An investigation is an important part of the criminal justice system. “Investigation” is the first step taken once a crime is committed or information about the commission of an offence is received by a police officer. The goal is to find the perpetrator and bring him to trial so that he can be punished according to the relevant provisions of the law.
Does the State Police have the duty to continue its investigation until the NIA takes over?
The Supreme Court has held that the State Police is obligated to continue investigating a scheduled offence until the National Investigating Agency (NIA) takes it over. According to the Court, no interval in the investigation should take place as that can prove detrimental to the interests of national security. The court has also held that merely renumbering the case that is filed by the NIA will not result in the State Police losing its power to continue the investigation of the case.
Supreme Court of India
Naser Bin Abu Bakr Yafai vs The State Of Maharashtra on 20 October, 2021 Author: Hon'Ble Dr. Chandrachud
Bench: Hon'Ble Dr. Chandrachud, B.V. Nagarathna
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 1165 of 2021
Naser Bin Abu Bakr Yafai
Versus
The State of Maharashtra & Anr.
With
Criminal Appeal No 1166 of 2021
JUDGMENT
Dr Dhananjaya Y Chandrachud, J This judgment has been divided into sections to facilitate analysis. They are:
A Facts
B Submissions
C Provisions of the NIA Act
D Continuation of investigation by the ATS Nanded E
Signature Not VerifiedCJM, Nandeds jurisdiction for remand and committal to trial Digitally signed by Sanjay Kumar F Conclusion Date: 2021.10.20 14:30:21 IST Reason:
A. Facts
1 This batch of two appeals arises from a judgment dated 5 July 2018 of a Division Bench of the High Court of Judicature at Bombay.
2 On 14 July 2016, an FIR 1 WAS registered under Sections 120-B and 471 of the Indian Penal Code 1860 2 read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act 1967 3 and Sections 4, 5 and 6 of the Explosive Substances Act 1908 4. It was registered with the Anti-Terrorism Squad 5 at the Kala Chowki Police Station Mumbai on the basis of written information provided by Manik Vitthal Rao Bedre 6, against two persons: (i) Naser Bin Abu Bakr Yafai (the appellant in the first of the two appeals 7); and (ii) Farooq (who was residing in Syria). The complaint alleged that the ATS had received source information that Naser Bin Abu Bakr Yafai was in contact through the internet with members of the Islamic State 8/Islamic State of Iraq and Syria 9/Islamic State of Iraq and Levant 10/DAESH, terrorist organizations banned by the United Nations and the Indian Government. He was alleged to have been planning to assist Farooq (a member of IS/ISIS/ISIL/Daesh) in making bombs/IEDs to cause a blast during the month of Ramzan, for which he had procured the required material in July 2016. The ATS CR No 8 of 2016 IPC UAPA ES Act ATS A Police Inspector in ATS, Nanded Unit, Nanded, Maharashtra Criminal Appeal No 1165 of 2021 IS ISIS ISIL PART A arrested four persons from Parbhani, namely: (i) Naser Bin Abu Bakr Yafai; (ii) Mohammad Shahed Khan (the appellant in the companion appeal 11); (iii) Iqbal Ahmed; and (iv) Mohammad Raisuddin.
3 On 26 August 2016, the Government of Maharashtra, in exercise of powers conferred by Section 11 read with Section 185 of the Code of Criminal Procedure 1973 12 issued a notification designating the Chief Judicial Magistrate 13, Nanded, as a Court of remand and the Court of Additional Sessions Judge 14, Nanded, as a Special Court to try cases filed by the ATS Nanded.
4 On 8 September 2016, the Ministry of Home Affairs of the Union government 15 directed the National Investigation Agency 16 to take over further investigation in the present case by exercising powers under Section 6(4) of the National Investigation Agency Act 2008 17. On 14 September 2016, the NIA Mumbai renumbered the case 18 for taking up further investigation.
5 The ATS continued with the investigation and filed a charge-sheet on 7 October 2016 against the aforesaid accused persons under Sections 120-B and 471 of the IPC read with Sections 13, 16, 18, 18-B, 20, 38 and 39 of the UAPA and Sections 4, 5 and 6 of the ES Act before the CJM, Nanded. The CJM, Nanded took Criminal Appeal No 1166 of 2021 CrPC CJM ASJ F.No. 11011/24/2016-IS.IV NIA NIA Act RC-03/2016/NIA/MUM PART A cognizance of the offence and on 18 October 2016 committed the case 19 to the Court of ASJ, Nanded.
6 On 23 November 2016, the NIA Mumbai informed the ATS Nanded of having taken over the investigation and sought the papers/records of the case. On 8 December 2016, the ATS Nanded handed over the case papers to the NIA Mumbai. At present, the NIA Mumbai is seized of the matter and is conducting further investigation. During the course of the above events, Naser Bin Abu Bakr Yafai had filed an application on 21 October 2016 before the ASJ, Nanded, under Section 167(2) of the CrPC. In his application, he contended that the offences under the UAPA are scheduled offences under the NIA Act, and hence, the CJM, Nanded had no jurisdiction to pass an order on remand, to take cognizance and pass an order of committal of the proceedings to the ASJ, Nanded since it was not a Court established under Sections 11 or 22 of the NIA Act. On 14 November 2016, the ASJ, Nanded rejected Naser Bin Abu Bakr Yafais application since, at that time, the NIA Mumbai had not taken over the investigation from the ATS Nanded and hence, the ATS Nanded had to continue with the investigation under Section 6(7) of the NIA Act. Therefore, the ATS Nanded, in light of the notifications issued by the Government of Maharashtra, was held to have correctly filed the charge-sheet before the CJM, Nanded who committed the case to trial before the ASJ, Nanded.
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If the offence is cognizable in nature, Section 156 of the Code of Crinminal Procedure allows the officer in charge of a police station to investigate a case in his territorial jurisdiction without the need for a Magistrate's order. On the direction of the Magistrate empowered under Section 190, the officer may also begin an investigation.
The police enjoy a wide range of powers during the time of the investigation. It is common for them to often exceed the powers granted to them or misuse them. In such a case, an investigation is faulty leading to the injustice suffered by the accused. However, an action in the court can always be initiated if the accused is of the opinion that the police are not exercising their power judiciously. It is always necessary to consult a criminal lawyer in such matters to ensure the best guidance and a favourable outcome of the case.
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