Libertatem Magazine

SC: State Police Must Continue Investigation of a Schedule Offence Till NIA Takes Over

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According to the Supreme Court, the State Police must investigate a Schedule Offence until the National Investigation Agency takes over the investigation.

Facts of the Case

The Antiterrorism Squad arrested Naser Bin Abu Bakr Yafai and three others after receiving information that he had been contacting members of the Islamic State /Islamic State of Iraq and Syria /Islamic State of Iraq and Levant/Daesh, terrorist organizations banned by the United Nations and the Indian Government.

NIA was directed to take over further investigation by the Union Ministry of Home Affairs on 8 September 2016. In any event, the ATS continued its investigation and filed charges against the aforesaid persons on 7 October 2016.

CJM, Nanded took cognizance of the offence and committed the case to Nanded’s ASJ court on 18 October 2016. It was announced on 8 December 2016 that the ATS Nanded had handed over the case files to the NIA Mumbai.

Arguments Advanced

In an application filed before ASJ, Nanded, on 21 October 2016, Naser Bin Abu Bakr Yafai invoked section 167(2) of the CrPC. It was his contention that the UAPA offences are scheduled offenses under the NIA Act. Therefore, he argued that the CJM, Nanded had no jurisdiction to order remand, to take cognizance, and pass an order committing the proceedings to the Nanded ASJ since it was not a Court established under Sections 11 or 22 of the NIA Act.

The High Court upheld the order and allowed NIA’s applications for transfer of records and proceedings from the ASJ, Nanded to the NIA Special Court, Mumbai on the basis that NIA Mumbai was undertaking further investigation of the case.

Observations by the Court 

It was observed by the Supreme Court that the State Police must continue an investigation of a scheduled offense until the National Investigation Agency takes over the investigation.

Court observed that ATS Nanded had a duty to actively pursue the investigation until NIA Mumbai took over the investigation. Although the case was renumbered by NIA Mumbai, the power of ATS Nanded to continue the investigation was not taken away.

Court’s Order

The Bench consisted of Justices DY Chandrachud, Vikram Nath, and BV Nagarathna. 

The Court held that It is critical that there is no lapse in investigation between the issuance of a direction and the actual taking up of the investigation by the NIA, to the detriment of the interests of national security associated with enacting the legislation. In addition, the court stated that mere renumbering of the NIA’s case did not deprive the State Police (ATS) of the right to carry out their investigation.

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