UAPA, which is a scheduled offence under the NIA Act.

44. In support of this proposition, reliance has been placed upon ajudgment of a three Judge Bench of this Court in Bikramjit Singh v.State of Punjab[29 ](“Bikramjit Singh”). In Bikramjit Singh (supra),Dan FIR was registered on 18 November 2018 implicating offences underSections 302, 307, 452, 427, 341 and 34 of the IPC together with Section25 of the Arms Act 1959, Sections 3 to 6 of the ES Act and Section 13 ofthe UAPA. The appellant was arrested on 22 November 2018. Afterthe 90 days period expired on 31 December 2019, the appellant submittedan application for default bail to the Sub-Divisional Judicial Magistrate[30],Ewhich was dismissed by an order dated 25 February 2019, on the groundthat by an order dated 13 February 2019, the SDJM had already extendedtime from 90 to 180 days under Section 167 of the CrPC, as amended bySection 43D(2) of the UAPA. The revision petition filed by the petitioner,against the SDJM’s order dated 12 February 2019, before the ASJ, whichFwas the Special Court designated under Section 22 of the NIA Act,succeeded on 25 March 2019 with the finding that only the Special Courtwas competent to pass an order on an application moved under Section43D(2) of the UAPA. A day subsequent to it, on 26 March 2019, acharge-sheet was filed before the Special Court. Thereafter, despite theorder dated 25 March 2019, a revision petition filed by the appellantGagainst the order dated 25February 2019 was dismissed by the SpecialCourt on 11 April 2019, thereby refusing to grant default bail. The HighCourt then observed that since the investigation was being carried outby the State Police, the Magistrate had the power under Section 167(2)

29(2020) 10 SCC 616H30 “SDJM”

of the CrPC read with Section 43A of the UAPA to extend the period ofinvestigation up to 180 days and then commit the case to the Court ofSessions. In this backdrop, Justice Rohinton F Nariman, speaking forthe three Judge Bench, held that a notification by the Government ofPunjab had been issued under Section 22 for setting up Special Courtswithin the State of Punjab on 10 June 2014. After adverting to Sections13(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 ofthe two Acts, which are to be read together, becomes crystalclear. Under the first proviso in Section 43-D(2)(b), the 90-dayperiod indicated by the first proviso to Section 167(2) of the Codecan be extended up to a maximum period of 180 days if “theCourt” is satisfied with the report of the Public Prosecutorindicating progress of investigation and specific reasons fordetention of the accused beyond the period of 90 days. “TheCourt”, when read with the extended definition containedin Section 2(1)(d) of the UAPA, now speaks of the SpecialCourt constituted under Section 22 of the NIA Act. Whatbecomes clear, therefore, from a reading of these provisionsis that for all offences under the UAPA, the Special Courtalone has exclusive jurisdiction to try such offences. Thisbecomes even clearer on a reading of Section 16 of theNIA Act which makes it clear that the Special Court maytake cognizance of an offence without the accused beingcommitted to it for trial upon receipt of a complaint of factsor upon a police report of such facts. What is equally clearfrom a reading of Section 16(2) of the NIA Act is that even thoughoffences may be punishable with imprisonment for a term notexceeding 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 conspectusof the abovementioned provisions, Section 13 read with Section22(2)(ii) of the NIA Act, in particular, the argument of the learnedcounsel appearing on behalf of the State of Punjab based onSection 10 of the said Act has no legs to stand on since the SpecialCourt has exclusive jurisdiction over every Scheduled Offenceinvestigated by the investigating agency of the State.

26. Before the NIA Act was enacted, offences under the UAPAwere of two kinds — those with a maximum imprisonment of AB

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Aover 7 years, and those with a maximum imprisonment of 7 yearsand under. Under the Code as applicable to offences against otherlaws, offences having a maximum sentence of 7 years and underare triable by the Magistrate’s courts, whereas offences having amaximum sentence of above 7 years are triable by Courts ofSession. This scheme has been completely done away withBby the NIA Act, 2008 as all Scheduled Offences i.e. alloffences under the UAPA, whether investigated by theNational Investigation Agency or by the investigatingagencies of the State Government, are to be triedexclusively by Special Courts set up under that Act. In theCabsence of any designated court by notification issued byeither the Central Government or the State Government,the fallback is upon the Court of Session alone. Thus, underthe aforesaid scheme what becomes clear is that so far asall offences under the UAPA are concerned, theMagistrate’s jurisdiction to extend time under the firstDproviso in Section 43-D(2)(b) is non-existent, “the Court”being either a Sessions Court, in the absence of a notificationspecifying a Special Court, or the Special Court itself. Theimpugned judgment in arriving at the contrary conclusion isincorrect as it has missed Section 22(2) read with Section 13 ofEthe NIA Act. Also, the impugned judgment has missed Section16(1) of the NIA Act which states that a Special Court may takecognizance of any offence without the accused being committedto it for trial, inter alia, upon a police report of such facts.”

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The above narration would indicate that the power to extend the90 days period, indicated by the first proviso to Section 167(2) of theCrPC, up to a maximum of 180 days was vested with “the Court”. “TheCourt”, 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 ofGthe NIA Act. Hence, this Court held that the Special Court constitutedunder Section 22 of the NIA Act had exclusive jurisdiction over everyscheduled offence under the NIA Act investigated by the investigatingagency of the State.

45. The judgment in Bikramjit Singh (supra) has been cited inHanother three Judge Bench in M Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence[31]. In that case, the appellantwas arrested and remanded to judicial custody on 4 August 2018, foralleged offences punishable under the Narcotic Drugs and PsychotropicSubstances Act 1985[32]. After the completion of 180 days from the remandday (31 January 2019), an application for bail was filed on 1 February2019 under Section 167(2) of the CrPC before the Special Court forexclusive trial of cases under the NDPS Act. After the completion ofthe arguments of the appellant on the application for bail, the respondent-complainant filed an additional complaint on 1 February 2019, and soughtthe dismissal of the bail petition on the basis that the investigation wasnot complete and the charge-sheet had not been filed. The trial Courtallowed the application for bail but this was set aside by the High Court,since the additional complaint was filed on 1 February 2019 and theapplication for bail under Section 167(2) was not disposed of by the timethe additional complaint was filed. Justice MM Shantanagoudar, speakingfor the three Judge Bench, referred to the judgment in Bikramjit Singh(supra) and observed that so long as the application for the grant ofdefault bail was made on the expiry of the period of 90 days before acharge-sheet has filed, the right to default bail becomes complete. Hence,the Court held that so long as an application has been made for defaultbail on the expiry of the stated period (before time is further extended toa maximum of 180 days) default bail being an indefeasible right of theaccused under the first proviso to Section 167(2) of the CrPC kicks inand 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 theproviso to Section 167(2) he is deemed to have “availed of” orenforced his right to be released on default bail, accruing afterexpiry of the stipulated time-limit for investigation. Thus, if theaccused applies for bail under Section 167(2) CrPC read withSection 36-A(4), NDPS Act upon expiry of 180 days or theextended period, as the case may be, the court must release himon bail forthwith without any unnecessary delay after gettingnecessary information from the Public Prosecutor, as mentionedsupra. Such prompt action will restrict the prosecution fromfrustrating the legislative mandate to release the accused on bailin case of default by the investigating agency.

31 (2021) 2 SCC 485

32 “NDPS Act”

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A25.2. The right to be released on default bail continues to remainenforceable if the accused has applied for such bail, notwithstandingpendency of the bail application; or subsequent filing of the charge-sheet or a report seeking extension of time by the prosecutionbefore the court; or filing of the charge-sheet during theinterregnum when challenge to the rejection of the bail applicationBis pending before a higher court.

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25.3. However, where the accused fails to apply for default bailwhen the right accrues to him, and subsequently a charge-sheet,additional complaint or a report seeking extension of time ispreferred before the Magistrate, the right to default bail would beCextinguished. The Magistrate would be at liberty to take cognizanceof the case or grant further time for completion of the investigation,as the case may be, though the accused may still be released onbail under other provisions of the CrPC.

25.4. Notwithstanding the order of default bail passed by the court,Dby virtue of Explanation I to Section 167(2), the actual release ofthe accused from custody is contingent on the directions passedby the competent court granting bail. If the accused fails to furnishbail and/or comply with the terms and conditions of the bail orderwithin the time stipulated by the court, his continued detention inEcustody is valid.”

46. The judgment in Bikramjit Singh (supra) has been followedin another recent decision by a three Judge Bench in Sadique v. Stateof Madhya Pradesh[33], where it was held that the appellants were entitledto default bail since the CJM, Bhopal had no jurisdiction to extend timeFfor investigation under Section 43D(2)(b) of the UAPA, as suchjurisdiction vested only with Special Courts. In Fakhrey Alam v. Stateof Uttar Pradesh[34], a two Judge Bench of this Court distinguishedBikramjit Singh (supra) in a case where the CJM had granted 180days for the filing of charge-sheet by accepting the submission that “inState of Uttar Pradesh the competent Court was of the special ChiefGJudicial Magistrate and it is only recently now about a month back thatspecial Courts had been notified” and by holding that “the situation in theState of Uttar Pradesh is different and it is not as if there were anynotified special courts in existence”.

33 Criminal Appeal No 963 of 2021, order dated 7 September 2021H34 2021 SCC OnLine SC 532

47. In the present case, the appellants were arrested on 14 July2016. The charge-sheet was submitted on 7 October 2016. The 90 daysperiod of remand would have been completed on 14 October 2016.Applying the principles enunciated in Bikramjit Singh (supra) (in relationto the power of the CJM to extend investigation upto 180 days) to thepresent case (in relation to the jurisdiction of the CJM in relation toremand and committal of case to trial), the first consideration would bewhether there existed a Special Court under Section 22 of the NIA Actto divest the CJM, Nanded of its jurisdiction. The appellants have producedbefore us various notifications issued by the Government of Maharashtradesignating Special Courts under Section 22 for trial of schedules offencesunder the NIA Act. The earliest of those notifications is dated 13 April2017. In its counter-affidavit before this Court, the State of Maharashtrahas stated that:

“8…the present Crime No. i.e. 08/2016 has been registered againstaccused/Petitioner on 14/07/2016. As per record of the office ofdeponent it appears that till the date of registration of Crime No.08/2016, the State Government has not established Special Courtunder 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 SpecialCourts in the State of Maharashtra designated under Section 22 of theNIA Act (since the investigation was being conducted by the ATSNanded, which had the jurisdiction over the case).

48. We have already held that the continuance of the investigationby the ATS Nanded in terms of Section 6(7) of the NIA Act, till theinvestigation had been taken up by the NIA Mumbai, was legitimate. Areading of Section 10 of the NIA Act indicates that there is no embargoon the State Investigating Agency to investigate a scheduled offence,which would include offences under the UAPA. Consequently, till theinvestigation was taken up by the NIA Mumbai, the ATS Nanded wasacting within jurisdiction in investigating the offence and filing the charge-sheet in the present case. Both of these took place prior to 8 December2016, which is when the investigation was handed over to the NIAMumbai. Admittedly, once the NIA Mumbai took up the investigation,the Special Court designated under Section 11 of the NIA Act wouldhave sole jurisdiction to try the case. In the present case, the NIA Mumbaitook up the investigation only on 8 December 2016 after receiving the AB

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Arecords from the ATS Nanded, and thereupon it filed an application fortransfer 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. TheBGovernment of Maharashtra in exercise of powers conferred by Section11 read with Section 185 of the CrPC issued a notification dated 26August 2016 designating the CJM, Nanded as the remand court and theASJ, Nanded as a Special Court for the trial of cases filed by the ATSNanded. There is no challenge to the notification dated 26 August 2016.Inthis backdrop, the CJM, Nanded has been designated as a Court ofCremand and the ASJ, Nanded as a Special Court under the CrPC for thetrial of cases filed by the ATS Nanded. Hence, they both had thejurisdiction to entertain the present case under the UAPA till the NIAMumbai took over the investigation on 8 December 2016, and sought atransfer of the case to the NIA Special Court at Mumbai constitutedDunder Section 11 of the NIA Act.

F Conclusion

50. For the above reasons, we affirm the judgment and order ofthe High Court dated 5 July 2018. We hold that, in accordance withSection 6(7), the ATS Nanded was not barred from continuing with itsEinvestigation till the NIA Mumbai actually took up the investigation.Further, we hold that the CJM, Nanded could have committed the caseto trial before the ASJ, Nanded upon the filing of charge-sheet by theATS Nanded since they were the designated Courts for the ATS Nandedand no Special Court had been designated by the Government ofMaharashtra under Section 22 of the NIA Act.F

51. The appeals shall, accordingly, stand dismissed.

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

GDevika Gujral

Appeals dismissed.

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