The Jammu & Kashmir High Court recently comprising of a bench of Justice Sanjay Dhar observed that a case pertaining to scheduled offence investigated by the NIA could be tried only by a Special Court that has been constituted by the Central Government under Section 11 of The National Investigation Agency Act, 2008. (Davinder Singh v. Union of India and others)
Facts of the Case
The plea was filed under S. 407 of CrPC seeking transfer of challan from the Special Court (3rd Additional Sessions Judge, Jammu to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar for trial.
The National Investigation Agency had submitted a challan against him(DySP Davinder Singh) and other accused alleging commission of offences under Sections 120-B, 121, 121-A & 122 IPC and Sections 17,18, 18-B, 19, 20, 23, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) & 35 of Arms Act read with Sections 4 & 5 of the Explosive Substances, Act before the Court of Special Judge (3rd Additional Sessions Judge) Jammu.
The transfer of the challan had been sought on the ground that most of the witnesses whose statements were yet to be recorded by the learned trial Court pertain to Kashmir division and, as such, it would be convenient to hold the trial of the case at Srinagar.
It was further contended that the petitioner is a resident of Indra Nagar, Srinagar where his family is also residing and that he had no relation at Jammu where the trial is to be conducted.
It was averred that some of the lawyers at Jammu had refused to accept the brief of the petitioner and it would be very expensive for the petitioner to engage a Lawyer from Kashmir to defend the case on his behalf at Jammu.
Contention of the parties
The counsel for petitioner contended that most of the witnesses whose statements are yet to be recorded in trial Court pertain to Kashmir division and it would be convenient to hold the trial at Srinagar. It is further contended that the petitioner is a resident of Indra Nagar, Srinagar he has no relation to Jammu where the trial is to be conducted.
The counsel for respondent contended that there is no ground for transfer of the case from Jammu to Srinagar. There is only one Special Court in whole of the Union Territory, which has been designated as a Special Court in terms of S.11 of the NIA Act as such the challan which is subject matter of the instant petition cannot be tried by any other Court in Union Territory of Jammu and Kashmir.
Courts Observation & Judgment
The Court at the very outset noted that a case pertaining to scheduled offence investigated by the NIA could be tried only by a Special Court that has been constituted by the Central Government under Section 11 of The National Investigation Agency Act, 2008.
Further, the Court perused Section 13 of The National Investigation Agency Act, 2008 and observed that the provision mandated that notwithstanding anything contained in the CrPC, every scheduled offence investigated by the NIA has to be tried only by the Special Court within whose local jurisdiction it was committed.
It may be noted that this Provision (Section 13 of The National Investigation Agency Act, 2008) further provides that the High Court has the power to transfer a case pending before a Special Court situated in the State to any other Special Court within the State.
Lastly, the Court also noted that only one Special Court in terms of Section 11 of the NIA Act had been constituted for the whole of the Union Territory of Jammu and Kashmir.
The court said, “There is no other Special Court (apart from the one at Jammu), constituted by the Central Government under Section 11 of the Act, which is located within the jurisdiction of this High Court”.
The Court also ruled that the Special Court constituted (by the State Government) under Section 22 of the Act was empowered to try the cases relating to offences under scheduled enactments which have been investigated by the investigating agency of the State Government.
In this backdrop, the Court held that since the case against Singh had been investigated by the National Investigating Agency, the challan couldn’t be tried by the Special Court at Srinagar (which is a State Government designated Special Court).
The Court added, “It would be legally impermissible to transfer the said challan from the Special Court, Jammu to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar”.
Thus, the Court finding no merit in the petition dismissed the petition.
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