The Jammu & Kashmir High Court noted that the National Investigation Agency Act, 2008 (hereinafter referred to as the “NIA Act”) does not prohibit the investigation of the offences by Local Investigating Agencies. It is only that the offence must be tried by a Special Court constituted under Section 22 of the NIA Act and in case there is no Special Court, the Session Court having jurisdiction in that area shall try. The bench dismissed the petition stating that a writ petition would not be maintainable in a case where an alternate efficacious remedy is available.
Brief Facts:
The present petition is filed under Section 561 A of the Jammu & Kashmir Criminal Procedure Code, 1973 challenging the order passed by the Principal Sessions Judge vide which the bail application of the Petitioner was rejected.
Contentions of the Petitioner:
It was argued by the Petitioner that the investigation was done by local police and not the National Investigation Agency, therefore, provisions of the NIA Act cannot be applicable. It was also contended that the order was passed by a Session Judge and not a Special Court, hence, the remedy of appeal is not available to the Petitioner.
Contentions of the Respondent:
The Respondent contended that the petition is not maintainable as the said order is appealable in terms of Section 21 of the NIA Act.
Observations of the Court:
The Court observed that the State Government has the power to designate Courts of Session as Special Courts for the trial of offences in the NIA Act. On the date on which the said order was passed, there was no Special Court designated. However, Section 22(3) of the NIA Act provides that if Special Court is not designated, the jurisdiction is conferred upon the Session Court. Therefore, for all practical purposes, the Session Court acquires the status of a Special Court in case no Special Court is designated by the State Government.
Concerning the investigation being conducted by the Local Police, the Bench noted that the NIA Act does not prohibit the investigation of the offences by Local Investigating Agencies. It is only that the offence has to be tried by a Special Court constituted under Section 22 of the NIA Act and in case there is no Special Court, the Session Court having jurisdiction in that area shall try.
The decision of the Court:
In the present case, the Petitioner instead of availing remedy of appeal under Section 21 of the NIA Act, filed a writ petition which would not be maintainable in a case where the alternate efficacious remedy is available. Therefore, the present petition is accordingly dismissed.
Case Title: Mohammad Ayoub Dar v. State of J&K
Coram: Hon’ble Mr. Justice Sanjay Dhar
Case No.: CRMC No. 71/2019
Advocate for Petitioner: Adv. Mr. S.H. Thakur
Advocate for Respondent: Adv. Mr. Usman Gani
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