SC says Maha ATS not barred from investigation till NIA took over probe

October 20, 2021 19:44

The Supreme Court on Wednesday upheld an order of the Bombay high court which held that ATS Nanded was not barred from continuing with its investigation till the NIA Mumbai took up the probe in connection with a case of arrest of a suspected ISIS operative in Maharashtra.

The top court was hearing appeals filed by Naser Bin Abu Bakr Yafai who was arrested by Maharashtra ATS from Parbhani district in 2016 and charged under the Unlawful Activities (Prevention) Act.

A bench headed by D Y Chandrachud said the continuance of the investigation by the ATS Nanded in terms of Section 6(7) of the NIA Act, till the investigation had been taken up by the NIA Mumbai, was legitimate.

The apex court said between the issuance of a direction and the actual taking up of the investigation by the NIA, there should be no hiatus in the investigation to the detriment of the interests of national security.

It said an investigation commences upon the receipt of information by the police which discloses the commission of a cognisable offence.

"However, the mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced.

"Rather, the investigation commences when the police take the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information," the bench also comprising Justices Vikram Nath and B V Nagarathna said while clarifying that in this case, ATS Nanded had a duty to continue with the investigation till the NIA Mumbai took over the investigation from it.

The top court said that in the present case, the investigation was initiated by the ATS Nanded following the registration of the FIR on July 14, 2016, on receipt of source information that Yafai was in contact over the internet with members of IS/ISIS/ISIL/Daesh and this led to the arrest of four accused persons.

Thereafter, considering the gravity of the offence involved, the Central government directed the NIA Mumbai to take up further investigation of the case on September 8, 2016, exercising its powers under Section 6(4) of the NIA Act, the apex court said.

"The NIA Mumbai re-numbered the case on September 14, 2016. However, the NIA Mumbai intimated the ATS Nanded to transfer the case records to them on November 23, 2016, and it was only on December 8, 2016, that the records were handed over to the NIA Mumbai by the ATS Nanded.

"ATS Nanded filed the charge sheet before the CJM, Nanded on October 7, 2016 (which was prior to even the letter of the NIA Mumbai dated 23 November 2016 for the handing over of the case records). Likewise, the CJM, Nanded took cognizance of the offence and committed the case to trial before the ASJ, Nanded on 18 October 2016," the bench said.

The top court said that mere renumbering of the case filed by the NIA Mumbai did not take away the power of the ATS Nanded to continue the investigation.

ATS Nanded could continue the investigation till the records of the case were received by the NIA Mumbai and hence, the investigation conducted by the ATS Nanded before this was within the mandate of sub-Section (7) of Section 6 of the NIA Act.

"The said provision is clarificatory in nature so as to remove any doubt about the duty of the officer-in-charge of the police station to continue the investigation till the 'Agency', i.e., the NIA Mumbai in the instant case took up the investigation on receipt of the case papers.

"Therefore, the continuation of the investigation, and the filing of the charge-sheet upon its conclusion, by the ATS Nanded was in terms of the statutory mandate under Section 6(7) of the NIA Act," the bench said.

The apex court also said the CJM, Nanded had the jurisdiction for remand and committal to the trial of the accused as there were no Special Courts in Maharashtra designated under the NIA Act.

It said that as per Section 10 of the NIA Act there is no embargo on the State Investigating Agency to investigate a scheduled offence, which would include offences under the UAPA.

"Consequently, till the investigation was taken up by the NIA Mumbai, the ATS Nanded was acting within the jurisdiction in investigating the offence and filing the charge-sheet in the present case," the bench said.

Yafai had contended that the offences under the UAPA are scheduled offences under the NIA Act, and hence, the CJM, Nanded had no jurisdiction to pass an order on remand, to take cognizance and pass an order of committal of the proceedings to the ASJ, Nanded since it was not a 'Court' established under the NIA Act.

According to the police, the accused had allegedly planned a bomb blast in Nanded city in the month of Ramzan and was to receive some weapons from Syria.

Yafai had come in contact with the terror outfit through the Internet and had allegedly renewed his passport to visit Syria.

The high court had observed that the power of investigation by the police officer of the State government would cease only after the NIA takes over the investigation of a scheduled offence.

The high court also held that the ASJ, Nanded had jurisdiction under the CrPC to try the offences under the UAPA, even though they were scheduled offences under the NIA Act until the investigation was entrusted to and taken over by the NIA, after which the Special Court constituted under Section 11 of the NIA Act would exclusively try such scheduled offences.

The high court had held that the ASJ, Nanded had jurisdiction under the CrPC to try the offences under the UAPA, even though they were scheduled offences under the NIA Act until the investigation was entrusted to and taken over by the NIA, after which the Special Court constituted under Section 11 of the NIA Act would exclusively try such scheduled offences.

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