Transfer of challan triable by Special Court constituted U/S.11 of the NIA Act to Special Courts constituted under other sections of Act is not allowed: High Court of Jammu And Kashmir

Sr. No. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Reserved on 06.04.2021 Pronounced on : 12.04.2021 TrpNo. 11 2020 CrlM No. 995 2020 CrlM No. 1567 2020 …Petitioner(s) Ms. Rehana Fayaz Advocate Davinder Singh Through: Mr. Z. A. Qureshi Sr. Advocate with v s Union of India and others Through: Mr. Vishal Sharma ASGI Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE ORDER 1. …. Respondent(s) The petitioner has filed the instant petition under Section 407 of Code of Criminal Procedure seeking transfer of challan pending against the petitioner from the Special Court Srinagar for trial. It is averred in the petition that National Investigation Agency has submitted a challan against the petitioner and other accused under Section 173of Cr. P. C alleging commission of offences under 2 Trp(Crl) 11 2020 Sections 120 B 121 121 A & 122 IPC and Sections 17 18 18 B 19 20 23 38 39 & 40 of Unlawful Activities Act 1967 and Section 25(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 aforesaid challan to the Special Court Additional Sessions Judge TATA POTA) Srinagar has been sought on the ground that most of the witnesses whose statements are 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 is further contended that the petitioner is a resident of Indra Nagar Srinagar where his family is also residing and that he has no relation at Jammu where the trial is to be conducted. It is averred that some of the lawyers at Jammu have 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. For the aforesaid reasons the petitioner has sought the transfer of the challan from Jammu to Srinagar. The petition has been resisted by Investigating Agency by filing reply thereto. In their reply respondents No. 1 and 2 have contended that there is no ground for transfer of the case from Jammu to Srinagar. It is further contended that merely because some of the witnesses to be examined in the case are from Kashmir Valley does not offer a ground for transfer of challan from Jammu to Srinagar. It is further contended that in terms of Article 39 A of the Constitution of India the petitioner is entitled to free legal aid in case he 3 Trp(Crl) 11 2020 is unable to engage a counsel in Jammu. Lastly it has been contended that there is only one Special Court in 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 is subject matter of the instant petition cannot be tried by any other Court in Union Territory of Jammu and Kashmir . I have heard learned counsel for the parties and perused the material on record. It is an admitted case of the parties that the case in which the petitioner is facing trial before the Special Court at Jammu has been investigated by National Investigating Agency which is an agency of the Central Government. Section 11 of the NIA Act empowers the Central Government to constitute one or more Special Courts for trial of scheduled offences. Section 13 of the same Act provides for jurisdiction of the Special Court. It reads as under: “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 4 Trp(Crl) 11 2020 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 applicant is the Attorney General for India be supported by an affidavit or affirmation.” From a perusal of the aforesaid provision it is clear that notwithstanding anything contained in the Criminal Procedure Code every scheduled offence investigated by the NIA is to be tried only by the Special Court within whose local jurisdiction it was committed. It further provides that High Court has power to transfer a case pending before a Special Court situated in the State to any other Special Court within the Thus it is clear that a case pertaining to scheduled offence investigated by the NIA can be tried only by a Special Court that has been constituted by the Central Government under Section 11 of the Act. Transfer of such a case can be made to only to any other Special Court constituted by the Central Government under Section 11 of the Act and 5 Trp(Crl) 11 2020 not to any other Special Court constituted under any other provision of the Act. Contesting respondents along with their reply have placed on record a copy of the Notification bearing No. S.O 4154according to which the Central Government has 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 sub section of the Section 11 of the NIA Act for trial of the Scheduled Offences investigated by the National Investigation Agency. The notification further provides that jurisdiction of the Special Court extends throughout the Union Territory of Jammu and Kashmir. It is thus clear that only one Special Court in terms of Section 11 of the NIA Act has been constituted for whole of the Union Territory of Jammu and Kashmir and there is no other Special Court constituted by the Central Government under Section 11 of the Act which is located within the jurisdiction of this High Court. Learned counsel for the petitioner has vehemently argued that there is another Special Court constituted at Srinagar which can also try 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 Court of Additional District and Sessions Judge TATA POTA) Srinagar has been designated as a Special Court for Kashmir province for the purposes of trial of offences under the Unlawful ActivitiesAct 1967. 6 Trp(Crl) 11 2020 The contention of learned counsel for the petitioner that the Special Court at Srinagar is empowered to hear the cases investigated by the National Investigation Agency appears to be misconceived. The Special Court at Srinagar has been constituted by the State Government in exercise of its power under Section 22 of the NIA Act. Section 22 of the Act empowers the State Government to constitute one or more Special Courts for trial of offences under the enactments specified in the Schedule. It reads as under: “22. Power of State Government to constitute Special Courts. 1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. 2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub section and shall have effect subject to the following modifications namely i) references to "Central Government" in sections 11 and 15 shall be construed as references to State Government ii) reference to "Agency" in sub section of section 13 shall be construed as a reference to the "investigation agency of the State Government" iii) reference to "Attorney General for India" in sub sectionof section 13 shall be construed as reference to Advocate General of the State". 3) The jurisdiction conferred by this Act on a Special Court shall until a Special Court is constituted by the State Government under sub section in the case of any 7 Trp(Crl) 11 2020 offence punishable under this Act notwithstanding anything contained in the Code be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter. 4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act which would have been required to be held before the Special Court shall stand transferred to that Court on the date on which it is constituted.” From a perusal of sub clause of Clause of the aforesaid provision it is clear that it bears reference to investigation agency of the State Government and not to National Investigating Agency. Thus in other words means it that the Special Court constituted under Section 22 of the Act is empowered to try the cases relating to offences under scheduled enactments which have been investigated by the investigating agency of the State Government. Therefore 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 have been investigated by the National Investigating Agency. That being the case the challan which is subject matter of the present transfer petition cannot be tried by the Special Court at Srinagar and as such it would be legally impermissible to transfer the said challan from the Special Court Jammu to the Special CourtSrinagar. 8 Trp(Crl) 11 2020 As already noted there is no other Special Court within the jurisdiction of High Court of Jammu and Kashmir except the one at Jammu therefore even if it is assumed that the petitioner has any ground for seeking transfer of the challan to any Court other than the one at Jammu this Court cannot come to his rescue. For the forgoing reasons I find no merit in this petition. The same is accordingly dismissed. JUDGE Whether the order is speaking: Whether the order is reportable: 

Summary: Scheduled offense investigated by the NIA can be tried only by a Special Court that has been constituted by the Central Government under Section 11 of the Act. Only one Special Court in terms of Section 11 of the NIA Act has been constituted for whole of the Union Territory of Jammu and Kashmir and there is no other Special Court, constituted by the Central Government under Section 11 of the Act, which is located within the jurisdiction of this High Court.This was held in Davinder Singh V. Union of India and others.[Trp (Crl) No. 11/2020] in the High Court of Jammu And Kashmir by single bench consisting of JUSTICE SANJAY DHAR. Facts are that NIA has submitted a challan against the petitioner and other accused U/S.173 (2) of Cr. P. C alleging commission of offenses under IPC, UAPA, Arms Act and Explosive Substances, Act before the Court of Special Judge Jammu. The petitioner U/S.407 of CrPC seeking transfer of from the Special Court Jammu to the Special Court in Srinagar for trial. 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. The court made reference to Section 11 of the NIA Act which empowers the Central Government to constitute one or more Special Courts for trial of scheduled offenses. Section 13 of the same Act provides for jurisdiction of the Special Court. The Court interpreted of law under section 11, 13 and 22 of the  NIA act and observed that, “A case pertaining to scheduled offense investigated by the NIA can be tried only by a Special Court that has been constituted by the Central Government under Section 11 of the Act. Transfer of such a case can be made to only 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.”