Excerpt
The Petitioner has filed the present petition under Section 407 of Code of Criminal Procedure seeking transfer of challan pending against him from the Special Court (3rd Additional Sessions Judge), Jammu to the Special Court (Additional Sessions Judge, TATA/POTA), Srinagar, for trial. However, the High Court dismissed the petition saying that it would be legally impermissible to do so.
Background
A challan was submitted against the Petitioner and other accused by the National Investigation Agency under Section 173 (2) of Cr. P. C 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 Petitioners sought for transfer of the challan mentioned above to the Special Court (Additional Sessions Judge, TATA/POTA), Srinagar 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 was a resident of Indra Nagar, Srinagar, where his family was also residing and that he had no relation at Jammu where the trial was to be conducted. It was asserted that some of the lawyers at Jammu have refused to accept the Petitioner’s brief, and it would be costly for the Petitioner to engage a Lawyer from Kashmir to defend the case on his behalf at Jammu.
The Respondent Investigating Agency resisted the petition by filing a reply thereto and contended that there was no ground for transferring the case from Jammu to Srinagar. It was further contended that merely because some of the witnesses to be examined in the case were from Kashmir Valley did not offer a ground for the transfer of challan from Jammu to Srinagar. It was further contended that in terms of Article 39- A of the Constitution of India, the Petitioner was entitled to free legal aid, in case he was unable to engage a counsel in Jammu. Lastly, it had been contended that there was only one Special Court in the whole of the Union Territory of Jammu and Kashmir, i.e., 3rd Additional Sessions Court, Jammu, which has been designated as a Special Court in terms of Section 11 of the National Investigation Agency Act, and as such the challan which was the subject matter of the instant petition cannot be tried by any other Court in Union Territory of Jammu and Kashmir.
Arguments Before the Court
The learned counsel appearing for the Petitioner argued that another Special Court constituted at Srinagar can also adjudicate the cases investigated by the National Investigation Agency. He has placed on record a copy of the Notification SRO 149 dated 01.03.2019, where under the Court of Additional District and Sessions Judge (TATA/POTA), Srinagar has been designated as a Special Court for Kashmir province for the trial of offences under the Unlawful Activities (Prevention) Act 1967.
On the other hand, the Respondent Investigating Agency contended that there was no ground for transferring the case from Jammu to Srinagar. Along with the contentions mentioned above, they placed on record a copy of the Notification bearing No. S.O 4154 (E), according to which the Central Government, in consultation with the Chief Justice of Jammu and Kashmir, designated the Court of TATA/POTA at Jammu as a Special Court for the purposes of subsection (1) of Section 11 of the NIA Act for the trial of the Scheduled Offences investigated by the National Investigation Agency.
Court’s Observation
The Court heard the learned counsel for the parties and perused the material on record. The Court referred to Section 11 and Section 13 of the NIA Act and observed that a case pertaining to a scheduled offence investigated by the NIA could be tried only by a Special Court constituted by the Central Government under Section 11 of the Act. Transfer of such a case can only be made to any other Special Court constituted by the Central Government under Section 11 of the Act and not to any other Special Court constituted under any other provision of the Act.
The Court further perused the copy of the Notification bearing No. S.O 4154 (E) placed on record by the Respondents and observed 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, and there was no other Special Court, constituted by the Central Government under Section 11 of the Act, which was located within the jurisdiction of this High Court.
The Court also perused the copy of the Notification SRO 149 dated 01.03.2019, put on record by the Petitioners’ learned counsel, and observed his contention that the Special Court at Srinagar was empowered to hear the cases investigated by the NIA appears to be misconceived. Furthermore, the Court observed that the Special Court constituted under Section 22 of the Act is empowered to try the cases relating to offences under scheduled enactments investigated by the investigating agency of the State Government and not by NIA. Consequently, the Court held that the Special Court constituted at Srinagar in terms of SRO 149 lacks inherent jurisdiction to try the cases pertaining to offences under scheduled enactments, which the National Investigation Agency has investigated.
Court’s Decision
The Court held that the Special Court cannot try the challan at Srinagar and that 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. It further said that since there was no other Special Court within the jurisdiction of High Court of Jammu and Kashmir except the one at Jammu, so, even if it was assumed that the Petitioner has any ground for seeking transfer of the challan to any Court other than the one at Jammu, this Court could not come to his rescue and dismissed the petition.
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