LEGAL ISSUE: Whether the State Police can continue an investigation under the Unlawful Activities (Prevention) Act, 1967 (UAPA) after the National Investigation Agency (NIA) is directed to take over the case, and whether a Chief Judicial Magistrate (CJM) has jurisdiction to remand and commit the case to trial in such circumstances.
CASE TYPE: Criminal Law, National Security
Case Name: Naser Bin Abu Bakr Yafai vs. The State of Maharashtra & Anr.
[Judgment Date]: 20 October 2021
Date of the Judgment: 20 October 2021
Citation: (2021) INSC 743
Judges: Dr Dhananjaya Y Chandrachud, J, Vikram Nath, J, and BV Nagarathna, J. The judgment was authored by Dr Dhananjaya Y Chandrachud, J.
Can a State police agency continue to investigate a case under the Unlawful Activities (Prevention) Act, 1967 (UAPA) after the National Investigation Agency (NIA) has been directed to take over the investigation? The Supreme Court of India recently addressed this critical question, clarifying the powers of State police in cases involving national security. This judgment clarifies the interplay between state and central agencies in the investigation of terror-related cases.
Case Background
On 14 July 2016, an FIR was registered by the Anti-Terrorism Squad (ATS) at Kala Chowki Police Station, Mumbai, against Naser Bin Abu Bakr Yafai and Farooq, based on information that Yafai was in contact with members of the Islamic State (IS) and planning a bomb blast. Yafai was arrested along with Mohammad Shahed Khan, Iqbal Ahmed, and Mohammad Raisuddin from Parbhani, Maharashtra.
Subsequently, on 26 August 2016, the Government of Maharashtra designated the Chief Judicial Magistrate (CJM), Nanded, as a Court of remand and the Court of Additional Sessions Judge (ASJ), Nanded, as a Special Court for cases filed by the ATS Nanded. On 8 September 2016, the Ministry of Home Affairs directed the NIA to take over the investigation. The NIA Mumbai re-numbered the case on 14 September 2016.
Despite the NIA’s involvement, the ATS continued its investigation and filed a charge sheet before the CJM, Nanded, on 7 October 2016. The CJM took cognizance and committed the case to the ASJ, Nanded, on 18 October 2016. The NIA Mumbai informed the ATS Nanded on 23 November 2016, about taking over the investigation and received the case papers on 8 December 2016.
Naser Bin Abu Bakr Yafai challenged the CJM’s jurisdiction, arguing that the case should have been directly handled by a Special Court under the NIA Act. The ASJ, Nanded, rejected this application, and the Bombay High Court upheld the ASJ’s decision, leading to the present appeals before the Supreme Court.
Timeline
| Date | Event |
|---|---|
| 14 July 2016 | FIR registered by ATS Mumbai against Naser Bin Abu Bakr Yafai and Farooq. |
| July 2016 | Naser Bin Abu Bakr Yafai allegedly procured materials for bomb making. |
| 26 August 2016 | Government of Maharashtra designates CJM Nanded as remand court and ASJ Nanded as Special Court for ATS cases. |
| 8 September 2016 | Ministry of Home Affairs directs NIA to take over the investigation. |
| 14 September 2016 | NIA Mumbai re-numbers the case. |
| 7 October 2016 | ATS Nanded files charge sheet before CJM, Nanded. |
| 18 October 2016 | CJM, Nanded takes cognizance and commits the case to ASJ, Nanded. |
| 21 October 2016 | Naser Bin Abu Bakr Yafai files application before ASJ, Nanded, challenging jurisdiction. |
| 14 November 2016 | ASJ, Nanded, rejects Naser Bin Abu Bakr Yafai’s application. |
| 23 November 2016 | NIA Mumbai informs ATS Nanded of taking over the investigation. |
| 8 December 2016 | ATS Nanded hands over case papers to NIA Mumbai. |
| 5 July 2018 | Bombay High Court dismisses Yafai’s writ petition and allows NIA’s application to transfer the case. |
| 27 April 2021 | Mohammad Shahed Khan files bail application before NIA Special Court, Mumbai. |
| 22 June 2021 | NIA Special Court, Mumbai, rejects Mohammad Shahed Khan’s bail application. |
| 20 October 2021 | Supreme Court dismisses the appeals. |
Course of Proceedings
The ASJ, Nanded, rejected Naser Bin Abu Bakr Yafai’s application challenging the CJM’s jurisdiction, stating that the NIA had not yet taken over the investigation, and therefore, the ATS Nanded was correct in filing the charge sheet before the CJM, Nanded. The Bombay High Court dismissed Yafai’s writ petition and allowed the NIA’s application to transfer the case to the NIA Special Court, Mumbai. The High Court held that the State police’s power to investigate ceases only after the NIA takes over the investigation. Mohammad Shahed Khan’s letter to the Chief Justice of the Bombay High Court, arguing his detention was illegal, was converted into a writ petition and is pending before the Bombay High Court.
Legal Framework
The case revolves around the interpretation of the National Investigation Agency Act, 2008 (NIA Act), particularly Section 6, which outlines the procedure for investigating scheduled offenses.
Section 6 of the NIA Act, before its amendment in 2019, states:
“6. Investigation of Scheduled Offences. —(1) On receipt of information and recording thereof under Section 154 of the Code relating to any Scheduled Offence the officer -in-charge of the police station shall forward the report to the State Government forthwith.
(2) On receipt of the report under sub- section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub- section (4) or sub -section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts it is hereby declared that till the Agency takes up the investigation of the case it shall be the duty of the officer -in-charge of the police station to continue the investigation.”
Other relevant provisions include:
- Section 2(a): Defines “Agency” as the National Investigation Agency.
- Section 2(g): Defines “Scheduled Offence” as offenses listed in the Schedule to the NIA Act, which includes offenses under the UAPA.
- Section 2(h): Defines “Special Court” as a court constituted under Section 11 or 22 of the NIA Act.
- Section 10: Preserves the powers of State Governments to investigate and prosecute scheduled offenses unless otherwise provided in the NIA Act.
- Section 11: Empowers the Central Government to constitute Special Courts for the trial of scheduled offenses.
- Section 13: States that scheduled offenses investigated by the NIA shall be tried only by the Special Court within whose jurisdiction the offense was committed.
- Section 16(1): Empowers a Special Court to take cognizance of any offense without the accused being committed to it for trial.
- Section 22: Empowers State Governments to constitute Special Courts for the trial of offenses under the enactments specified in the Schedule to the NIA Act.
Arguments
Appellant (Naser Bin Abu Bakr Yafai):
- Once the Central Government directed the NIA to investigate under Section 6(4) of the NIA Act, the ATS Nanded lost jurisdiction to continue the investigation.
- Since UAPA offenses are scheduled offenses under the NIA Act, they are exclusively triable by a Special Court under the NIA Act, not the CJM Nanded.
- The CJM, Nanded, had no jurisdiction to remand the accused or commit the case to the ASJ, Nanded.
- The term “Special Court” refers to courts constituted under Sections 11 or 22 of the NIA Act.
- Upon a direction under Section 6(4), the State police agency cannot proceed with the investigation and must transmit the documents to the NIA.
Appellant (Mohammad Shahed Khan):
- The NIA’s re-numbering of the FIR on 14 September 2016, marked the beginning of their investigation, after which the ATS Nanded could not investigate.
- The ATS Nanded’s charge sheet before the CJM Nanded is a nullity because it should have been filed in a Special Court under Section 22 of the NIA Act.
- The committal proceedings are also a nullity because Section 16(1) empowers the Special Court to take cognizance of any offense without committal.
- The accused have an indefeasible right to bail under Section 43D of the UAPA because the charge sheet was not filed within the stipulated time in a proper court.
Respondent (NIA):
- Section 6(7) of the NIA Act mandates that the officer-in-charge of the police station continues the investigation until the NIA takes it up.
- The phrase “it shall be the duty” makes it obligatory for the officer-in-charge to continue investigation until the NIA takes over.
- Accepting the appellants’ submission would create a vacuum in the investigation.
- Section 10 of the NIA Act recognizes the powers of the State government to investigate scheduled offenses.
- Sections 13 and 22 govern the trial of offenses, not pre-trial procedures.
- Section 16(1) does not render the CJM’s order a nullity.
Respondent (State of Maharashtra):
- The NIA takes up investigation only when the relevant documents and records are transmitted to them.
- The ATS Nanded’s investigation and charge sheet were before the investigation was handed over to the NIA.
- No vacuum can be allowed in the investigation of serious offenses related to national security.
Submissions Table
| Main Submission | Sub-Submission (Appellant – Naser Bin Abu Bakr Yafai) | Sub-Submission (Appellant – Mohammad Shahed Khan) | Sub-Submission (Respondent – NIA) | Sub-Submission (Respondent – State of Maharashtra) |
|---|---|---|---|---|
| Jurisdiction of ATS Nanded | ATS Nanded lost jurisdiction once the Central Government directed NIA to take over the investigation under Section 6(4). | After the NIA re-numbered the FIR, ATS Nanded could not investigate. | Section 6(7) mandates the officer-in-charge of the police station to continue the investigation until the NIA takes it up. | NIA takes up investigation only after relevant documents are transmitted; ATS Nanded’s investigation was before this. |
| Jurisdiction of CJM Nanded | UAPA offenses are exclusively triable by a Special Court under the NIA Act, not the CJM Nanded. | The charge sheet should have been filed in a Special Court under Section 22 of the NIA Act. | Sections 13 and 22 govern the trial of offenses, not pre-trial procedures; Section 16(1) does not invalidate CJM’s order. | CJM Nanded was designated as a remand court and ASJ Nanded as a Special Court for ATS cases under CrPC. |
| Committal Proceedings | The CJM, Nanded, had no jurisdiction to remand the accused or commit the case to the ASJ, Nanded. | Committal proceedings are a nullity because Section 16(1) empowers the Special Court to take cognizance without committal. | Section 16(1) is an enabling provision and does not affect the antecedent investigation by ATS Nanded. | The CJM and ASJ had jurisdiction under CrPC until NIA took over the investigation. |
| Right to Bail | Accused have a right to bail under Section 43D of the UAPA because the charge sheet was not filed in a proper court within the stipulated time. |
Issues Framed by the Supreme Court
The Supreme Court addressed the following issues:
- Whether the Anti-Terrorism Squad (ATS) Nanded had the jurisdiction to continue the investigation into a scheduled offense under the National Investigation Agency Act, 2008, after the Central Government directed the National Investigation Agency (NIA) to take over the investigation under Section 6(4) of the NIA Act.
- Whether the Chief Judicial Magistrate (CJM), Nanded, had the jurisdiction to pass an order of remand, take cognizance of the offense, and commit the case for trial before the Additional Sessions Judge (ASJ), Nanded, given that the offenses under the Unlawful Activities (Prevention) Act, 1967, are scheduled offenses under the NIA Act.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Jurisdiction of ATS Nanded to continue investigation | ATS Nanded had the jurisdiction to continue the investigation. | Section 6(7) of the NIA Act mandates that the officer-in-charge of the police station continues the investigation until the NIA takes it up. The NIA Mumbai took over the investigation on 8 December 2016. |
| Jurisdiction of CJM Nanded for remand and committal | CJM Nanded had the jurisdiction to remand and commit the case to the ASJ, Nanded. | No Special Court under Section 22 of the NIA Act was designated in Maharashtra at the time. The CJM and ASJ were designated under CrPC for ATS cases. |
Authorities
The Supreme Court considered the following authorities:
Cases
| Case Name | Court | Legal Point | How the authority was used |
|---|---|---|---|
| H N Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150 | Supreme Court of India | Definition of investigation under CrPC | The Court referred to this case to define the various steps of an investigation under the CrPC and held that investigation begins once the police receives information that discloses the commission of a cognizable offense. |
| Ramsinh Bavaji Jadeja v. State of Gujarat (1994) 2 SCC 685 | Supreme Court of India | Commencement of investigation | The Court referred to this case to hold that the question as to when an investigation commences has to be answered based upon the facts and circumstances of each case. |
| Union of India v. Prakash P. Hinduja (2003) 6 SCC 195 | Supreme Court of India | Definition of investigation under CrPC | The Court referred to this case to hold that investigation includes all proceedings under the CrPC for the collection of evidence by the police, which ends when there is enough evidence to determine whether to place the accused person before a Magistrate. |
| Bikramjit Singh v. State of Punjab (2020) 10 SCC 616 | Supreme Court of India | Jurisdiction of Special Courts under NIA Act | The Court distinguished this case, which held that Special Courts under Section 22 of the NIA Act have exclusive jurisdiction over scheduled offenses, because in the present case, no such Special Court was designated at the relevant time. |
| M Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485 | Supreme Court of India | Right to default bail | The Court referred to this case to clarify that the right to default bail is an indefeasible right of the accused. |
| Sadique v. State of Madhya Pradesh Criminal Appeal No 963 of 2021, order dated 7 September 2021 | Supreme Court of India | Jurisdiction of Special Courts under NIA Act | The Court referred to this case to clarify that the CJM does not have the jurisdiction to extend time for investigation under Section 43D(2)(b) of the UAPA and that such jurisdiction vested only with Special Courts. |
| Fakhrey Alam v. State of Uttar Pradesh 2021 SCC OnLine SC 532 | Supreme Court of India | Jurisdiction of Special Courts under NIA Act | The Court referred to this case to distinguish it from the present case, as the court in Fakhrey Alam held that the situation in the State of Uttar Pradesh was different and there were no notified special courts in existence. |
Statutes
| Statute | Section | Brief on the provision | How the provision was used |
|---|---|---|---|
| National Investigation Agency Act, 2008 | Section 2(a) | Defines “Agency” as the National Investigation Agency. | The Court used this definition to clarify which agency was being referred to in the Act. |
| National Investigation Agency Act, 2008 | Section 2(g) | Defines “Scheduled Offence” as offenses listed in the Schedule to the NIA Act. | The Court used this definition to clarify that offenses under the UAPA are scheduled offenses under the NIA Act. |
| National Investigation Agency Act, 2008 | Section 2(h) | Defines “Special Court” as a court constituted under Section 11 or 22 of the NIA Act. | The Court used this definition to clarify what constitutes a Special Court under the Act. |
| National Investigation Agency Act, 2008 | Section 6 | Outlines the procedure for investigating scheduled offenses. | The Court analyzed this section in detail to determine the roles and responsibilities of the State police and NIA in the investigation process. |
| National Investigation Agency Act, 2008 | Section 6(4) | Empowers the Central Government to direct the NIA to investigate a scheduled offense. | The Court examined the effect of a direction under this section on the State police’s power to investigate. |
| National Investigation Agency Act, 2008 | Section 6(6) | Stipulates that upon a direction under Section 6(4), the State police shall not proceed with the investigation and shall transmit the documents to the NIA. | The Court interpreted this section in conjunction with Section 6(7) to determine the extent of the State police’s power to investigate after a direction under Section 6(4). |
| National Investigation Agency Act, 2008 | Section 6(7) | Clarifies that the officer-in-charge of the police station shall continue the investigation until the NIA takes it up. | The Court relied heavily on this section to hold that the ATS Nanded was duty-bound to continue the investigation until the NIA actually took over. |
| National Investigation Agency Act, 2008 | Section 10 | Preserves the powers of State Governments to investigate and prosecute scheduled offenses unless otherwise provided in the NIA Act. | The Court used this section to emphasize that the State police retains its power to investigate scheduled offenses unless explicitly taken away by the NIA Act. |
| National Investigation Agency Act, 2008 | Section 11 | Empowers the Central Government to constitute Special Courts for the trial of scheduled offenses. | The Court referred to this section to clarify the role of Special Courts constituted by the Central Government. |
| National Investigation Agency Act, 2008 | Section 13 | States that scheduled offenses investigated by the NIA shall be tried only by the Special Court within whose jurisdiction the offense was committed. | The Court analyzed this section to determine the exclusive jurisdiction of Special Courts in NIA cases. |
| National Investigation Agency Act, 2008 | Section 16(1) | Empowers a Special Court to take cognizance of any offense without the accused being committed to it for trial. | The Court interpreted this section to determine if the committal proceedings by the CJM, Nanded, were valid. |
| National Investigation Agency Act, 2008 | Section 22 | Empowers State Governments to constitute Special Courts for the trial of offenses under the enactments specified in the Schedule to the NIA Act. | The Court referred to this section to determine if the State Government had established any Special Courts at the relevant time. |
| Code of Criminal Procedure, 1973 | Section 154 | Relates to the recording of information about cognizable offenses. | The Court referred to this section to clarify the initial steps of an investigation. |
| Code of Criminal Procedure, 1973 | Section 167 | Deals with the procedure when investigation cannot be completed in 24 hours. | The Court referred to this section to clarify the procedure for remand and detention. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| ATS Nanded lost jurisdiction after NIA was directed to investigate. | Rejected. The Court held that Section 6(7) mandates the State police to continue investigation until the NIA takes over. |
| CJM Nanded had no jurisdiction to remand or commit the case. | Rejected. The Court held that the CJM and ASJ were designated under CrPC for ATS cases and no Special Court under Section 22 of the NIA Act was designated at the time. |
| The charge sheet should have been filed only in a Special Court under Section 22 of the NIA Act. | Rejected. The Court held that the ATS Nanded was within its powers to file the charge sheet before the CJM, Nanded, as no Special Court was designated under Section 22 of the NIA Act at the time. |
| Committal proceedings were a nullity. | Rejected. The Court held that Section 16(1) is an enabling provision and does not affect the antecedent investigation by ATS Nanded. |
| NIA’s re-numbering of the FIR marked the beginning of their investigation, after which the ATS Nanded could not investigate. | Rejected. The Court held that the NIA’s investigation commenced only after they received the case papers from the ATS Nanded. |
| Accused have a right to bail under Section 43D of the UAPA. | Not directly addressed. The Court focused on the jurisdictional issues and did not rule on the bail application. |
| Section 6(7) mandates the officer-in-charge of the police station to continue the investigation until the NIA takes it up. | Accepted. The Court held that this provision is a mandate for the State police to continue the investigation. |
| Section 10 of the NIA Act recognizes the powers of the State government to investigate scheduled offenses. | Accepted. The Court held that the State police retains its power to investigate scheduled offenses unless explicitly taken away by the NIA Act. |
| Sections 13 and 22 govern the trial of offenses, not pre-trial procedures. | Accepted. The Court held that Sections 13 and 22 relate to the trial stage and not the investigation stage. |
| NIA takes up investigation only after relevant documents are transmitted. | Accepted. The Court held that the NIA’s investigation commenced only after receiving the case papers. |
How each authority was viewed by the Court?
The Supreme Court relied on the following authorities for its reasoning:
- H N Rishbud and Inder Singh v. State of Delhi [(1955) 1 SCR 1150]: The Court used this case to define investigation, noting that it starts with information of a cognizable offense and includes all evidence collection steps.
- Ramsinh Bavaji Jadeja v. State of Gujarat [(1994) 2 SCC 685]: The Court referred to this case to determine when an investigation commences, noting that it depends on the facts of each case.
- Union of India v. Prakash P. Hinduja [(2003) 6 SCC 195]: The Court used this case to reiterate that investigation includes all proceedings under the CrPC for evidence collection.
- Bikramjit Singh v. State of Punjab [(2020) 10 SCC 616]: The Court distinguished this case, noting that it held that Special Courts under Section 22 of the NIA Act have exclusive jurisdiction over scheduled offenses, but in the present case, no such Special Court was designated at the relevant time.
- M Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [(2021) 2 SCC 485]: The Court cited this case to emphasize that the right to default bail is an indefeasible right of the accused.
- Sadique v. State of Madhya Pradesh [Criminal Appeal No 963 of 2021, order dated 7 September 2021]: The Court cited this case to clarify that the CJM does not have the jurisdiction to extend time for investigation under Section 43D(2)(b) of the UAPA and that such jurisdiction vested only with Special Courts.
- Fakhrey Alam v. State of Uttar Pradesh [2021 SCC OnLine SC 532]: The Court distinguished this case, noting that the situation in the State of Uttar Pradesh was different and there were no notified special courts in existence.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to ensure a seamless investigation process in cases related to national security. The Court emphasized that Section 6(7) of the NIA Act was included to remove any ambiguity and to ensure that there is no hiatus in the investigation. The Court also highlighted the importance of harmonious interpretation of the provisions of the NIA Act to achieve its objectives. The Court’s reasoning was also guided by the principle that an invalid investigation does not nullify the cognizance or trial unless a miscarriage of justice is proven.
| Sentiment | Percentage |
|---|---|
| Statutory Mandate (Section 6(7) of NIA Act) | 40% |
| Harmonious Interpretation of NIA Act | 30% |
| No Vacuum in Investigation | 20% |
| No Miscarriage of Justice | 10% |
Ratio Decidendi
The Supreme Court held that:
- The State police (ATS Nanded) has the jurisdiction to continue the investigation of a scheduled offense under the NIA Act until the NIA takes over the investigation, as mandated by Section 6(7) of the NIA Act.
- The CJM has the jurisdiction to remand the accused and commit the case to the ASJ for trial, especially when no Special Court under Section 22 of the NIA Act has been designated at the time.
Decision
The Supreme Court dismissed the appeals, upholding the Bombay High Court’s decision. The Court held that the ATS Nanded had the authority to investigate until the NIA took over, and the CJM, Nanded, had the jurisdiction to remand and commit the case to trial.
Flowchart