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2017 DIGILAW 456 (ALL)

HUSSNA v. NATIONAL INVESTIGATING AGENCY

2017-02-08

SATYENDRA SINGH CHAUHAN, VIRENDRA KUMAR II

body2017
JUDGMENT Hon’ble Satyendra Singh Chauhan, J.—Since common questions of facts and law are in involved in all the aforesaid criminal appeals, therefore, they are being heard together and decided by a common judgement. 2. Heard learned counsel for the appellants and Ms. Shikha Sinha, learned counsel for the National Investigating Agency as well as learned A.G.A for the State. 3. The appellants have proceeded to challenge the orders dated 4.5.2016 passed by Special Judge, N.I.A., Lucknow dismissing the applications of the appellants for discharge in S.T. No. 927 of 2015, State v. Hussna and others, in respect of the charge-sheet filed in Case Crime No. 964/2014 under Sections 121-A, 122, 216, 120-B IPC and Case Crime No. 965/2014 under Sections 13, 18, 21, 23, 38, 39 and 40 of the Unlawful Activities (Prevention) Act though later on the aforesaid case crimes were merged/re-registered as FIR No. R.C.-01/2015 N.I.A Delhi, under Sections 121-A, 122 IPC and 18/13/23 of the Unlawful Activities (Prevention) Act, Police Station - Kotwali City, District - Bijnore. 4. The facts in brief are that an FIR under Sections 121-A/122 IPC, Sections 18/13/23 of the Unlawful Activities (Prevention) Act, Sections 25 and 25/4 of the Arms Act and Section 4/5 of the Explosive Substance Act was lodged at Case Crime Nos. 964 to 968 of 2014 at Police Station- Kotwali City, District - Bijnore on 12th September 2014 at 16:50 hours in respect of an incident said to have taken place on 12th September 2014 at about 11:20 hours. The FIR was lodged by Sub Inspector Sri Pramod Singh Pawar against six unknown accused persons. The FIR was lodged on the basis of recovery memo wherein different explosives, gas cylinder, battery etc. were recovered. The FIR contained the allegation that at about 11:20 hours on 12th September 2014 blast took place in the house of Lilawati alias Leelo wife of Late Dhanno Singh Pal and heavy smoke was coming out from that house. Several persons arrived at the place of occurrence. On the information, the informant Inspector also reached the place of occurrence and he was told by the mob that some outsiders were living in the house on rent for two to two and a half months and they were not having any concerned with the persons of Mohalla. At the time of blast, six persons came out of the house. At the time of blast, six persons came out of the house. Amongst them, one person was seriously injured. All the accused persons took the injured person and went towards Gokalpur Chungi quickly. No one was allowed to enter inside the house and the spot was conserved safely. The then In-charge Inspector of Police Station Kotwali Shahar, Bijnore Sri Rakesh Paliwal was informed and it was requested to send the additional police force as well as the staff of Unit Field of Forensic Laboratory, Bijnore. After some time, Sri Rakesh Paliwal, In-charge Inspector reached at Mohalla Jattan B-4 at the house of Lilawati. In the meantime, field staff of Forensic Laboratory, Bijnore Sri Veer Raj Saini also reached alongwith his team. He opened the iron doors of the house. On entering the room, he found that smell of gunpowder was coming out. On the floor of the room, black colour powder was spread and a red colour gas cylinder, which was about 9 inches high and circumference was 18 inches, on that green tape was there and from that tape two wires were coming out and AP written on the elbow pipe kept near gas cylinder were recovered. Window panes were broken due to the blast. On the basis of the above recovery, Case Crime No. 964 of 2014 was registered under the different Sections of IPC. Apart from this, Case Crime Nos. 965 of 2014, 966 of 2014, 967 of 2014 and 968 of 2014 were also mentioned in the said FIR No. 590 of 2014. The FIR was also lodged for the offences under the Unlawful Activities (Prevention) Act (for short “the UAPA Act”) and the offences under the IPC as contemplated under Sections 121-A/122. 5. The local police proceeded to investigate the offences and charge-sheet was submitted. The investigation in regard to the offences under the UAPA Act was handed over to the Anti Terrorist Squad (for short “the ATS”) by the Inspector General of Police vide order dated 11.10.2014. The investigation in respect of the offences under the UAPA Act was handed over to Sri Rajesh Kumar Srivastava, Deputy Superintendent of Police, ATS and a team of Inspectors was also assigned to assist him in the investigation. It was also provided therein that the investigation will be supervised by the Additional Superintendent of Police, Head Quarters, ATS, Lucknow. The investigation in respect of the offences under the UAPA Act was handed over to Sri Rajesh Kumar Srivastava, Deputy Superintendent of Police, ATS and a team of Inspectors was also assigned to assist him in the investigation. It was also provided therein that the investigation will be supervised by the Additional Superintendent of Police, Head Quarters, ATS, Lucknow. Sri Rajesh Kumar Singh, C.O. City Bijnore, was handed over the investigation vide order dated 21.9.2014 by the Superintendent of Police, Bijnore. Charge-sheet was filed in the matter and the Chief Judicial Magistrate, Bijnore took cognizance of the charge-sheet filed in Crime No. 964/14 under Sections 120-B/201/216 IPC vide order dated 16.12.2014. The Chief Judicial Magistrate did not take any cognizance under Sections 121-A and 122 IPC in respect of the charge-sheet dated 14.12.2014. Sanction for prosecution was granted on 14.3.2015. Another charge-sheet was filed in Crime No. 964/14 under Sections 120-B/121-A and 122 IPC on 14.3.2015. On 14.3.2015, charge-sheet in Crime No. 965/14 was filed under Sections 13/18/21/23/38/39/40 of the UAPA Act. The Chief Judicial Magistrate, Bijnore on 16.3.2015 took cognizance on the aforesaid charge-sheet dated 14.3.2015. In Crime No. 964/14, charge-sheet was filed under the offence of the IPC. In Crime No. 965/14, initially three sections were there, which were 18/13/23 of the UAPA Act and during the course of investigation, the investigation was handed over to Sri Rajesh Kumar Singh, C.O. City, Bijnore vide order dated 21.9.2014 and thereafter, vide order dated 11.10.2014, the investigation was transferred to Rajesh Kumar Srivastava, Deputy Superintendent of Police, ATS, Lucknow, who filed charge-sheet under Sections 13/18/21/23/38/39/40 of the UAPA Act in Crime No. 965/14. 6. In pursuance to the order dated 24.4.2015 passed by the Under Secretary of Government of India, the investigation of the aforesaid crime has been transferred to the National Investigating Agency (for short “the NIA”). The NIA has registered the First Information Report as FIR No. RC-01/2015/NIA/DLI under Sections 121-A and 122 IPC, Section 25 of the Arms Act, Sections 18, 13 & 23 of the UAPA Act and Sections 4 & 5 of the Explosive Substances Act. Chief Judicial Magistrate after taking cognizance of the charge-sheet, committed the case to the Court of Session vide order dated 4.2.2015. Chief Judicial Magistrate after taking cognizance of the charge-sheet, committed the case to the Court of Session vide order dated 4.2.2015. The Sessions Court was proceeding with the matter and on the basis of information furnished on 12.9.2014 by the Officer-In-Charge and duly forwarded by District Magistrate and Superintendent of Police to the State Government and the State Government in turn forwarded the same to the Central Government. The Central Government took decision on 24.4.2015 to transfer the investigation to the NIA. Since the Sessions Judge was ceased with the matter and when the transfer order was placed before the Court, the Sessions Judge proceeded to transfer the case on 6.6.2015 to NIA Court. In NIA Court, the appellants proceeded to move the discharge applications, which have been dismissed vide orders dated 4.5.2016. 7. Submission of learned counsel for the appellants is that no charge-sheet could have been filed by the ATS or local police and if any charge-sheet has been filed by the ATS or local police, the same is without jurisdiction as contained in the National Investigation Agency Act, 2008 (for short “the NIA Act”). Proper Investigating Officer has not been appointed and therefore, if any investigation has been made by any officer, then the same is illegal. He has also submitted that NIA cannot continue with the trial on the basis of police report filed by the State Police wherein NIA has not done any investigation. The special Court is to be constituted by the State Government or the Central Government. The NIA Act contemplates that till the investigation is handed over to the NIA, the Officer-In-Charge of the police station will continue with the investigation and as in the present case, the ATS has investigated the present case and that too by the Additional Superintendent of Police, therefore, the same is illegal. Special Court was not established in accordance with Section 22 (1) of the NIA Act by the State Government when investigation was done by the State police. In those very circumstances, if cognizance has been taken and the documents, which have been filed before the Magistrate, cannot be taken into consideration and neither on that basis trial Court can proceed. 8. In those very circumstances, if cognizance has been taken and the documents, which have been filed before the Magistrate, cannot be taken into consideration and neither on that basis trial Court can proceed. 8. The aforesaid arguments of the learned counsel for the appellants have been strongly refuted by the learned counsel for the NIA and the learned AGA and it has been submitted that scheme of the NIA Act contemplates that till the matter is handed over to the NIA, the Officer-In-Charge will conduct the investigation. It has also been submitted that the local police on that basis had investigated the offences and submitted charge-sheet. Cognizance was taken by the Magistrate and thereafter, the case was committed to the Court of Session. The Court of Session was ceased with the matter and thereafter, the case was transferred to the special Court and thus, the entire records have been transferred to the special Court vide order dated 6.6.2015. Learned counsel submits that there is no illegality in the same and the local police has investigated the offence under the IPC whereas the ATS has investigated the offences under the UAPA Act. Decision was taken to transfer the investigation for the offences committed under the UAPA Act to the ATS vide order dated 11.10.2014. The investigating agencies have committed no illegality in investigating the offences and neither the investigation conducted by them can be said to be without jurisdiction. The special Court has been constituted by the Central Government and cognizance has been taken by the special Court in accordance with the provisions of the NIA Act. The argument of the counsel for the appellants is misconceived and the appeals deserve to be dismissed as the appellants have failed to establish any genuine ground on the basis of which they can claim discharge. Learned counsel has lastly submitted that in the case of Bahadur Kora and others v. State of Bihar, 2015 (2) MWN (Cr.) 305 (FB) (Pat), Full Bench of the Patna High Court has laid down the law to the effect that in case any investigation has been conducted by the State police prior to handing over the matter to the NIA, then no illegality can be attributed to the same. It is also submitted that the NIA has registered the RC and is proceeding with the investigation and if any need is felt, then the NIA will file a supplementary charge-sheet in the matter. 9. We have heard learned counsel for the parties and perused the record. 10. Argument of the counsel for the appellants that the provisions of the NIA Act will not be applicable in the present case is devoid of merit as Section 6 of the NIA Act itself contemplates that on receipt of information and recording thereof under Section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. The State Government in turn will forward the report to the Central Government and the Central Government will take a decision on the basis of information made available by the State Government or received from other sources within fifteen days from the date of receipt of the report whether the offence is a Scheduled Offence or not and having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. If the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. Sub-section (5) of Section 6 of the NIA Act provides that notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may suo motu direct the Agency for investigating the said offence. Sub-section (6) of Section 6 of the NIA Act further provides that where any such direction has been given under Sub-section (4) or Sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transfer the relevant documents and records to the Agency. Sub-section (7) of Section 6 of the NIA Act stipulates that for removal of doubts, it is made clear that till the agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue with the investigation. 11. Sub-section (7) of Section 6 of the NIA Act stipulates that for removal of doubts, it is made clear that till the agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue with the investigation. 11. The aforesaid provision goes to indicate that till the matter is handed over to the NIA, the officer-in-charge of the police station will continue with the investigation and he can also file charge-sheet, which has been filed in the present case and the Court can also take cognizance, which has been taken in the present case. Cognizance has been taken by the Chief Judicial Magistrate in respect of the charge-sheet filed under the IPC, but so far the offences under the UAPA Act are concerned, the charge-sheet has been filed by the ATS and that too after transfer of investigation to the ATS vide order dated 11.10.2014. A proper investigating officer was appointed of the rank of Deputy Superintendent of Police of ATS with the supervisory control of the Additional Superintendent of Police, Head Quarters, ATS, Lucknow and certain Inspectors have also been allowed to assist the Deputy Superintendent of Police. This itself goes to indicate that the investigation has been handed over to the Deputy Superintendent of Police. The charge-sheet filed by the Deputy Superintendent of Police, ATS was also taken note of by the Chief Judicial Magistrate and the case was committed to the Court of Session. The matter was pending at the level of the Sessions Judge till the information sent by the officer-in-charge through the District Magistrate and the Superintendent of Police to the State Government and the State Government in turn complying with the provisions of Section 6 of the NIA Act forwarded the information to the Central Government, which took a decision to transfer the investigation to the NIA on 24.4.2015. After the aforesaid order was passed by the Central Government, the State Government in pursuance thereof passed an order on 30.4.2015 and the Court of Additional District Judge, which was proceeding with the trial, transferred the case to the NIA Court on 6.6.2015. After the aforesaid order was passed by the Central Government, the State Government in pursuance thereof passed an order on 30.4.2015 and the Court of Additional District Judge, which was proceeding with the trial, transferred the case to the NIA Court on 6.6.2015. The aforesaid facts go to indicate that the investigating agencies have proceeded in accordance with the provisions of Section 6 of the NIA Act and Section 6 is very clear in that respect that till investigation is taken up by the NIA, the officer-in-charge of the police station will continue with the investigation. Section 6 of the NIA Act itself makes it clear that the proceedings shall go on. The Section does not create any rider in respect of on going proceeding. Supposing the Central Government takes a decision not to transfer the case to the NIA, then the case will continue in the Court of Sessions Judge so that the proceedings are not to be stalled or trial cannot be put in limbo on account of the aforesaid order, which has been passed at later point of time on 24.4.2015 by the Central Government. 12. The only requirement for transferring the case by the Central Government is that the Central Government will take a decision and after that decision, the offence being a Scheduled Offence will be investigated by the NIA. The Central Government even suo motu can order for investigation by the NIA. In the present case, it is to be noted that the investigation has been concluded by the State police and the charge-sheet has been filed. The ATS has also filed charge-sheet and thereafter decision has been taken by the Central Government on 24.4.2015 for transferring the investigation. Sessions Court as and when was apprised with the aforesaid fact proceeded to transfer the case to the special Court on 6.6.2015. Transfer of the case to the special Court under the NIA Act has been put to challenge before this Court. Special Court has been constituted by the Central Government and the matter has been transferred to the special Court. The investigation is still going on by the NIA and R.C. has been registered by the NIA. It is submitted that if any material evidence is collected, the same would be filed before the special Court by way of supplementary charge-sheet. Special Court has been constituted by the Central Government and the matter has been transferred to the special Court. The investigation is still going on by the NIA and R.C. has been registered by the NIA. It is submitted that if any material evidence is collected, the same would be filed before the special Court by way of supplementary charge-sheet. Supplementary charge-sheet can be filed as a consequence of transfer of the case to the NIA. The NIA is an agency, which has wide infrastructure and national and international connection and on that basis the NIA can go ahead in collecting more additional evidence in comparison to the State Agencies i.e. the local police or the ATS. Stoppage of investigation through the NIA appears to be not justified and if at all required, a supplementary charge-sheet as contemplated under Section 173 (8) Cr.P.C. can always be filed. The decision rendered in the case of Bahadur Kora (supra) by the Full Bench of Patna High Court has laid down the law in this regard and has settled that in case any investigation has been done by the State Government before handing over investigation to the NIA, then there is no illegality in the same. 13. Learned counsel for the appellants has placed reliance upon the judgement rendered by the Apex Court in the case of State of M.P. v. Chunnilal @ Chunni Singh, Criminal Appeal No. 943 of 2003, but the said case law does not help the appellants rather a distinction has been drawn in the aforesaid case where the offence has fallen under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and IPC. The Court can proceed with the offences under the IPC and looking to the fact that under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as well as under the IPC, the proceedings emanated, the judgement rendered by the High Court was set aside. Learned counsel for the appellants has also placed reliance upon the cases of Vinay Tyagi v. Irshad Ali alias Deepak and others, 2013 Crl LJ 754 and State of Andhra Pradesh v. Md. Hussain, 2014 Crl LJ 44, but the aforesaid cases have been rendered in different context. Learned counsel for the appellants has also placed reliance upon the cases of Vinay Tyagi v. Irshad Ali alias Deepak and others, 2013 Crl LJ 754 and State of Andhra Pradesh v. Md. Hussain, 2014 Crl LJ 44, but the aforesaid cases have been rendered in different context. The judgements relied upon by the appellants’ counsel rendered in the cases of State of Punjab v. Davinder Pal Singh Bhullar and others with Sumedh Singh Saini v. Davinder Pal Singh and others, [2012 (1) JIC 833 (SC)] is also beside the point and does not help the appellants. The case of Hussein Ghadially alias M.H.G.A. Shaikh and others v. State of Gujarat, (2014) 8 SCC 425 , is also on a different point and the case of the appellants is not attracted in respect of the said case law. 14. The grounds raised by the appellants’ counsel, therefore, are not sufficient to allow these appeals. The respondents have proceeded in accordance with law. 15. So far the sanction of the prosecution is concerned, the same has already been granted by the Government and Sub-section (3) of Section 22 of the NIA Act clearly provides that jurisdiction conferred by this Act on a special Court shall, until a special Court is constituted by the State Government under Sub-section (1) of Section 22 of the NIA Act in the case of any 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. Sub-section (4) of Section 22 of the NIA Act provides that 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, would be required to be held before the special Court, shall stand transferred to that Court on the date on which it has been constituted. 16. Section 10 of the NIA Act also contemplates that save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. 16. Section 10 of the NIA Act also contemplates that save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force. Thus, contention of the counsel for the appellants does not merit any acceptance. 17. All the criminal appeals are devoid of merit. They are accordingly dismissed.