Md. Aftab Khan @ Aftab Khan And ... vs The State Of Jharkhand And Others
2023 Latest Caselaw 2932 Jhar

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             IN THE HIGH COURT OF JHARKHAND, RANCHI


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W.P.(Cr.) No. 546 of 2023

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Md. Aftab Khan @ Aftab Khan and Others .... Petitioners

-- Versus --

The State of Jharkhand and Others .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Shadab Eqbal, Advocate For the Union of India :- Mr. Anil Kumar, A.S.G.I.

       For the State               :-    Mr. Manoj Kumar, Advocate
                                         Mr. Deepankar Ray, Advocate
       For the N.I.A.              :-    Mr. Amit Kumar Das, Spl.P.P.
                                         Mr. Saurav Kumar, Advocate
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2/17.08.2023        Heard learned counsel appearing on behalf of the

petitioners, Mr. Anil Kumar, the learned counsel appearing on behalf of

the respondent Union of India, Mr. Manoj Kumar, the learned counsel

along with Mr. Deepankar Ray, the learned vice counsel appearing on

behalf of the respondent State and Mr. Amit Kumar Das, the learned

counsel along with Mr. Saurav Kumar, the learned vice counsel appearing

on behalf of the respondent N.I.A.

2. This petition has been filed for direction upon the

respondent no.4 to comply section 6 of National Investigation Agency

Act, 2008 in connection with Kadma P.S. Case No.54 of 2023, registered

for the offence under sections 147, 148, 149, 332, 333, 337, 338, 353,

427, 307, 153-A, 188, 295-A, 120-B, 116 of the I.P.C. and section 27 of

the Arms Act and under section 3 and 4 of the Explosive Substance Act

and under section 3 of the Prevention of Damage to Public Property Act,

pending before learned S.D.J.M., East Singhbhum, Jamshedpur.

3. The learned counsel for the petitioners submits that the

case has been registered in Kadma Police Station under the aforesaid

sections. He submits that sections 3 and 4 of the Explosive Substance Act

is a scheduled offence in view of National Investigation Agency Act,

2008. He submits that once the scheduled offence is there, the

mandatory provision of section 6 of the Act is required to be followed and

the said procedure has not been followed by the investigating officer of

the State. He submits that the procedure prescribed therein, once the

FIR is registered the same is required to be sent to the Central

Government and the Central Government is further required to made an

opinion either to take over the investigation or allow the State

Government to continue with the investigation. He submits that in this

backdrop, the entire investigating is vitiated and to buttress his such

argument, he relied in the case rendered by the Patna High Court in the

case of Bahadur Kora and Others v. The State of Bihar,

MANU/BH/0261/2015.

4. On the other hand, Mr. Anil Kumar, the learned A.S.G.I.

appearing on behalf of the Union of India submits that the proposition

being interpreted by the petitioner is misconceived one. He submits that

in view of sub-section 7 of section 6 of the said Act, the investigation is

required to be continued. He further submits that section 10 of the said

Act, speaks of investigation by the State Government. He submits that

unless it is taken over by the N.I.A, the investigation will continue. The

argument advanced by Mr. Anil Kumar, the learned A.S.G.I. appearing on

behalf of the Union of India has been adopted by Mr. Manoj Kumar, the

learned counsel appearing on behalf of the respondent State and he

submits that several sections of the I.P.C were there along with other

statutory sections of other Acts, that does not mean that the case is

required to be investigated by the N.I.A.

5. In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through contents

of the F.I.R and finds that several persons have been made accused in

the said F.I.R and there were assault amongst two of the groups and

pursuant to that, the case has been registered under the aforesaid

sections. There is no doubt that Explosive Substance Act comes within

the scheduled offence of the National Investigation Agency Act, 2008,

however, the procedure is prescribed therein. Sub-section 7 of section 6

of the said Act speaks as under:

6. .........(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.

6. Section 10 of the said Act further gives power to the State

Government to investigate scheduled offences. Looking to sub section 7

of the section 6 read with section 10 of the said Act, it is crystal clear

that unless on the request of the Central Government, the N.I.A takes

over the investigation, this sections disclose that the power of the State

Government to investigate and prosecute any scheduled offence or other

offences would remain intact unless otherwise provided for in the Act; in

other words, the investigation entrusted to the N.I.A., the power of the

State to investigate and prosecute the scheduled offences ceases once

the investigation is taken over by N.I.A. and that stage has not come in

the case in hand as yet, and in view of that, the State agency is

empowered to investigate the case even if the offence relates to the

scheduled offence under the National Investigation Agency Act, 2008.

7. In the case relied by the learned counsel appearing on

behalf of the petitioners, the subject matter was with regard to the

Unlawful Activities (Prevention) Act and that was not the issue. In the

Full Bench judgment, the reference was with regard to trial can be

conducted by the learned Judicial Magistrate or by the Special Court and

in view of that, it has been decided, however, in sub-para(b) of

concluding paragraph no.44, it has been held as under:

"44. ....... (B) the case even where offences punishable under the provisions of U.A.P Act are alleged shall be tried by the courts as provided for under the Cr.P.C and not in accordance with the special procedure, under the Act unless (i) he investigation of such cases is entrusted by the Central Government to the N.I.A. and (ii) the N.I.A transfers the same to the investigating agency of State Government."

8. In view of above, the Court finds that no interference is

warranted.

9. Accordingly, W.P.(Cr.) No.546 of 2023 is dismissed.

( Sanjay Kumar Dwivedi, J.)

SI/,