Karnataka High Court
Naseer vs National Investigation Agency on 18 March, 2025
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WP No. 28659 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.28659 OF 2024 (GM-RES)
BETWEEN:
1. NASEER
AGED ABOUT 32 YEARS,
S/O BASHA A,
R/AT, #590, 8TH CROSS,
MOHAMMADIYA MASJID VINOBHA NAGAR,
KG HALLI, BENGALURU NORTH,
ARABIC COLLEGE, BENGALURU,
KARNATAKA-560045
AND PRESENTLY R/AT H.NO.46,
5TH CROSS, 2ND MAIN,
VINOBHA NAGAR, BENGALURU,
KARNATAKA-560045.
Digitally signed by 2. IRSHAD HUSSIN
MAHALAKSHMI B M
AGED ABOUT 32 YEARS,
Location: HIGH
COURT OF S/O ALTHAF HUSSIN,
KARNATAKA R/O #141, 2ND CROSS,
OPP. GANESHA TEMPLE,
GANDHIPURA, WHITEFIELD (P),
BENGALURU, KARNATAKA-66
AND PRESENTLY R/AT, NO.419,
2ND MAIN, 6TH CROSS,
OPPOSITE MASJID-E-KHAIR
VINOBHANAGAR, KG HALLI,
BENGALURU, KARNATAKA-560045.
3. ABDUL GHANI M @ MANIKANDAN
AGED ABOUT 35 YEARS,
S/O MADAVAN,
R/O #1144, 7TH CROSS, RK HEGDE NAGAR,
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THANISANDRA MAIN ROAD,
BENGALURU NORTH,
DR. SHIVARAMA KARANTH NAGAR,
BENGALURU, KARNATAKA-560077
AND PRESENTLY RESIDING AT
1ST CROSS, BHARAT SWEETS LANE,
VENKATESHAPURAM, BENGALURU,
KARNATAKA-560045.
4. MOHAMMED ADIL .C
AGED ABOUT 25 YEARS,
S/O MOHAMMED FAROOQ C,
R/O. #05, 3RD MAIN, BHARATH
MATHA LAYOUT NEAR MAKKA MASJID,
VENKATESHPURA KG HALLI,
BENGALURU NORTH, ARABIC COLLEGE,
BENGALURU, KARNATAKA-560045.
5. ABDUL LATHIF C
AGED ABOUT 29 YEARS,
S/O MOHAMMED FAROOQ,
R/O #05, 3RD MAIN, BHARATH
MATHA LAYOUT NEAR MAKKA MASJID,
VENKATESHPURA KG HALLI,
BENGALURU NORTH, ARABIC COLLEGE,
BENGALURU, KARNATAKA-560045.
6. JALAL PASHA
AGED ABOUT 39 YEARS,
S/O AMEER JAN,
R/O #09, 1ST CROSS, AYUDHA DAS NAGAR,
DJ HALLI, NEAR AMMAR SCHOOL,
BENGALURU NORTH, ARABIC COLLEGE,
BENGALURU, KARNATAKA- 560045.
7. MOHAMMED YOUNUS
AGED ABOUT 26 YEARS,
S/O KAJA,
R/O #243, 7TH CROSS,
OLD BAGLUR LAYOUT, BENGALURU,
ST. THOMAS TOWN BENGALURU,
KARNATAKA-560 004.
8. MOHAMMED FAIZAL
AGED ABOUT 22 YEARS,
S/O LATE ABDUL SHOOKUR,
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R/O #54, 3RD CROSS,
KHUSHAL NAGAR, KG HALLI,
NEAR SAYEED MASJID,
BENGALURU NORTH, BENGALURU,
KARNATAKA-560045
AND PRESENTLY RESIDING AT
3RD FLOOR, 3RD CROSS, LR BHANDE,
SHAMPURA MAIN ROAD,
NEAR APARTMENTS, HANI ENCLAVE
KARNATAKA-560045 BENGALURU.
9. IRFAN KHAN
AGED ABOUT 27 YEARS,
S/O DASTAGIR KHAN,
R/O #1057, 13TH CROSS,
NEAR GANPATI TEMPLE,
GOVINDAPURA MAIN ROAD,
AC POST, BENGALURU,
KARNATAKA-560045.
10. AZIL PASHA
AGED ABOUT 34 YEARS,
S/O MOHD. SHAUKAT,
R/O #3216, 7TH MAIN, 3RD CROSS,
NAGAMMA LAYOUT, KAVAAL BAIRASANDRA,
BENGALURU NORTH, RT NAGAR,
BENGALURU, KARNATAKA-32
AND PRESENTLY RESIDING AT
NO.2, NAGAMMA, LAYOUT,
KAVALBYRASANDHRA, RT NAGAR,
BENGALURU, KARNATAKA.
11 . AKBAR KHAN
AGED ABOUT 38 YEARS,
S/O. LATE AMANULLAH KHAN,
R/O #654, 14TH CROSS, FATHIMA LAYOUT,
BENGALURU RASHAD NAGAR, NORTH,
ARABIC COLLEGE, BENGALURU,
KARNATAKA- 45
AND PRESENTLY RESIDING AT NO.27/107,
YALLAMMA TEMPLE ROAD, 2ND CROSS,
GOVINDAPURA, BENGALURU,
KARNATAKA-560045.
12 . KALEEMULLA @ SHAHRUKH
AGED ABOUT 27 YEARS,
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S/O RAHAMUTHULLA,
R/O #12, 11TH CROSS,
VINOBHANAGAR, KG HALLI,
BENGALURU NORTH, BENGALURU,
KARNATAKA-560045.
13. MOHAMMED ZABIULLA
AGED ABOUT 19 YEARS,
S/O ASLAM PASHA,
R/O #91/5, 7TH CROSS,
BM LAYOUT VENKATESHAPURAM,
KG HALLI BENGALURU NORTH,
ARABIC COLLEGE, BENGALURU,
KARNATAKA- 45
AND PRESENTLY RESIDING AT
H.NO.421, 6TH CROSS, 2ND MAIN ROAD,
VINOBHA NAGAR, KG HALLI,
BENGALURU, KARNATAKA- 560045.
14. TANVEER
AGED ABOUT 31 YEARS,
S/O IQBAL,
R/O M8, SHASTRI STREET, VENKATESHPURAM,
VTC, BENGALURU NORTH, PO ARABIC COLLEGE,
BENGALURU, KARNATAKA- 45
AND PRESENTLY RESIDING AT
H. NO.52, 2ND MAIN, OPP. TOTAL GAS BUNK,
BM LAYOUT, VENKATESHPURAM,
AC POST, BENGALURU,
KARNATAKA- 560045.
15. FAZIL
AGED ABOUT 19 YEARS,
S/O AZHAR ALI,
R/O #152, 11TH CROSS, MODI MAIN ROAD,
MUSKAN TEA HOTEL, BENGALURU NORTH,
ARABIC COLLEGE, BENGALURU,
KARNATAKA-45
AND PRESENTLY RESIDING AT
D. NO.388, 5TH CROSS, VINOBHA NAGAR,
KG HALLI, BENGALURU,
KARNATAKA-560045.
16. MOHAMMED TALISH
AGED ABOUT 28 YEARS,
S/O ABDUL RAHIM,
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R/O NO.186, 5TH VINOBHANAGAR CROSS,
KG HALLI, BENGALURU NORTH,
COLLEGE, ARABIC BENGALURU,
KARNATAKA-560045.
17. MOHAMMED ZABIULLA
AGED ABOUT 35 YEARS,
S/O JANI BASHA,
R/O #26, 8TH CROSS, RASHAD NAGAR,
GOVINDPURA, AC POST,
BENGALURU NORTH,
BENGALURU, KARNATAKA-45
AND PRESENTLY RESIDING AT
#7, 13TH CROSS, UMAR NAGAR,
KG HALLI, BENGALURU,
KARNATAKA-560045.
18. MOHD JUNAID
AGED ABOUT 30 YEARS,
S/O MOHAMMED FAROOQ C,
R/O #05, 3RD MAIN, BHARATH
MATHA LAYOUT NEAR MAKKA MASJID,
VENKATESHPURA KG HALLI,
BENGALURU NORTH, ARABIC COLLEGE,
BENGALURU, KARNATAKA- 560045.
19. ZAMEERUDDIN @ ZAMEER
AGED ABOUT 35 YEARS,
S/O NAWAB JAN,
R/O #284, 14TH CROSS,
GOVINDAPUR MAIN ROAD,
BENGALURU NORTH,
ARABIC COLLEGE BENGALURU,
KARNATAKA-45.
20. BASHEER UDDIN
AGED ABOUT 34 YEARS,
S/O NAWAB JAN,
R/O #284, 14TH CROSS,
GOVINDAPUR MAIN ROAD,
BENGALURU NORTH,
ARABIC COLLEGE BENGALURU,
KARNATAKA-560045.
... PETITIONERS
(BY SRI MOHAMMED TAHIR, ADVOCATE)
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AND:
NATIONAL INVESTIGATION AGENCY
MINISTRY OF HOME AFFAIRS (GOI)
BRANCH OFFICE, BENGALURU
#3RD FLOOR, BSNL TELEPHONE EXCHANGE,
HAL 2ND STAGE, INDIRANAGAR,
BANGALORE-560008.
REPRESENTED BY ITS
SUPERINTENDENT OF POLICE.
(AMENDED AS PER COURT
ORDER DATED 15/11/2024).
... RESPONDENT
(BY SRI P. PRASANNA KUMAR, SPL. PP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA R/W 482 OF CR.P.C. R/W 407 OF
CR.P.C. PRAYING TO ISSUE WRIT OF CERTIORARI AND QUASH THE
IMPUGNED ORDER DATED 17.09.2024 PASSED BY THE HON'BLE XLIX
ADDITIONAL CITY CIVIL AND SESSION JUDGE (SPECIAL JUDGE FOR
THE TRIAL OF NIA CASES) (CCH-50) BENGALURU IN SPL.C
NO.141/2021 FOR THE OFFENCES PUNISHABLE SECTIONS 120B, 143,
145, 147, 188 353 AND 427 R/W 34 AND 149 OF IPC AND SECTION 2
OF THE PREVENTION OF DESTRUCTION AND LOSS OF PROPERTY ACT
1981 WHERE IN THE PETITIONERS ARE ARRAYED AS ACCUSED
NO.29-30, 32, 36-37, 43, 46, 48, 51-54, 67-68, 70, 71, 78, 85, 125
AND 126 RESPECTIVELY AT ANNEXURE-A CONSEQUENTLY AND ETC.
Date on which the appeal was 05.03.2025
reserved for Orders
Date on which the Orders was 18.03.2025
pronounced
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MRS JUSTICE K.S. HEMALEKHA
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WP No. 28659 of 2024
CAV ORDER
Per: Hon'ble Mrs Justice K.S. Hemalekha
The petitioners who are arrayed as accused No.29, 30,
32, 36, 37, 43, 46, 48, 51, 52, 53, 54, 67, 68, 71, 78, 85,
125, 126 and 137 in Spl.C.No.141/2021 have called in
question the order dated 17.09.2024 passed by the XLIX
Additional City Civil and Sessions Judge (Special Court for
NIA cases) at Bangalore by which the application filed by
them under Section 8 read with Sections 14 and 20 of the
National Investigation Agency Act, 2008 (for short 'NIA
Act') seeking transfer of the case from Special Court trying
cases under NIA Act to the court having jurisdiction to try
Indian Penal Code (IPC) offences was rejected.
2. The case of the prosecution is that on
11.08.2020 at about 8.45 p.m., a group of 25 to 30 people
gathered in front of Kadugondana (KG) Halli Police Station
and started shouting slogans demanding arrest of one
Naveen, nephew of Sri.Akhanda Srinivasa Murthy, MLA who
had posted certain derogatory message on his facebook
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account, insulting the religious faith of the people who
belong to a particular religion. At about 8.50 p.m., another
group of people under the leadership of one Syed
Ikramuddin entered K.G.Halli police station, demanding
registration of a case against Naveen and others. The
complaint was accepted by the police and registered NCR
for preliminary enquiry as a case vide FIR No. 195/2020
was already registered on the same set of fact at
Devarajeevana (DJ) Halli on 11.08.2020.
3. The gathering at K.G.Halli police station was
increasing gradually and becoming violent and considering
the violent situation which had already erupted at D.J.Halli
police station area and further more gathering at K.G.Halli
police station on 11.08.2020 at 21.00 hours, the
Commissioner imposed curfew in D.J.Halli and K.G.Halli
police station. The gathering of mob turned unruly and
intensified their protest, which led to untold incidents and
registration of FIR against all those who were involved in
the incidents that happened on that date. Accordingly, a
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crime vide FIR No.229/2020 dated 12.08.2020 under
Sections 143, 147, 148, 149, 332, 333, 353, 427 and 436
of Indian Penal Code, 1860 and Section 4 of the Prevention
of Damage to Public Property Act, 1984 were registered
against the petitioners and other individuals and on
investigation done by the State Police, a crime was
registered for offences punishable under Section 120B, 143,
145, 147 and 188 read with Section 34 and 149 of IPC
against the petitioners and others. On investigating and
recording statement of several witnesses, the Central
Government, Ministry of Home Affairs, New Delhi having
regard to the gravity of offence directed the NIA to take up
the investigation of the said case pursuant to which a
charge sheet was filed against the petitioners for the
offences punishable as aforesaid. Before the NIA court, the
petitioners filed an application under Section 8 read with
Sections 14 and 20 of the NIA Act seeking to transfer of the
case of the petitioners to the court having jurisdiction to try
the offences under IPC contending that they have been
charge sheeted for the offences other than the scheduled
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offences along with the other accused persons who have
been charge sheeted for the scheduled offences. The
Special Court by impugned order rejects the application on
the ground that the court has power to try the offences
when all the accused persons were part of the same
incident.
4. Heard Mr.Mohammed Tahir, learned counsel
appearing for the petitioners and Mr.P.Prasanna Kumar,
learned Special Public Prosecutor for the respondent and
perused the material on record.
5. Learned counsel appearing for the petitioners
taking this court to the provisions of NIA Act more
particularly, Section 8, 14 and 20 submits that the Special
Court of the NIA cases is designated under the NIA Act and
has jurisdiction only over the cases investigated by NIA only
for the scheduled offence. It is submitted that the law
mandates that if accused committed other offences along
with the scheduled offences only then the Special Court can
investigate the case and the fact remains that the
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petitioners are not involved in any of the scheduled offences
and the Special Court has no jurisdiction to try the IPC
offences, which is leveled against the petitioners herein.
Stressing on the expression 'the accused' in Section 8 of the
NIA Act, learned counsel for the petitioners submits that
'the accused' has to be read in respect of whom a scheduled
offence is being tried by the NIA court and if such an
accused has committed any other offence, which is
connected to the scheduled offence, then such other offence
could be tried by NIA court and not otherwise.
6. Per contra, the learned counsel appearing for NIA
would contend that the offence / incident that occurred on
11.08.2020 gave rise to offences against all the accused
therein under the Unlawful Activities (Prevention) Act, 1967
(UAPA) and also under the IPC. Learned counsel stressing
on the terms of Section 8, 14 and 20 of the NIA Act read
with Section 223 of Code of Criminal Procedure, 1973 (for
short 'the Code') contends that the NIA court is empowered
to try the offences connected with the scheduled offence.
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Learned counsel submits that the issue involved in this
petition regarding the jurisdiction of the NIA Act to conduct
trial of offences, which are one punishable under IPC is
squarely covered and is no more a res integra in the light of
the decision of the Apex Court in the case of ANKUSH
VIPIN KAPOOR VS. NATIONAL INVESTIGATION
AGENCY1 (ANKUSH). It is further submitted that the co-
accused No.137 had approached this court in
W.P.No.19091/2021 taking similar contention and the
learned Single Judge who had at that point of time
jurisdiction to entertain the cases that arises out of Special
Court for NIA cases, on consideration, has dismissed the
writ petition.
7. In this context, learned counsel appearing for the
petitioners submits that the decision in the case of
ANKUSH is distinguishable as the decision delivered by the
Apex Court is in respect of an investigation carried out by
the NIA under Section 18 for any scheduled offence and in
1
2024 SCC ONLINE SC 3750
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that context, the Apex court held that the NIA, which is
carrying on an investigation into an scheduled offence can
also investigate any other offence, which any other accused
have committed and in the present facts, it is not the
investigation, but the proceedings / trial before the NIA
court.
8. Having heard the learned counsel appearing for
the parties and on perusal of the records, the question that
falls for consideration is, "whether the NIA court has
jurisdiction to try the offences other than the scheduled
offences along with the other accused persons who have
been charge sheeted for the scheduled offences?"
9. To answer the aforesaid issue, it is necessary to
consider the provisions of NIA Act, UAPA and the Cr.P.C.
The petitioners are charge sheeted for the offences
punishable under Section 120B, 143, 145, 147, 188, 353,
427 read with Section 34 and 149 of IPC and Section 2 of
the Prevention of Destruction and Loss of Property Act,
1981. The investigation revealed that in pursuance of a
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common intention and in conspiracy with other accused
persons, the petitioners actively participated in the riots at
K.G.Halli police station area on the intervening night of
11.08.2020 and 12.08.2020 and were part of unruly mob
that assembled unlawfully at K.G.Halli police station, which
attacked the police personnel and damaging the public as
well as the government properties and was found carrying
wooden stick during riots. The petitioners are alleged of the
offences punishable as stated supra and also formation of
an unlawful assembly. The NIA Act was enacted with a view
to constitute an investigation agency at the national level to
investigate and prosecute offences affecting the
sovereignty, security and integrity of India. Security of
State, friendly relation with foreign states and offences
under the Acts enacted to implement international treaties,
agreements, conventions and resolutions of the United
Nations, its agencies and other International Organization
and for matters connected therewith or incidental thereto.
Section 8 of the NIA Act reads as under:
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8. Power to investigate connected offences.
While investigating any Scheduled Offence, the
Agency may also investigate any other offence which
the accused is alleged to have committed if the
offence is connected with the Scheduled Offence.
10. A plain reading of the aforesaid Section indicates
that a power to investigate connected offences with the
scheduled offence is amenable for investigation if such an
offence is connected with the scheduled offence, meaning to
say, that the offence that is alleged to have been
committed by the accused and the other offence should be
in connection with the offence scheduled under the Act.
Section 8 of the NIA Act as stated supra, gives power to
investigate connected offences with the scheduled offence.
The 'scheduled offence' is described in Section 2 as an
offence specified in the 'schedule'. Section 11 of the NIA Act
empowers the Central Government to designate Special
Courts. Section 13 of the NIA Act deals with the jurisdiction
of the Special Courts with respect to every scheduled
offence to be investigated by the agency shall be tried by
the Special Court, which reads as under:
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13. Jurisdiction of Special Courts.--(1)
Notwithstanding anything contained in the Code,
every Scheduled Offence investigated by the Agency
shall be tried only by the Special Court within whose
local jurisdiction it was committed.
(2) If, having regard to the exigencies of the
situation prevailing in a State if,--
(a) it is not possible to have a fair,
impartial or speedy trial; or
(b) it is not feasible to have the trial
without occasioning the breach of peace or
grave risk to the safety of the accused, the
witnesses, the Public Prosecutor or a judge
of the Special Court or any of them; or
(c) it is not otherwise in the interests
of justice, the Supreme Court may transfer
any case pending before a Special Court to
any other Special Court within that State or
in any other State and the High Court may
transfer any case pending before a Special
Court situated in that State to any other
Special Court within the State.
(3) The Supreme Court or the High Court, as
the case may be, may act under this section either
on the application of the Central Government or a
party interested and any such application shall be
made by motion, which shall, except when the
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applicant is the Attorney-General for India, be
supported by an affidavit or affirmation."
11. Section 14 of the NIA Act deals with the
jurisdiction of the Special Court with respect to other
offences, which reads as under:
14. Powers of Special Courts with respect
to other offences.--(1) When trying any offence, a
Special Court may also try any other offence with
which the accused may, under the Code be charged,
at the same trial if the offence is connected with such
other offence.
(2) If, in the course of any trial under this Act
of any offence, it is found that the accused person
has committed any other offence under this Act or
under any other law, the Special Court may convict
such person of such other offence and pass any
sentence or award punishment authorised by this Act
or, as the case may be, under such other law.
Sub-clause(1) of Section 14 of the NIA Act states that
when a Special Court trying any specific offence may also
try any other offence with which the accused may, under
the Code be charged, at the same trial if the offence is
connected with such other offence.
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12. Section 20 of the NIA Act deals with the power to
transfer the cases to the regular courts, which reads as
under:
20. Power to transfer cases to regular
courts.--Where, after taking cognizance of any
offence, a Special Court is of the opinion that the
offence is not triable by it, it shall, notwithstanding
that it has no jurisdiction to try such offence, transfer
the case for the trial of such offence to any court
having jurisdiction under the Code and the Court to
which the case is transferred may proceed with the
trial of the offence as if it had taken cognizance of
the offence.
Section 20 of the NIA Act empowers the Special Court
after taking cognizance of any offence, is of the opinion that
the offence is not triable by it, notwithstanding that it has
no jurisdiction to try such offence, transfer the case for trial
of such offence to any court having jurisdiction.
13. Section 18 of the UAPA deals with the
punishment for conspiracy. As could be seen from the
charge sheet, the investigation reveals that the petitioners
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with common intention and in conspiracy are involved with
other accused persons. However, the petitioners are
charged with Section 120B, which is a punishment of
criminal conspiracy. Section 223 of the Cr.P.C deals with
the persons who may be charged jointly, which reads as
under:
223. What persons may be charged
jointly.--The following persons may be charged and
tried together, namely:--
(a) persons accused of the same
offence committed in the course of the
same transaction;
(b) persons accused of an offence and
persons accused of abetment of, or attempt
to commit, such offence;
(c) persons accused of more than one
offence of the same kind, within the
meaning of section 219 committed by them
jointly within the period of twelve months;
(d) persons accused of different
offences committed in the course of the
same transaction;
(e) persons accused of an offence
which includes theft, extortion, cheating, or
criminal misappropriation, and persons
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accused of receiving or retaining, or
assisting in the disposal or concealment of,
property possession of which is alleged to
have been transferred by any such offence
committed by the first-named persons, or of
abetment of or attempting to commit any
such last-named offence;
(f) persons accused of offences under
sections 411 and 414 of the Indian Penal
Code or either of those sections in respect
of stolen property the possession of which
has been transferred by one offence;
(g) persons accused of any offence
under Chapter XII of the Indian Penal Code
relating to counterfeit coin and persons
accused of any other offence under the said
Chapter relating to the same coin, or of
abetment of or attempting to commit any
such offence; and the provisions contained
in the former part of this Chapter shall, so
far as may be, apply to all such charges:
Provided that where a number of persons are
charged with separate offences and such persons do
not fall within any of the categories specified in this
section, the Magistrate or Court of Session may, if
such persons by an application in writing, so desire,
and if he or it is satisfied that such persons would
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not be prejudicially affected thereby, and it is
expedient so to do, try all such persons together.
14. A plain reading of Section 223 of Code indicates
that if a person is accused of more than one offence of the
same arising out of the same transaction can be tried
together. The charges leveled against the petitioners as
indicated above are one which are punishable under the IPC
and NIA court can try only the offences that are appended
to the schedule. The schedule appended to Section 2(1)(f)
of the NIA Act states the offences, are triable by the NIA
court as under:
"THE SCHEDULE
[See Section 2(1) (f)]
1. The Explosive substances Act, 1908 (6 of
1908);
1A. The Atomic Energy Act, 1962 (33 of 1962)
2. The Unlawful Activities (Prevention) Act, 1967
(37 of 1967);
3. The Anti-Hijacking Act, 1982 ( 65 of 1982)
4. The Suppression of Unlawful Acts against
safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of
Terrorism) Act, 1993 (36 of 1993);
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6. The Suppression of Unlawful Acts Against
Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 (69 of
2002);
7. The Weapons of Mass Destruction and their
Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005 (21 of 2005);
8. Offences under -
(a) Chapter VI of the Indian Penal Code (45
of 1860) [Sections 121 to 130 (both
inclusive)];
(b) Sections 489-A to 489-E (both inclusive)
of the Indian Penal Code (45 of 1860);
(c) Sections 489A to 489E (both inclusive) of
the Indian Penal Code (45 of 1860);
(d) Sub-Section (1-AA) of Section 25 of
Chapter V of the Arms Act, 1959 (54 of
1959); and
(e) Section 66-F of Chapter XI of the
Information Technology Act, 2000 (21 of
2000)."
15. On cursory reading of Section 8 and 14 of the
NIA Act referred above, Section 8 refers to the power of the
agency to investigate any scheduled offence and also
investigate any other offence if connected with the
scheduled offence. Section 14 of the NIA Act refers to the
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power of the Special Court which, while trying any offence,
may also try any other offence with which the accused may
under the Code be charged at the same trial if the offence is
connected with such other offence. In Section 8 and
Section 14(1) of NIA Act, the term 'the accused' refers to all
persons charged with the offences in a particular case who
are being tried before the Special Court. The term 'the
accused' is not limited to a single person but includes all
accused persons involved in the scheduled offence or any
connected offence. If multiple accused persons are part of
the same transaction or are charged together in the same
trial under the Code, the Special Court can try the offence.
Section 14(2) states that in the course of any trial under
the NIA Act of any offence, it is found that the accused
person has committed any other offence under this Act or
under any other law, the Special court may convict such
person of such other offence and pass any sentence or
award punishment authorized by NIA Act or as the case
may be, under such other law. On joint reading of Section 8
and Section 14 of the NIA Act, both the provisions are akin,
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which deal with the jurisdiction of investigation agency, and
the Special Court to try additional or connected offences,
however, they are distinct in their scope and application.
Both the Section expands the jurisdiction beyond the
scheduled offences under the NIA Act. Section 8 ensures
investigation of offences related to scheduled offence,
Section 14 envisages that the Special Court while trying any
offence has also jurisdiction to try any other offence that
'the accused' is charged with, as long as it is part of /
connected to such offence and Section 14(2) further
broadens the power of the Special Court. Similar question
fell for consideration before the Apex Court at the stage of
investigation in the case of ANKUSH and the Apex Court
observed that, if the provisions of Section 17 and 18 of
UAPA are attracted in a given case being scheduled offences
under the NIA Act, the Central Government if it is of the
opinion that such offences have been committed which are
required to be investigated under the Act may under Sub-
section (5) of Section 6 of the said Act, in exercise of its suo
motu power direct the NIA to investigate the scheduled
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offences, but while investigating such scheduled offences,
the NIA can also investigate any other offence, which the
accused is alleged to have committed provided the other
offence is connected with the scheduled offence. In
ANKUSH's case the Apex Court provided an expansive
interpretation of Section 8 of the NIA Act holding that the
Section allows NIA to investigate offences connected to
scheduled offences, even if they are not originally within its
purview. The Apex Court interpreted the word 'the accused'
and clarified that the term 'the accused' in Section 8 should
not be narrowly interpreted to refer only to individuals
initially under investigation for schedule offences. Instead it
encompasses any person who, during the investigation, is
found to have committed an offence connected to the
scheduled offence. The Apex Court emphasized that while
investigating a scheduled offence, the NIA is empowered to
probe any other offence committed by any accused,
provided there is a connection between the two offences.
The Apex Court in the case of ANKUSH giving a deliberate
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consideration has held at para 7 to 7.18, which read as
under:
7. Thus, if the provisions of Sections 17 and 18
of the UAPA are attracted in a given case being
Scheduled Offences under the NIA Act, the Central
Government, if it is of the opinion that such Offences
have been committed which are required to be
investigated under the Act, may under sub-section
(5) of Section 6 of the said Act, in exercise of its suo
motu power direct the NIA to investigate the
Scheduled Offences. But while investigating such
Scheduled Offences, the NIA can also investigate any
other offence which the accused is alleged to have
committed provided the other offence is connected
with a Scheduled Offence. Applying the aforesaid
provision to the facts of the present case, it is held
that while investigating the offences under Sections
17 and 18 of UAPA (Scheduled Offences) by virtue of
sub-section (5) of Section 6, under Section 8 any
other offence such as (an offence under the NDPS
Act connected with the Scheduled Offences (Sections
17 and 18 of the UAPA in the instant case) could also
be investigated. But, such other offence must have a
connection with the Scheduled Offence. 7.1
Furthermore, in our view, the investigation could also
be of a person accused of an offence which has a
connection with a Scheduled Offence which is being
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investigated on the basis of Section 8 of the NIA Act.
Then, the Central Government may also direct any
such offence also to be investigated on receipt of a
report from the NIA as against any accused when it
is already investigating a Scheduled Offence against
a certain accused, as in the instant case provided
that offence has a connection with the Scheduled
Offence. Also, the NIA has been conferred wide
powers under Section 8 of the NIA Act to also
investigate into any other offence committed by the
accused in respect of whom a Scheduled Offence is
being investigated provided the offence is connected
with the Scheduled Offence under the Schedule to
the NIA Act.
7.2 The interpretive challenge that has come to
the forefront in this case is due to the fact that there
are certain co-accused persons who are present in
FIR No.20/2020 and FIR No.23/2020 who are not
accused under the prior FIR No. 01/2018 registered
in the State of Gujarat. Therefore, the question is
whether, the NIA can investigate only the same
accused who is present in the NIA investigation qua
Scheduled Offences and for non-scheduled offence
by virtue of Section 8 of the NIA Act. In other words,
can the NIA investigate any other accused person
who, although not being investigated for any
Scheduled Offences could be investigated by NIA
because there exists a link between the two namely,
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Scheduled and non-scheduled offences, thereby
connecting every co-accused.
7.3 On a plain reading of Section 8, it is clear
that the said Section has to be read in continuation
of what has been stated in sub-section (5) of Section
6 of the NIA Act. Once the Central Government
directs the NIA to investigate a Scheduled Offence
and during the course of such investigation of a
Scheduled Offence against an accused, it becomes
necessary for the NIA to also investigate any other
offence which the said accused is alleged to have
committed, then such offence could also be
investigated provided that other offence to be
investigated is connected with the Scheduled
Offence.
7.4 However, in our view, the expression "the
accused" in Section 8 of the NIA Act needs to be
interpreted contextually. Learned senior counsel for
the petitioner submitted that the said expression has
to be read narrowly and as per its plain meaning as
referring to only "the accused" in respect of whom a
Scheduled Offence is being investigated by the NIA
and if such an accused has committed any other
offence which is connected to the Scheduled Offence
then such other offence could also be investigated by
the NIA provided there is a connection with the
Scheduled Offence. In other words, the argument
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was, that in the first place, the investigation must be
of "the accused" who is accused of a Scheduled
Offence and not any other accused. Next, it is only in
respect of such an accused if any other offence is
alleged to have been committed by him which is
connected with the Scheduled Offence, which could
also be investigated by the NIA on the strength of
Section 8 of the NIA Act.
7.5 We do not think that such a narrow
interpretation could be given to the expression "the
accused" in Section 8 of the NIA Act to not include
any other accused. The expression "Agency may also
investigate any other offence which the accused is
alleged to have committed" has no doubt to be read
with the rigour of "if the offence is connected with
the Scheduled Offence". In other words, if any other
offence is connected with the Scheduled Offence,
then the NIA may investigate such other offence
which the accused is alleged to have committed
provided there is a connection of such other offence
with the Scheduled Offence.
7.6 The question is, whether, the expression
"the accused" in Section 8 of the NIA Act has to refer
to only the accused in respect of whom a Scheduled
Offence is being investigated or it could include any
other accused whose name would emerge during the
course of investigation of a Scheduled Offence and
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who has committed an offence which has a
connection with the Scheduled Offence. In our view,
the expression "the accused" in Section 8 of the NIA
Act cannot be restricted in its meaning and
connotation to only the accused in respect of whom
investigation is being carried out pursuant to sub-
sections (4) and (5) of Section 6 of the NIA Act in
respect of a Scheduled Offence. It could also include
any other accused who has committed any other
offence provided that other offence committed by
any other accused has a connection or a nexus with
the Scheduled Offence which is detected during the
course of investigation of any Scheduled Offence.
More importantly, in the case of any other accused,
the offences alleged need not be Scheduled Offences,
it could be any offence but must necessarily have a
connection with the Scheduled Offence. In such an
event, on the basis of Section 8 of the NIA Act, a
report may be made to the Central Government
which can direct investigation against any other
accused (i.e., an accused other than the accused
who is being investigated) provided it has a
connection with the Scheduled Offence. In such a
contingency, the Central Government while invoking
sub-section (5) of Section 6 read with Section 8 of
the NIA Act can direct investigation of any other
accused alleging he has committed an offence which
is connected with the Scheduled Offence already
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being investigated. On such a direction by the
Central Government the NIA can assume jurisdiction
to investigate any other accused on the basis that he
has committed an offence which has to be
investigated along with the Scheduled Offence
already under investigation.
7.7 The reasons for holding so shall be
discussed. One reason being that Section 8 of the
NIA Act applies not only when it is acting under sub-
section (5) of Section 6 of the NIA Act; it also applies
to sub-section (4) of Section 6 of the NIA Act where
the Central Government acts on the receipt of a
report from the State Government when information
received by the officer-in-charge of the Police Station
relates to any Scheduled Offence and the State
Government has forwarded the report to the Central
Government. Then, the Central Government, having
regard to the gravity of the offence and other
relevant factors, if is of the opinion that the offence
is a Scheduled Offence and it is fit to be investigated
by the NIA, a direction would be issued to the NIA to
investigate the said Scheduled Offence. Irrespective
of the contingency under which the NIA is directed to
investigate a Scheduled Offence under Section 6,
Section 8 would apply. In either case, while carrying
out the investigation in respect of the accused
alleged to have committed a Scheduled Offence,
information may emerge that there are other
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accused who have committed any other offence
which is connected with the Scheduled Offence
committed by the accused in respect of whom
investigation is being made by the NIA on the basis
of Section 6 of the NIA Act.
7.8 Therefore, owing to the connection of any
other offence with the Scheduled Offence committed
by any other accused in respect of whom
investigation is necessary, steps could be taken to
investigate the said other accused also. This is
because the offence said to have been committed by
any other accused has a connection with the
Scheduled Offence. One cannot determine the
manner in which such information may emanate
while carrying out an investigation in respect of the
accused who is alleged to have committed a
Scheduled Offence and who may have also
committed any other offence (non-scheduled
offence) which could be along with any other accused
in respect of whom no direction may yet have been
issued to carry on an investigation by the NIA under
Section 6(5) of the NIA Act but exercise of
jurisdiction under Section 8 may become necessary.
Therefore, during the course of investigation of an
accused alleged to have committed a Scheduled
Offence, if, it emerges or it is detected that the said
accused along with any other accused has committed
other offence/s, then investigation with regard to any
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other offence committed by some other accused
along with the accused said to have committed the
Scheduled Offence could also be carried out by
requesting the Central Government for a direction to
investigate the other accused. Such other accused
may have committed an offence which has a
connection with the Scheduled Offence of the
accused who is being investigated and therefore
Section 8 provides such a contingency.
7.9 Therefore, the nexus or connection
between any other offence and the Scheduled
Offence is of critical importance and must be present
in order to enable the NIA to investigate any other
offence committed by an accused in connection with
the Scheduled Offence. The connection between a
Scheduled Offence and any other offence being
established would enable the NIA to investigate the
accused of committing any other offence which is
connected with the Scheduled Offence. Once there is
such a connection between a Scheduled Offence and
a non-scheduled offence then, for all practical
purposes the non-scheduled offence would come
within the connection of a Scheduled Offence.
Therefore, it is held that the accused who may have
committed a non-scheduled offence having a
connection with a Scheduled Offence can be
investigated by the NIA in respect of a non-
scheduled offence.
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7.10 It is reiterated that, while investigating
the accused regarding Scheduled Offences, if the NIA
submits a report about some other accused who may
have also committed certain offences connected with
the Scheduled Offences under investigation then, the
Central Government on a consideration of such a
report may exercise suo motu powers and direct the
NIA to also investigate the other accused also
provided the offences alleged against the other
accused are offences, having a connection with the
Scheduled Offence already under investigation. Thus,
on the aforesaid basis NIA would be enabled to also
carry out an investigation of any other accused who
has committed an offence connected with the
Scheduled Offence already being investigated. This
would be in the realm of a joint investigation into
Scheduled Offences which may have occurred in
different parts of the country but having a connection
with other offences also. Thus, the expression "the
accused" would have to be given an expansive and
enlarged meaning in the above context having
regard to the object and purpose of Section 8 of the
NIA Act and the context in which provision has to be
interpreted.
7.11 The word "the" used before a noun
"accused" in Section 8 of the NIA Act has a
particularizing effect, as opposed to "a" or "an".
However, "a" and "the" sometimes have to be
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interchangeably interpreted having regard to the
context in which it is found and in order to give it a
contextual connotation so as to advance the object
and purpose of the provision. Section 8 of the NIA
Act has to be given a purposive and meaningful
interpretation and one which would advance the
object of Section 6 and other provisions of the Act
and cannot be read in a curtailed and narrow fashion
as submitted by learned senior counsel for the
petitioner.
7.12 We have interpreted Section 8 of the NIA
Act in such a way that while investigating the
accused of a Scheduled Offence, any other accused
could also be investigated on the strength of Section
8 provided the following condition precedents are
applicable:
(i) the NIA is of the opinion that during an
investigation, any other accused who is alleged
to have committed an offence having a
connection with the Scheduled Offence has also
to be investigated. In other words, there is a
connection between the Scheduled Offence
under investigation and any other offence
committed by any other accused;
(ii) a report by the NIA is submitted
incorporating the aforesaid opinion to the
Central Government;
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(iii) the Central Government on consideration
of such a report, in exercise of its suo motu
powers under sub-section (5) of Section 6 read
with Section 8 of the NIA Act directs the
investigation to be carried out in respect of any
other accused also; and
(iv) the said investigation of any other accused
must be carried out jointly as far as practicable
with the investigation of the accused already
under progress owing to the connection
between the Scheduled Offence and any other
offence.
7.13 On a holistic reading of the Section 8, the
expression "the accused" cannot be restricted to only
the accused in respect of whom investigation is being
carried out by the NIA for any Scheduled Offence.
The NIA, which is carrying on an investigation into
any Scheduled Offence, can also investigate any
other offence which any other accused may have
committed provided such other offence is also an
offence connected with the Scheduled Offence under
investigation.
7.14 Thus, so long as the connection between
any offence committed by any other accused and the
Scheduled Offence committed by the accused in
respect of whom investigation has been handed over
by the Central Government to the NIA is established,
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the NIA would be empowered to conduct an
investigation of any other accused in respect of a
Scheduled Offence which is connected with the
Scheduled Offence committed by the accused in
respect of whom the Central Government has
handed over or directed the investigation to be
conducted by it. Therefore, the scope of the powers
of the NIA under Section 8 of the NIA Act has to be
interpreted expansively and not in a narrow manner.
7.15 While learned counsel for the petitioner
would submit that the correct course would be for
the NIA to add those accused under FIR No.20/2020
and FIR No.23/2020 as accused persons under the
NIA investigation rather than treating other offences
as connected, we find that such a course would lose
sight of the salutary statutory intent to investigate
and prosecute at a national level and, in particular,
Section 6(6) of the Act which clearly envisions culling
of any duplicity of investigation. By allowing the NIA
to investigate those accused under different FIRs
registered in different States, an enlarged scope is
provided to the investigation into the Scheduled
Offences.
7.16 As already noted in the preceding
discussion we must be alive to the statutory intent
for an actual realization of the statutory scheme. In
that regard, it is noteworthy that the Act, especially
Section 6 of the NIA Act, is offence-centric and not
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accused-centric. The Act revolves around effective
investigation of Scheduled Offences. Similarly, the
central concern of Section 8 of the NIA Act is defining
the scope of offences that can be investigated by the
NIA and on what basis and not who are the accused.
7.17 Additionally, we might also note that the
phraseology of Section 8 of the NIA Act also
establishes that the NIA can only widen its
investigation to a non-scheduled offence only 'while
investigating any Scheduled Offence'. Importantly,
the NIA has not been given unbridled power to
initiate investigation of a connected and non-
scheduled offence in the absence of an investigation
of any Scheduled Offence. In our opinion, this speaks
to the Parliament's wisdom to build safeguards within
the text of the NIA Act.
7.18 Therefore, the submission of learned
senior counsel Sri Dave to read Section 8 of the NIA
Act in a restrictive fashion and not expansively, does
not advance the object and purpose of the Act and
particularly Section 6 thereof and hence, is rejected.
16. If the same reasoning as observed by the Apex
Court in the case of ANKUSH while interpreting Section 8 of
the NIA Act is applied to Section 14, the Special court under
the NIA Act can try both scheduled and connected non-
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scheduled offences together. As stated supra, Section 8 and
Section 14 are akin to each other and if Section 8 allows
NIA to investigate connected offences, then Section 14
logically extends this power of trial, meaning to say that
once the case is before the Special Court, it can try both
NIA Act offences and related / connected IPC offences. For
example: A is charged under UAPA (NIA Act) offence and B
is charged under IPC for harboring A, Since the offences are
connected and if NIA is allowed to investigate under Section
8, then under Section 14, the Special Court can try both A
and B in the same trial. The ANKUSH judgment under
Section 8 strengthens the interpretation of Section 14 that
the NIA Special Court can try the offences connected with
the scheduled offence.
17. The law laid down by the Apex Court in the cases
of VIVEK GUPTA VS. CBI2 (VIVEK GUPTA), ESSAR
TELEHOLDINGS LIMITED VS. REGISTRAR GENERAL,
2
(2003) 8 SCC 628
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DELHI HIGH COURT3 (ESSAR TELEHOLDINGS LIMITED),
STATE THROUGH CBI VS. JITENDER KUMAR SINGH4
(JITENDER KUMAR SINGH), HCL INFOSYSTEM LIMITED
VS. CENTRAL BEAREAU OF INVESTIGATION AND
ANOTHER5 (HCL INFOSYSTEM LIMITED), KADIRI
KUNHAHAMMAD VS. STATE OF MADRAS6 (KADIRI
KUNHAHAMMAD) was that the special Judge while
exercising exclusive jurisdiction i.e., while trying any case
relating to the offences of a particular Act may also try any
offence other than the offence specified in the particular Act
with which the accused may, under the Code be charged at
the same trial. The learned Single Judge in the case of
SAYYED SOHEL TORVI VS. NATIONAL INVESTIGATING
AGENCY7 (SAYYED SOHEL TORVI) filed by the co-accused
on a coalesce of the decision rendered by the Apex Court
stated supra held that the petitioner therein being part of
the mob that had indulged in the acts which became
3
(2013) 8 SCC 1
4
(2014) 11 SCC 724
5
(2016) 9 SCC 281
6
AIR 1960 SC 661
7
W.P.NO.19091/2021
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punishable under IPC and UAPA in respect of the other co-
accused, could be charged in terms of Section 223 of the
Code and tried by the NIA Court.
18. For the foregoing reasons, the point framed for
consideration is answered holding that the NIA court has
jurisdiction to try the offences other than the scheduled
offences along with the other accused persons who have
been charge sheeted for the scheduled offences. The
offences charged against the petitioners is punishable under
the IPC, is connected with the scheduled offence and we are
of the considered view that the petitioners have not made
out any ground for interfering with the order passed by the
Special Court and there is no error committed by the
Special Court in declining to transfer the case from the
jurisdictional Special Court to the court having jurisdiction
to try IPC offences and accordingly, this court pass the
following:
ORDER
(i) Writ petition is dismissed.
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Per: Hon'ble Mr Justice Sreenivas Harish Kumar
I have perused the judgment prepared by Mrs.Justice
K.S.Hemalekha. While concurring with her view that the
petition deserves to be dismissed, I would like to add
further analysis.
2. The argument of Sri Mohammed Tahir is that
since the charge sheet indicates that petitioners have not
committed scheduled offences under the NIA Act, and they
are implicated of having committed only non-scheduled
offences, they cannot be tried in the Special Court along
with other accused against whom scheduled offences are
invoked. He has referred to charge sheet where the overt
acts of the petitioners are separately shown by the
investigator. Probably this could be the reason for the
argument put forth by Sri Mohammed Tahir.
3. But according to prosecution both scheduled and
non-scheduled offences were committed during the course
of incident, and therefore Sri P.Prasanna Kumar argued that
in view of Section 8 of the NIA Act, NIA can conduct
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investigation against such persons who are alleged to have
committed scheduled offences and who have committed
non-scheduled offences. And for the same reason the
Special Court by virtue of Section 14 of the NIA Act can
hold trial in relation to two categories of accused, as the
non-scheduled offences are connected with the incident of
scheduled offence being committed.
4. It is not possible to accept the argument of Sri
Mohammed Tahir. The incident is aftermath of some
derogatory statement that was posted on Face Book and
hurt the religious sentiments of one section of the society.
A large number of people gathered and took law into hands;
they went unruly and committed certain acts which
amounted to various offences including scheduled and non-
scheduled offences. Now, if the scope of Section 8 and
Section 14 of the NIA Act are considered, meaning
conveyed is that Section 8 confers power on the NIA to
investigate any other offence with scheduled offence. That
means there must be an allegation that the accused has
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committed not only scheduled offence but also non-
scheduled offence. Section 14 states that the Special Court
can try an accused against whom there are allegations of
having committed both scheduled offence and non-
scheduled offences, only rider commonly applicable to both
sections is that non-scheduled offence must be in
connection with scheduled offences. Considering the plain
language of the two Sections, it is possible to interpret that
they operate if the very same accused has committed
scheduled offence as also non-scheduled offence. Now the
judgment of the Supreme Court in Ankush has given
purposive interpretations to Sections 8 and 14 of the NIA
Act and it is not necessary to refer to the said decision once
again as Mrs. Justice K.S. Hemalekha has dealt with it in
detail. That apart when there are more than one accused
some of whom have committed scheduled offence and the
rest non-scheduled offence, it is not only by virtue of
Section 8 or Section 14 of the NIA Act as has been held in
Ankush, but by the reason of applicability of Section 223 of
Cr.P.C, two categories of accused can be charged and tried
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by the Special Court which has to follow the procedure
prescribed in Cr.P.C. In fact Section 14 of the NIA Act
states that the charges are to be framed in accordance with
Cr.P.C. If all the offences appear to have been committed in
relation to one transaction, Section 223 (d) of the Code of
Criminal Procedure has applicability. It states that persons
accused of different offences committed in the course of the
same transaction can be charged and tried together. To
apply proviso to Section 223 of the Code, numerous
persons charged with separate offences should not fall
within the categories (a) to (g) of Section 223. But this is
not the case here, and the petitioners answer the
requirement of clause (d) of Section 223.
5. As regards the question whether the common
object of the petitioners and other accused was same or
not, it is a matter of trial, nothing can be deciphered at pre-
trial stage. But one thing is clear that there was a common
reason for occurrence of incident. As it is found that
accusations of offences are traceable to the course of same
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transaction, the petitioners need to face trial in the Special
Court. There is no infirmity in the order impugned in this
petition. Petition deserves to be dismissed.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(K.S. HEMALEKHA)
JUDGE
SS/Ckl
