# NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA & ANR

- **Citation:** [2021] 10 S.C.R. 353
- **Court:** Supreme Court of India
- **Decided:** 2021-10-20
- **Case number:** Criminal Appeal No. 1165 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/naser-bin-abu-bakr-yafai-v-the-state-of-maharashtra-anr-34648
- **Pages:** 40

## Headnote

National Investigation Agency Act, 2008: s.6 - Investigation
by NIA - If the Central government is of the opinion that the offence
is a scheduled offence and it is a fit case to be investigated by the
NIA, it shall direct the NIA to investigate the offence - Upon the
issuance of a direction by the Central government, two consequences
emanate under sub-Section (6) of s.6: (a) the State government and
any police officer of the State government investigating the offence
shall not proceed with the investigation; and (b) the relevant
documents and records must be transmitted to the NIA forthwith -
Sub-Section (7) of s.6 contains a declaration that till the NIA "takes
up the investigation of the case", it shall be the duty of the office
in-charge of the police station to continue the investigation - The
provisions of sub-Sections (6) and (7) of s.6 must be read together
and in harmony in order to fulfill the purpose and intent of the
Parliament in a holistic manner - While enacting the provisions of
sub-Section (7) of s.6, the Parliament was conscious of the fact that
an interlude may occur between the date of the issuance of a
direction and the actual taking up of the investigation by the NIA -
However, between the issuance of a direction under sub-Sections
(4) or (5) of s.6 and the actual taking up of the investigation by the
NIA, there should be no hiatus in the investigation to the detriment
of the interests of national security involved in the enactment of the
legislation.
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 the
registration of the FIR on 14 July 2016, on receipt of source
information that appellant-N was in contact over the internet with
members of IS/ISIS/ISIL/Daesh - This led to arrest of four accused
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persons, including appellant-N and one 'M' - Thereafter, considering
the gravity of the offence involved, the Central government directed
the NIA Mumbai to take up further investigation of the case on 8
September 2016, exercising its powers under 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 the
case records to them on 23 November 2016, and it was only on 8
December 2016 that the records were handed over to the NIA
Mumbai by the ATS Nanded - Meanwhile, ATS Nanded had filed
the charge-sheet before the CJM, Nanded on 7 October 2016 (which
was prior to even the letter of the NIA Mumbai dated 23 November
2016 for the handing over of the case records) - Likewise, the CJM,
Nanded took cognizance of the offence and committed the case to
trial before the ASJ, Nanded on 18 October 2016 - While the NIA
Mumbai may have re-numbered the case file on 14 September 2016,
it could not have taken the initial step of its investigation into the
case till it had access to the case papers, which it only received
from the ATS Nanded on 8 December 2016 - Thus, the mere
renumbering of the case filed by the NIA Mumbai did not take away
the power of the ATS Nanded to continue the investigation - The
said authority could do so till the records of the case were received
by the NIA Mumbai - Hence, the investigation conducted by the
ATS Nanded prior to this was within the mandate of sub-Section (7)
of s.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
s.6(7) of the NIA Act.
National Investigation Agency Act, 2008: ss.10, 11 -
Jurisdiction of CJM Nanded for remand

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[2021] 10 S.C.R. 353
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 NATH
AND B. V. NAGARATHNA, JJ.]
National Investigation Agency Act, 2008: s.6 - Investigation
by NIA - If the Central government is of the opinion that the offence
is a scheduled offence and it is a fit case to be investigated by the
NIA, it shall direct the NIA to investigate the offence - Upon the
issuance of a direction by the Central government, two consequences
emanate under sub-Section (6) of s.6: (a) the State government and
any police officer of the State government investigating the offence
shall not proceed with the investigation; and (b) the relevant
documents and records must be transmitted to the NIA forthwith -
Sub-Section (7) of s.6 contains a declaration that till the NIA "takes
up the investigation of the case", it shall be the duty of the office
in-charge of the police station to continue the investigation - The
provisions of sub-Sections (6) and (7) of s.6 must be read together
and in harmony in order to fulfill the purpose and intent of the
Parliament in a holistic manner - While enacting the provisions of
sub-Section (7) of s.6, the Parliament was conscious of the fact that
an interlude may occur between the date of the issuance of a
direction and the actual taking up of the investigation by the NIA -
However, between the issuance of a direction under sub-Sections
(4) or (5) of s.6 and the actual taking up of the investigation by the
NIA, there should be no hiatus in the investigation to the detriment
of the interests of national security involved in the enactment of the
legislation.
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 the
registration of the FIR on 14 July 2016, on receipt of source
information that appellant-N was in contact over the internet with
members of IS/ISIS/ISIL/Daesh - This led to arrest of four accused
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persons, including appellant-N and one 'M' - Thereafter, considering
the gravity of the offence involved, the Central government directed
the NIA Mumbai to take up further investigation of the case on 8
September 2016, exercising its powers under 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 the
case records to them on 23 November 2016, and it was only on 8
December 2016 that the records were handed over to the NIA
Mumbai by the ATS Nanded - Meanwhile, ATS Nanded had filed
the charge-sheet before the CJM, Nanded on 7 October 2016 (which
was prior to even the letter of the NIA Mumbai dated 23 November
2016 for the handing over of the case records) - Likewise, the CJM,
Nanded took cognizance of the offence and committed the case to
trial before the ASJ, Nanded on 18 October 2016 - While the NIA
Mumbai may have re-numbered the case file on 14 September 2016,
it could not have taken the initial step of its investigation into the
case till it had access to the case papers, which it only received
from the ATS Nanded on 8 December 2016 - Thus, the mere
renumbering of the case filed by the NIA Mumbai did not take away
the power of the ATS Nanded to continue the investigation - The
said authority could do so till the records of the case were received
by the NIA Mumbai - Hence, the investigation conducted by the
ATS Nanded prior to this was within the mandate of sub-Section (7)
of s.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
s.6(7) of the NIA Act.
National Investigation Agency Act, 2008: ss.10, 11 -
Jurisdiction of CJM Nanded for remand and committal to trial - A
reading of s.10 of the NIA Act indicates that there is no embargo on
the State Investigating Agency to investigate a scheduled offence,
which would include offences under the UAPA - Consequently, till
the investigation was taken up by the NIA Mumbai, the ATS Nanded
was acting within jurisdiction in investigating the offence and filing
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the charge-sheet in the instant case - NIA Mumbai took up the
investigation only on 8 December 2016 after receiving the records
from the ATS Nanded, and thereupon it filed an application for
transfer of the case from the ASJ, Nanded to the NIA Special Court,
Mumbai constituted under s.11 of the NIA Act - However, till the
NIA Mumbai took over the investigation, jurisdiction would reside
with a Court which ordinarily had it - The Government of
Maharashtra in exercise of powers conferred by s.11 read with s.185
of the CrPC had issued a notification dated 26 August 2016
designating the CJM, Nanded as the remand court and the ASJ,
Nanded as a Special Court for the trial of cases filed by the ATS
Nanded - There was no challenge to the said notification - In this
backdrop, the CJM, Nanded was designated as a Court of remand
and the ASJ, Nanded as a Special Court under the CrPC for the
trial of cases filed by the ATS Nanded - Hence, they both had the
jurisdiction to entertain the instant case under the UAPA till the
NIA Mumbai took over the investigation on 8 December 2016, and
sought a transfer of the case to the NIA Special Court at Mumbai
constituted under 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 the
Schedule to the NIA Act. Section 2(h) defines the expression
"Special Court" to mean a Special Court constituted under Section
11, or as the case may be, under Section 22. Further, words and
expressions used but not defined in the NIA Act, but defined in
the CrPC, have the meaning assigned to them in the CrPC. The
NIA has been constituted as "a special agency" under Section
3(1) for the investigation and prosecution of offences under
the enactments specified in the Schedule to the NIA Act.
[Para 20][371-F-H; 372-A]
2. The salient aspects which emerge from the provisions
of Section 6 are: On the receipt and recording of information
under Section 154 of the CrPC relating to a scheduled offence
under the NIA Act, a report must be forwarded to the State
government by the officer in-charge of the police station (subNASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA
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Section (1) of Section 6); The State government on receipt of the
report under sub-Section (1) must, as expeditiously as possible,
forward it to the Central government (sub-Section (2) of Section
6); The purpose of the first and second steps embodied in subSections (1) and (2) of Section 6 is to enable the Central
government to make a decision in terms of sub-Section (3); Upon
receiving a report from the State government, the Central
government must determine within fifteen days, on the basis of
the information made available by the State government or
received from other sources, whether:(a) the offence is a
scheduled offence; and (b) if it is fit case to be investigated by the
NIA, having regard to the gravity of the offence and other relevant
factors (sub-Section (3) of Section 6); If the Central government
is of the opinion that the offence is a scheduled offence and it is a
fit case to be investigated by the NIA, it shall direct the NIA to
investigate the offence (sub-Section (4) of Section 6); An
overriding power is entrusted to the Central government (evident
from the incorporation of a non-obstante provision in sub-Section
(5)) to suo motu direct the NIA to investigate the offence if it is of
the opinion that: (a) a scheduled offence has been committed
under the NIA Act; and (b) that it is required to be investigated
by the NIA (sub-Section (5) of Section 6); Upon the issuance of a
direction by the Central government under sub-Sections (4) or
(5) of Section 6, two consequences emanate under sub-Section
(6) of Section 6: (a) the State government and any police officer
of the State government investigating the offence shall not
proceed with the investigation; and (b) the relevant documents
and records must be transmitted to the NIA forthwith (sub-Section
(6) of Section 6); By way of abundant caution ("for the removal of
doubts"), sub-Section (7) of Section 6 contains a declaration that
till the NIA "takes up the investigation of the case", it shall be
the duty of the office in-charge of the police station to continue
the investigation (sub-Section (7) of Section 6); The provisions
of sub-Sections(6) and (7) of Section 6 must be read together and
in harmony in order to fulfill the purpose and intent of the
Parliament in a holistic manner; The object and underlying
purpose of sub-Section (7) is to ensure that there is no hiatus in
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the course of the investigation. Hence, while sub-Section (6)
stipulates a two-fold requirement, that upon the issuance of a
direction under sub-Sections (4) or (5) of Section 6 neither the
State government nor the police shall proceed with the
investigation and must transmit the documents and records to
the NIA forthwith, sub-Section (7) imposes a statutory obligation
on the officer in-charge of the police station to continue the
investigation till the NIA actually takes over; While enacting the
provisions of sub-Section (7) of Section 6, the Parliament was
conscious of the fact that an interlude may occur between the
date of the issuance of a direction and the actual taking up of the
investigation by the NIA. However, between the issuance of a
direction under sub-Sections (4) or (5) of Section 6 and the actual
taking up of the investigation by the NIA, there should be no
hiatus in the investigation to the detriment of the interests of
national security involved in the enactment of the legislation.
[Para 22][373-F-H; 374-A-H; 375-A-D]
3. Section 7 indicates that while investigating an offence
under the NIA Act, the NIA may, having regard to the gravity of
the offence and other relevant factors, either: (i) Request the
State government to associate itself with the investigation, if it is
expedient to do so; or (ii) Transfer the case to the State
government for investigation and trial of the offence with the
previous approval of the Central government. Section 9 mandates
that the State government shall extend all assistance and
cooperation to the NIA for the investigation of scheduled
offences. The plain language of Section 10 indicates that unless
there is a contrary provision in the NIA Act, nothing contained in
it would affect the powers of the State government to investigate
and prosecute any scheduled offence or other offences under any
law for the time being in force. Hence, unless the power which is
entrusted to the State government by Section 10 to investigate
(and prosecute) a scheduled offence under the NIA Act is taken
away by a provision of the same statute, that power is preserved
by Section 10. Therefore, what emerges is that upon the issuance
of a direction under sub-Sections (4) and (5) of Section 6, the
State government and a police officer of the State government
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investigating the offence are not to proceed with the investigation
and have to forthwith transmit the documents and records to the
NIA (Section 6(6)) but equally, it is the duty of the officer
incharge of the police station to continue the investigation till
the NIA actually takes up the investigation of the case (Section
6(7)). In other words, the power of the officer in-charge of the
police station to continue with the investigation is denuded upon
the issuance of a direction under sub-Sections (4) or (5) of Section
6 and the NIA actually taking up the investigation of the case.
Thus, both the issuance of directions under sub-Sections (4) and
(5) of Section 6 and the NIA actually taking up the investigation
of the case would result in the power of the officer in-charge of
the police station being denuded. Until then, the power of the
State government to investigate and prosecute any scheduled
offence, by virtue of the provisions of Section 10, is preserved.
[Paras 24, 25, 26 and 27][375-F-G; 376-A-G; 377-A-B]
4. Section 11(1) of the NIA Act empowers the Central
government to constitute Special Courts "for the trial of
scheduled offences". Under sub-Section (1) of Section 13, every
scheduled offence which has been investigated by the NIA shall
be tried only by the Special Court within whose local jurisdiction
the offence was committed. The exclusive jurisdiction which is
conferred on the Special Court to try a scheduled offence
investigated by the NIA is amplified by the non-obstante provision
which overrides the provisions contained in the CrPC. Section
22(1) empowers the State government to constitute Special Courts
for the trial of offences under the enactments which have been
specified in the Schedule to the NIA Act, and which have
been investigated by the State Investigative Agency.
[Para 32][378-G-H; 379-A]
5. Continuation of investigation by the ATS Nanded
The submission of the appellants is that once the Central
government directed the NIA Mumbai to take over the
investigation under Section 6(4), the consequence under Section
6(6) was that ATS Nanded could not continue with the investigation
(and file a charge-sheet) thereafter. The plain text of Section 6
indicates that the above proposition is incorrect. Sub-Section (4)
of Section 6 contemplates a direction by the Central government
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to the NIA to investigate an offence, where it is of the opinion
that the offence is a scheduled offence and that it is fit to be
investigated by the NIA. Sub-Section (5) also confers a suo motu
power on the Central government to direct the NIA to investigate
a scheduled offence. Under sub-Section (6), upon the issuance of
a direction under sub-Sections (4) or (5) of Section 6, the State
government and the officer in-charge of the police station
investigating the offence "shall not proceed with the investigation
and shall forthwith transmit the relevant documents and records
to the [NIA]". However, this stipulation has to be read in the
context of sub-Section (7), under which the investigation by the
officer in-charge of the police station has to continue till the NIA
takes up the investigation of the case. Sub-Section (7) is a
provision for the "removal of doubts". Such a provision clarifies
the intent of the law-maker so as to place it beyond the realm of
ambiguity. Hence, on a conjoint reading of sub-Sections (4), (5),
(6) and (7) of Section 6, what emerges is that the ATS Nanded
had a duty to continue with the investigation till the NIA Mumbai
actually took over the investigation from it. [Para 33][379-B-F]
H N Rishbud and Inder Singh v. State of Delhi [1955] 1
SCR 1150; Ramsinh Bavaji Jadeja v. State of Gujarat
(1994) 2 SCC 685 : [1994] 2 SCR 239; Union of India
v. Prakash P. Hinduja (2003) 6 SCC 195 : [2003] 1
Suppl. SCR 307; Bikramjit Singh v. State of Punjab
(2020) 10 SCC 616; M Ravindran v. Intelligence
Officer, Directorate of Revenue Intelligence (2021) 2
SCC 485; Sadique v. State of Madhya Pradesh 2021
(12) SCALE 401; Fakhrey Alam v. State of Uttar
Pradesh 2021 SCC OnLine SC 532 - relied on.
6. An investigation commences upon the receipt of
information by the police which discloses the commission of a
cognizable offence. However, the mere receipt and recording of
such information (through an FIR) by itself does not mean that
the investigation has also commenced. Rather, the investigation
commences when the police takes the first step (of proceeding
to the spot or collecting evidence or speaking to a witness or
arresting the accused person) on the basis of such information.
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA
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In the present case, the investigation was initiated by the ATS
Nanded following the registration of the FIR on 14 July 2016, on
receipt of source information that appellant-N was in contact over
the internet with members of IS/ISIS/ISIL/Daesh. This led to the
arrest of four accused persons, including appellant-N and one
'M'. Thereafter, considering the gravity of the offence involved,
the Central government directed the NIA Mumbai to take up
further investigation of the case on 8 September 2016, exercising
its powers under Section 6(4) of the NIA Act. The NIA Mumbai
re-numbered the case on 14 September 2016. However, the NIA
Mumbai intimated the ATS Nanded to transfer the case records
to them on 23 November 2016, and it was only on 8 December
2016 that the records were handed over to the NIA Mumbai by
the ATS Nanded. ATS Nanded filed the charge-sheet before the
CJM, Nanded on 7 October 2016 (which was prior to even the
letter of the NIA Mumbai dated 23 November 2016 for the
handing over of the case records). Likewise, the CJM, Nanded
took cognizance of the offence and committed the case to
trial before the ASJ, Nanded on 18 October 2016. [Paras 37,
38][383-A-F]
7. The contention of the ATS Nanded is that the
investigation by them until the NIA Mumbai took up the
investigation of the case was in terms of the mandate of subSection (7) of Section 6 since the provision states that "till the
[NIA] takes up the investigation of the case, it shall be the duty
of the officer in-charge of the Police Station to continue the
investigation". In the present case, the NIA Mumbai intimated
the ATS Nanded to transfer the case papers on 23 November
2016, following which the ATS Nanded sent the papers on 8
December 2016. While the NIA Mumbai may have re-numbered
the case file on 14 September 2016, it could not have taken the
initial step of its investigation into the case till it had access to
the case papers, which it only received from the ATS Nanded on
8 December 2016. Thus, the mere renumbering of the case filed
by the NIA Mumbai did not take away the power of the ATS
Nanded to continue the investigation. The said authority could
do so till the records of the case were received by the NIA
Mumbai. Hence, the investigation conducted by the ATS Nanded
prior to this was within the mandate of sub-Section (7) of Section
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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. [Para 39][383-F-H;
384-A-C]
8. CJM, Nanded's jurisdiction for remand and committal
to trial
Sub-Section (1) of Section 11 empowers the Central
government to constitute Special Courts "for the trial of
scheduled offence". Sub-Section (1) of Section 13 provides that,
notwithstanding anything contained in the CrPC, every scheduled
offence investigated by the NIA shall be tried only by the Special
Court. Hence, the exclusive jurisdiction of the Special Court to
try a scheduled offence under sub-Section (1) of Section 13
attaches where the scheduled offence has been "investigated by
the [NIA]". Further, sub-Section (1) of Section 16 is an enabling
provision which empowers a Special Court to take cognizance of
any offence without the accused being committed to it for trial
upon receiving a complaint of facts which constitute such offence
or upon a police report of such offence. However, this clearly
would not affect either the antecedent investigation by the ATS
Nanded prior to the NIA Mumbai having taken up the
investigation or the submission of the charge-sheet as a logical
consequence of the investigation which was conducted by the
ATS Nanded. The enabling provisions of sub-Section (1) of Section
16 would not invalidate the submission of the charge-sheet to
the CJM, Nanded or the order of committal made to the ASJ,
Nanded. [Para 40][384-E-H; 385-A]
9. In the present case, the appellants were arrested on 14
July 2016. The charge-sheet was submitted on 7 October 2016.
The 90 days period of remand would have been completed on 14
October 2016. Applying the principles enunciated in Bikramjit
Singh (in relation to the power of the CJM to extend investigation
upto 180 days) to the present case (in relation to the jurisdiction
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of the CJM in relation to remand and committal of case to trial),
the first consideration would be whether there existed a Special
Court under Section 22 of the NIA Act to divest the CJM, Nanded
of its jurisdiction. The appellants have produced various
notifications issued by the Government of Maharashtra
designating Special Courts under Section 22 for trial of schedules
offences under the NIA Act. The earliest of those notifications is
dated 13 April 2017. Hence, the principle enunciated by this Court
in Bikramjit Singh would not apply to the present case since there
existed no Special Courts in the State of Maharashtra designated
under Section 22 of the Act (since the investigation was being
conducted by the ATS Nanded, which had the jurisdiction over
the case). [Para 47][391-A-C, E]
10. A reading of Section 10 of the NIA Act indicates that
there is no embargo on the State Investigating Agency to
investigate a scheduled offence, which would include offences
under the UAPA. Consequently, till the investigation was taken
up by the NIA Mumbai, the ATS Nanded was acting within
jurisdiction in investigating the offence and filing the charge-sheet
in the present case. Both of these took place prior to 8 December
2016, which is when the investigation was handed over to the
NIA Mumbai. Admittedly, once the NIA Mumbai took up the
investigation, the Special Court designated under Section 11 of
the NIA Act would have sole jurisdiction to try the case. In the
present case, the NIA Mumbai took up the investigation only on
8 December 2016 after receiving the records from the ATS
Nanded, and thereupon it filed an application for transfer of the
case from the ASJ, Nanded to the NIA Special Court, Mumbai
constituted under Section 11 of the NIA Act. However, till the
NIA Mumbai took over the investigation, jurisdiction would reside
with a Court which ordinarily had it. The Government of
Maharashtra in exercise of powers conferred by Section 11 read
with Section 185 of the CrPC issued a notification dated 26 August
2016 designating the CJM, Nanded as the remand court and the
ASJ, Nanded as a Special Court for the trial of cases filed by the
ATS Nanded. There is no challenge to the notification dated 26
August 2016. In this backdrop, the CJM, Nanded has been
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designated as a Court of remand and the ASJ, Nanded as a Special
Court under the CrPC for the trial of cases filed by the ATS
Nanded. Hence, they both had the jurisdiction to entertain the
present case under the UAPA till the NIA Mumbai took over the
investigation on 8 December 2016, and sought a transfer of the
case to the NIA Special Court at Mumbai constituted under
Section 11 of the NIA Act. [Paras 48, 49][391-F-H; 392-A-D]
Case Law Reference
[1955] 1 SCR 1150
relied on
para 34
[1994] 2 SCR 239
relied on
para 35
[2003] 1 Suppl. SCR 307
relied on
para 36
(2020) 10 SCC 616
relied on
para 44
(2021) 2 SCC 485
relied on
para 45
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1165 of 2021.
From the Judgment and Order dated 05.07.2018 of the High Court
of Judicature at Bombay in Writ Petition No.5022 of 2017.
With
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. Swati
Ghildiyal, Zoheb Hussain, B. V. Balaram Das, Rahul Chitnis, Sachin
Patil, Aaditya A. Pande, Geo Joseph, Advs. for the Respondents.
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:
A
Facts
B
Submissions
C
Provisions of the NIA Act
NASER BIN ABU BAKR YAFAI v. THE STATE OF MAHARASHTRA
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D
Continuation of investigation by the ATS Nanded
E
CJM, Nanded's jurisdiction for remand and committal to trial
F
Conclusion
A Facts
1. This batch of two appeals arises from a judgment dated 5 July
2018 of a Division Bench of the High Court of Judicature at Bombay.
2. On 14 July 2016, an FIR1 was registered under Sections 120-B
and 471 of the Indian Penal Code 18602 read with Sections 13, 16, 18,
18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 19673
and Sections 4, 5 and 6 of the Explosive Substances Act 19084. It was
registered with the Anti-Terrorism Squad5 at the Kala Chowki Police
Station Mumbai on the basis of written information provided by Manik
Vitthal Rao Bedre6, against two persons: (i) Naser Bin Abu Bakr Yafai
(the appellant in the first of the two appeals7); and (ii) Farooq (who was
residing in Syria). The complaint alleged that the ATS had received source
information that Naser Bin Abu BakrYafai was in contact through the
internet with members of the Islamic State8/Islamic State of Iraq and
Syria9/Islamic State of Iraq and Levant10/Daesh, terrorist organizations
banned by the United Nations and the Indian Government. He was alleged
to have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh)
in making bombs/IEDs to cause a blast during the month of Ramzan, for
which he had procured the required material in July 2016. The ATS
arrested four persons from Parbhani, namely: (i) Naser Bin Abu Bakr
Yafai; (ii) Mohammad Shahed Khan (the appellant in the companion
appeal11); (iii) Iqbal Ahmed; and (iv) Mohammad Raisuddin.
3. On 26 August 2016, the Government of Maharashtra, in exercise
of powers conferred by Section 11 read with Section 185 of the Code of
1 CR No 8 of 2016
2 "IPC"
3 "UAPA"
4 "ES Act"
5 "ATS"
6 A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra
7 Criminal Appeal No 1165 of 2021
8 "IS"
9 "ISIS"
10 "ISIL"
11 Criminal Appeal No 1166 of 2021
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Criminal Procedure 197312 issued a notification designating the Chief
Judicial Magistrate13, Nanded, as a Court of remand and the Court of
Additional Sessions Judge14, Nanded, as a Special Court to try cases
filed by the ATS Nanded.
4. On 8 September 2016, the Ministry of Home Affairs of the
Union government15 directed the National Investigation Agency16 to take
over further investigation in the present case by exercising powers under
Section 6(4) of the National Investigation Agency Act 200817. On 14
September 2016, the NIA Mumbai renumbered the case18 for taking up
further investigation.
5. The ATS continued with the investigation and filed a chargesheet on 7 October 2016 against the aforesaid accused persons under
Sections 120-B and 471 of the IPC read with Sections 13, 16, 18, 18-B,
20, 38 and 39 of the UAPA and Sections 4, 5 and 6 of the ES Act before
the CJM, Nanded. The CJM, Nanded took cognizance of the offence
and on 18 October 2016 committed the case19 to the Court of ASJ,
Nanded.
6. On 23 November 2016, the NIA Mumbai informed the ATS
Nanded of having taken over the investigation and sought the papers/
records of the case. On 8 December 2016, the ATS Nanded handed
over the case papers to the NIA Mumbai. At present, the NIA Mumbai
is seized of the matter and is conducting further investigation.
7. During the course of the above events, Naser Bin Abu Bakr
Yafai had filed an application on 21 October 2016 before the ASJ, Nanded,
under Section 167(2) of the CrPC. In his application, he contended that
the offences under the UAPA are scheduled offences under the NIA
Act, and hence, the CJM, Nanded had no jurisdiction to pass an order on
remand, to take cognizance and pass an order of committal of the
proceedings to the ASJ, Nanded since it was not a "Court" established
under Sections 11 or 22 of the NIA Act. On 14 November 2016, the
ASJ, Nanded rejected Naser Bin Abu Bakr Yafai's application since, at
12 "CrPC"
13 "CJM"
14 "ASJ"
15 F.No. 11011/24/2016-IS.IV
16 "NIA"
17 "NIA Act"
18 RC-03/2016/NIA/MUM
19 Sessions Case No 106 of 2016
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that time, the NIA Mumbai had not taken over the investigation from the
ATS Nanded and hence, the ATS Nanded had to continue with the
investigation under Section 6(7) of the NIA Act. Therefore, the ATS
Nanded, in light of the notifications issued by the Government of
Maharashtra, was held to have correctly filed the charge-sheet before
the CJM, Nanded who committed the case to trial before the ASJ, Nanded.
8. The appellant filed a criminal writ petition20 before the High
Court of Judicature at Bombay to challenge the order of the ASJ, Nanded.
During the pendency of the petition, the NIA Mumbai filed an
application21 under Section 407(2) of the CrPC before the High Court
seeking transfer of the records and proceedings in the trial from the
ASJ, Nanded to the NIA Special Court, Mumbai on the ground that the
NIA Mumbai was taking up further investigation of the case.
9. By judgment and order dated 5 July 2018, a Division Bench of
the High Court dismissed the writ petition filed by Naser Bin Abu Bakr
Yafai and allowed the application filed by NIA Mumbai and transferred
the case from the Court of the ASJ, Nanded to the NIA Special Court,
Mumbai. The High Court observed that the power of investigation by
the police officer of the State government would cease only after the
NIA takes over the investigation of a scheduled offence. Further, in the
view of the High Court, the NIA Mumbai had taken over the investigation
in the present case only on 8 December 2016, when it had received the
papers from ATS Nanded. The High Court also held that the ASJ, Nanded
had jurisdiction under the CrPC to try the offences under the UAPA,
even though they were scheduled offences under the NIA Act, until the
investigation was entrusted to and taken over by the NIA, after which
the Special Court constituted under Section 11 of the NIA Act would
exclusively try such scheduled offences. Naser Bin Abu Bakr Yafai
then filed a special leave petition22 before this Court challenging the order
of the Bombay High Court.
10. On the other hand, on 4 September 2017, Mohammad Shahed
Khan (the appellant in the companion appeal) had written a letter to the
Chief Justice of the Bombay High Court for his release and arguing that
his detention was illegal since the ATS Nanded could not have filed the
charge-sheet once the NIA Mumbai had taken over the investigation.
20 Criminal Writ Petition No 5022 of 2017
21 Criminal Application No 27 of 2017
22 "SLP"
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The letter was converted into a writ petition, and is pending before the
Bombay High Court.
11. Mohammad Shahed Khan also filed an application for bail
before the NIA Special Court, Mumbai on 27 April 2021, which was
rejected by an order dated 22 June 2021. While dismissing Mohammad
Shahed Khan's application, the NIA Special Court, Mumbai observed
that:
"15. Considering the fact that the issue in respect of jurisdiction
for remand, cognizance and committal of the case has already
been decided by the Learned Sessions Judge, Nanded and that
the same has been confirmed by the Hon'ble Bombay High Court,
wherein the applicant was also one of the parties, he cannot be
allowed to reopen said issue before this court. Therefore, I am of
the view that the application being devoid of substance, deserves
to be rejected."
12. Mohammad Shahed Khan then filed an SLP to challenge the
judgment and order dated 5 July 2018, though he was not a party to the
proceedings before the Bombay High Court.
B Submissions
13. The SLPs which invoke the jurisdiction of this Court under
Article 136 have been instituted essentially on two grounds. The first
ground is that once the Central government entrusted the investigation
to the NIA under Section 6(4) of the NIA Act, ATS Nanded had no
jurisdiction to continue with the investigation into a scheduled offence
under the NIA Act. The second ground is that since the offences under
the UAPA are scheduled offences under the NIA Act, even if investigated
by the State Investigating Agency, they would be exclusively triable by a
Special Court constituted under the NIA Act and the CJM, Nanded had
no jurisdiction to remand the accused persons and commit the case for
trial before the ASJ, Nanded.
14. The above submissions have been advanced during the course
of arguments by Mr Farrukh Rasheed, Counsel appearing on behalf of
Naser Bin Abu Bakr Yafai. Buttressing the submissions, Mr Rasheed
urged that:
(i)
The expression "Special Court" as defined in Section 2(h)
of the NIA Act is to mean a Special Court constituted under
Section 11 or, as the case may be, under Section 22;
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(ii)
Where the Central government issues a direction, upon the
formation of an opinion that the offence is a scheduled
offence and is fit to be investigated by the NIA, the
consequence is provided by sub-Section (6) of Section 6;
(iii)
Upon the issuance of a direction under sub-Section (4) or
sub-Section (5) of Section 6, neither the State government
nor a police officer of the State Agency investigating the
offence can proceed with the investigation and must
forthwith transmit the relevant documents and records to
the NIA;
(iv)
Section 11 empowers the Central government to constitute
Special Courts for the trial of scheduled offences, while
Section 22 empowers the State governments to constitute
Special Courts for the trial of offences specified in the
Schedule to the NIA Act;
(v)
In the present case, in spite of a direction under Section
6(4), the ATS Nanded continued with its investigation and
filed a charge-sheet in breach of the provisions of subSection (6) of Section 6; and
(vi)
Since all offences punishable under the UAPA are scheduled
offences under the NIA Act, the CJM, Nanded is divested
of their jurisdiction. Further, since a Special Court was
designated by the Government of Maharashtra under Section
22, only that Court had jurisdiction in the present case.
15. Advancing his submissions in the companion appeal, Mr Colin
Gonsalves, Senior Counsel appearing on behalf of Mohammad Shahed
Khan submitted that:
(i)
The registration of an FIR on 14 September 2016 by NIA
Mumbai was the beginning of the investigation by them;
(ii)
After the FIR was renumbered by the NIA on 14 September
2016, the ATS Nanded continued to investigate and filed a
charge-sheet before the CJM, Nanded on 7 October 2016;
(iii)
Sub-Sections (4) and (6) of Section 6 of the NIA Act contain
three stipulations:
(a)
The Central government, where it is of the opinion
that the offence is a scheduled offence and is fit to
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be investigated by the NIA, shall direct the NIA to
investigate the offence;
(b)
Upon the issuance of such a direction under subSection (4), the State government and its Police
Officers shall not proceed with the investigation any
further; and
(c)
The relevant documents and records must be
transmitted to the NIA forthwith;
(iv)
The NIA Act and the UAPA are criminal statutes of the
utmost severity, and there is a statutory obligation upon the
NIA and the State Police Agency to collect papers
immediately and transmit them to the NIA, respectively;
(v)
In the alternative, and even assuming that the State Police
could have investigated, the charge-sheet filed before the
CJM, Nanded is a nullity because it could have been filed
only in the Special Court constituted under Section 22 of
the NIA Act; and
(vi)
The committal proceedings are also a nullity because Section
16(1) empowers the Special Court to take cognizance of
any offence without the committal of the accused to it for
trial, and hence the charge-sheet ought to have been filed
by the ATS Nanded in a Special Court in view of the
provisions of Section 22.
On the basis of the above submissions, Mr Gonsalves, urged that
since the charge-sheet was not filed within the stipulated period in a
proper court entrusted with jurisdiction, the accused have an indefeasible
right to bail under the provisions of Section 43D of the UAPA.
16. The above submissions have been contested by Mr K M
Nataraj, Additional Solicitor General23 appearing on behalf of the NIA.
The ASG urged that:
(i)
Sub-Section (7) of Section 6 of the NIA Act declares, for
the removal of doubts, that till the NIA takes up the
investigation of the case, it shall be the duty of the officerin-charge of the police station to continue the investigation;
23 "ASG"
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(ii)
The expression "it shall be the duty" connotes that it is
obligatory for the officer-in-charge of the police station to
continue with the investigation till the investigation is taken
up by the NIA;
(iii)
In other words, until the State Police is informed or intimated
by the NIA of the case having been taken up for
investigation, the officer-in-charge of the police station is
under a mandate to investigate;
(iv)
If the submission which is urged by the appellants is
accepted, that would result in a vacuum in the investigation
between the date of the issuance of a direction under
Section 6(4) and the actual taking over of the investigation
by the NIA;
(v)
Section 10 of the NIA Act recognises the powers of the
State government to investigate scheduled offences;
(vi)
Section 13 prescribes that every scheduled offence
investigated by the "Agency" shall be tried only by the
Special Court within whose local jurisdiction it was
committed. The expression "Agency" is defined in Section
2(a) as the "National Investigation Agency" and as a
consequence of Section 13, no embargo is placed on any
other Court until such time as the scheduled offence is
investigated by the NIA;
(vii)
The provisions of the NIA Act have to be construed
harmoniously so as to achieve its purposes;
(viii) Sections 13 and Section 22 only govern the trial of offences
and not pre-trial procedures;
(ix)
The enabling provisions under Section 16(1) for a Special
Court to take cognizance of any offence without the accused
being committed to it for trial would not render the order of
the CJM, Nanded a nullity in the present case; and
(x)
In this context, the principles which are enunciated in
Section 465 of the CrPC would stand attracted.
17.