Home » Naser Bin Abu Bakr Yafai v. State of Maharashtra

Naser Bin Abu Bakr Yafai v. State of Maharashtra

National Investigation Agency Act, 2008 – Section 10 there is no embargo on the State Investigating Agency to investigate a scheduled offence, which would include offences under the UAPA.

In accordance with Section 6(7), the ATS Nanded was not barred from continuing with its investigation till the NIA Mumbai actually took up the investigation. Further, the CJM, Nanded could have committed the case to trial before the ASJ, Nanded upon the filing of charge-sheet by the ATS Nanded since they were the designated Courts for the ATS Nanded and no Special Court had been designated by the Government of Maharashtra under Section 22 of the NIA Act. [Paras 48 – 50]

Investigation – An investigation commences upon the receipt of information by the police which discloses the commission of a cognizable offence. However, the mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information. [Para 37]

National Investigation Agency Act, 2008 – “Special Courts” – The exclusive jurisdiction which is conferred on the Special Court to try a scheduled offence investigated by the NIA is amplified by the non-obstante provision which overrides the provisions contained in the CrPC.

Section 11(1) of the NIA Act empowers the Central government to constitute Special Courts “for the trial of scheduled offences”. Under sub-Section (1) of Section 13, every scheduled offence which has been investigated by the NIA shall be tried only by the Special Court within whose local jurisdiction the offence was committed. The exclusive jurisdiction which is conferred on the Special Court to try a scheduled offence investigated by the NIA is amplified by the non-obstante provision which overrides the provisions contained in the CrPC. Section 22(1) empowers the State government to constitute Special Courts for the trial of offences under the enactments which have been specified in the Schedule to the NIA Act, and which have been investigated by the State Investigative Agency. [Para 32]

National Investigation Agency Act, 2008 – It is the duty of the officer in-charge of the police station to continue the investigation till the NIA actually takes up the investigation of the case.

Therefore, what emerges is that upon the issuance of a direction under subSections (4) and (5) of Section 6, the State government and a police officer of the State government investigating the offence are not to proceed with the investigation and have to forthwith transmit the documents and records to the NIA (Section 6(6)) but equally, it is the duty of the officer in-charge of the police station to continue the investigation till the NIA actually takes up the investigation of the case (Section 6(7)). In other words, the power of the officer in-charge of the police station to continue with the investigation is denuded upon the issuance of a direction under sub-Sections (4) or (5) of Section 6 and the NIA actually taking up the investigation of the case. Thus, both the issuance of directions under sub-Sections (4) and (5) of Section 6 and the NIA actually taking up the investigation of the case would result in the power of the officer in-charge of the police station being denuded. Until then, the power of the State government to investigate and prosecute any scheduled offence, by virtue of the provisions of Section 10, is preserved. [Para 27]

National Investigation Agency Act, 2008 – Section 6 – Interpretation of – Investigation of Scheduled Offences – As a consequence, sub-Section (7) of Section 6 imposes a duty on the officer in-charge of the police station to continue the investigation till the NIA actually takes up the investigation of the case. The taking up of the investigation by the NIA is evidently in pursuance of the directions issued under sub-Sections (4) or (5) of Section 6. Having regard to the seriousness and gravity of the scheduled offences under the NIA Act, the continuation of the investigation by the officer in-charge of the police station is not a matter of discretion but a mandate imposed by the peremptory words employed in sub-Section (7) of Section 6. [Para 23]

National Investigation Agency Act, 2008 – Section 7 – Power to transfer investigation to State Government – Relationship between the State Investigation Agencies and the NIA – Section 7 indicates that while investigating an offence under the NIA Act, the NIA may, having regard to the gravity of the offence and other relevant factors, either: (i) Request the State government to associate itself with the investigation, if it is expedient to do so; or (ii) Transfer the case to the State government for investigation and trial of the offence with the previous approval of the Central government. Section 9 mandates that the State government shall extend all assistance and cooperation to the NIA for the investigation of scheduled offences. [Paras 24 & 25]

National Investigation Agency Act, 2008 – Section 10 – Power of State Government to investigate Scheduled Offences – The plain language of Section 10 indicates that unless there is a contrary provision in the NIA Act, nothing contained in it would 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. Hence, unless the power which is entrusted to the State government by Section 10 to investigate (and prosecute) a scheduled offence under the NIA Act is taken away by a provision of the same statute, that power is preserved by Section 10. [Para 26]

Court : SUPREME COURT OF INDIA
Bench : Dr. Dhananjaya Y. Chandrachud, J; Vikram Nath, J; B.V. Nagarathna, J.
Case Law : Naser Bin Abu Bakr Yafai v. State of Maharashtra
Case Number : Criminal Appeal No. 1165 – 1166 of 2021 October 20, 2021

For Petitioner(s) :Mr. Farrukh Rasheed, AOR Mr. Abu Bakr Sabbaq, Adv. Mr. Zahid Hussain, Adv. Mr. Satya Mitra, AOR
For Respondent(s) :Mr. K.M. Nataraj, ASG Mr. S.V. Raju, ASG Mr. Kanu Agrawal, Adv. Ms. Sairica Raju, Adv. Ms. Swati Ghildiyal, Adv. Mr. Zoheb Hussain, Adv. Mr. B. V. Balaram Das, AOR Mr. Rahul Chitnis, Adv. Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv.

Case Link : https://pdf.caselaw.in/sc/2021/10/446/

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