By Cr Misc Petition No.3560/2014, challenge is made to the order dated 29.5.2014, passed by the learned Chief Metropolitan Magistrate, Jaipur Metropolitan, dismissing the application moved by the petitioners for declaring the proceedings taken against them as null and void ab initio so as the order dated 28.6.2014 passed by the learned Additional Sessions Judge No.13, Jaipur Metropolitan on criminal revision petition against the order dated 29.5.2014. A further prayer is to declare remand of accused petitioners as null and void so as the custody and they may be discharged and set at liberty.
The petitioners have also challenged the order dated 21.6.2014 passed by the District and Sessions Judge, Jaipur (in Cr Misc Petition No.3420/2014), order dated 18.8.2014 passed by the District and Sessions Judge, Jaipur (in Cr Misc Petition No.3798/2014). The challenge to the aforesaid orders have been made on the same grounds as have been urged in the main Cr Misc Petition No.3560/2014 and separate arguments were made.
The brief facts of the case are that Police Station CID, Jaipur, CID (SOG) registered an FIR No.3/2014 on 23.3.2014 and started investigation disclosing the fact that the petitioners are accomplices of Pakistani terrorist Wakas @ Zia-ur-Rehman. They were found to be members of proscribed terrorist organisation Indian Muzahideen. The accused petitioners were working under the directions of hardcore Indian Muzahideen terrorists Riyaz Bhatkal and Iqbal Bhatkal for operating terrorist activities with the help of ISI. A case was accordingly registered for offence under sections 4 and 5 of the Explosive Substances Act, 1908, sections 3/10, 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (for short 'the UAP Act') and section 120B IPC. A report was sent to the State Government on 15.4.2014 as per section 6(1) of the National Investigation Agency Act, 2008 (for short 'the NIA Act'). On 19.4.2014, the State Government sent a report to the Central Government as is required under section 6(2) of the NIA Act. The investigation, thereafter continued by the State Police in absence of any direction of the Central Government under the Act of 2008.
The accused petitioners were arrested and produced before the Chief Metropolitan Magistrate, Jaipur Metropolitan (for short 'CMM') for remand, which was granted from time to time upto 90 days. Further extension of period of investigation beyond the period of 90 days was granted by the Sessions Judge, Jaipur Metropolitan on an application filed by the Public Prosecutor under section 43D of the UAP Act. The said application was allowed with extension of period. The Public Prosecutor again filed application for further extension of period by 30 days, which was also granted.
The accused petitioners have challenged the investigation conducted by the State Police and grant of remand by the CMM with a direction to treat all the actions as null and void. The prayer of the petitioners was not accepted, rather, impugned order was passed by the CMM on 29.5.2014 and a further challenge by a revision petition also remained unsuccessful. In the meanwhile, after completion of the investigation and getting sanction for prosecution, charge sheet was filed for the offence under sections 4,5 and 6 of the Explosive Substances Act, 1908, sections 16, 17, 18, 18A, 18B, 19, 20 and 23 of the UAP Act, 1967 and sections 121, 121A, 122, 465, 468, 471 and 120B IPC and the cognizance of offence was taken by the CMM on 19.9.2014.
Mr Mehmood Pracha, learned counsel for accused petitioners, has raised legal issues in regard to the investigation by the State Police and the order of remand by the Magistrate. It is submitted that the NIA Act, 2008 and the Unlawful Activities (Prevention) Amendment Act, 2008 were enacted by Parliament on 31.12.2008. The NIA Act provides eight categories of offences which are mentioned in the Schedule to the Act of 2008. The offences under the UAP Act, 1967 is one of them. As per section 6 (3) of the NIA Act, sole prerogative is of the Central Government to determine as to whether reported offence is a Scheduled Offence or not. Section 6(3) further refers about the investigation of the scheduled offence. It is the duty and prerogative of the Central Government to decide as to whether the investigation of the case is to be conducted by the National Investigation Agency (for short 'the agency') or not. The decision aforesaid is to be taken by the Central Government based on gravity of the offence and other relevant factors concerned to the scheduled offence. Accordingly, section 6 (3) of the NIA Act gives absolute domain to the Central Government to first determine about the scheduled offence on a report received from the State Government and also to choose the investigating agency. The Central Government is having option to get the investigation by the NIA.
On the aforesaid exercise, there can be two outcomes of the decision of the Central Government if the offence is taken to be scheduled offence. The first option is to get the investigation through NIA and other by the investigating agency of the State concerned. In case investigation is made by the NIA, jurisdiction would be to the Special Court under section 11 of the NIA Act and in case of investigation is by the State Agency, jurisdiction would lie to the Special Court under section 22 of the Act of 2008. The procedure for remand and trial has been laid down under Chapter IV of the NIA Act. In both the situations, jurisdiction lies with the Special Court which alone is competent to take cognizance of the offence without the accused being committed for trial and also to undertake pre-committal and pre-cognizance proceedings.
In view of the provision aforesaid, the pre-committal proceedings, which includes remand, vest in the Special Court. There is a deliberate departure from the jurisdiction of the court of Magistrate for order of remand or to pass an order for cognizance of offence, so as to commit the case. Thus, Magistrate has no jurisdiction for the proceedings under the NIA Act for any scheduled offence.
The prosecution has tried to support process of remand as envisaged under section 167 of the Code of Criminal Procedure (for short 'the CrPC') and process of extension of period of investigation, as provided under section 43D(2)(b) of the UAP Act. The argument that the Special Court can extend the period of investigation from 90 days to 180 days, thus extension of remand prior to expiry of first 90 days of investigation can be by the Magistrate. It is in ignorance of the provisions of the NIA Act read with UAP Act.
Learned counsel has given reference of an order dated 7.9.2011 passed by the Ministry of Home Affairs, Government of India exercising powers under section 6 of the NIA Act declaring the offence to be a scheduled offence. According to him, Parliament has laid down specific procedure for investigation of scheduled offence. The investigation contrary to legal provisions is to be treated as without sanction of law and illegal. In view of above, investigation in the case followed by charge sheet is nullity in the eyes of law and, accordingly, cognizance of offence will have no legal value.
Referring to the facts of this case, it is submitted that investigation in the case by the Stage agency is illegal in absence of an order by the Central Government or, in the alternative, such investigation should be treated not for the scheduled offence thus it would exclude offence under the UAP Act if the prosecution case is accepted as it is. However, if offence under the UAP Act is also included, then further investigation becomes illegal in absence of any order under section 6(3) of the NIA Act.
A further reference of sections 11, 13, 15 and 22 of the NIA Act has been given and are applicable to this case if it is presumed that investigation is authorised through the State Agency. According to learned counsel, jurisdiction of the Special Court is provided under section 13 of the NIA Act and section 22 of the NIA Act makes a reference of constitution of Special Court by the State Government. According to him, none of the pre-committal proceedings can be undertaken before the court of Magistrate in view of entire jurisdiction with the Special Court.
A further reference of section 43D (2)(b) of the UAP Act has been given to show that jurisdiction for remand has been given to the Court and the word 'Court' has been defined as a Special Court , yet, respondents had taken remand of the accused petitioners from the court of Magistrate followed by extension of period of investigation till expirty of period of 90 days. In view of the facts given above, entire proceedings vitiate and may be declared as illegal with appropriate relief to the accused petitioners.
It is lastly contended that a petition under section 482 CrPC would be maintainable against the order of the revisional court as absolute bar does not exist for it.
Per contra, Mr Rajendra Prasad, learned additional Advocate General, vehemently contested the case. It is submitted that the arguments of learned counsel for the accused petitioners is based on mis-interpretation of the provisions of law for challenge to the investigation by the State Police so as the order of remand by the court of Magistrate. The court below thus rightly rejected the pleas taken by the petitioners followed by dismissal of the revision petition by a speaking order.
The petition under section 482 CrPC is not maintainable for challenge to the order of revisional court. This petition becomes a second revision petition in exercise of jurisdiction under section 482 CrPC. The Hon'ble Apex Court has deprecated acceptance of petition under section 482 CrPC after dismissal of the revision petition in the hands of the same person, thus present petition deserves to be dismissed on that ground itself.
Coming to merit of legal issues, it is submitted that interpretation of section 6(3) of the NIA Act has not been correctly made so as to challenge the investigation by the State Police. The aforesaid provision gives power to the Central Government to find out as to whether the offence is scheduled offence or not and also as to whether having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency or not. Section 6(3) of the NIA Act has been read in isolation by learned counsel for petitioners though sub-section (4), (5) and (7) thereof makes the provision clear. As per the scheme of the aforesaid provision, whenever any information is received recording scheduled offence, officer-in-charge of the Police Station shall forward the report to the State Government, which shall forward it to the Central Government as expeditiously as possible. Sub-section (3) gives power of investigation of a scheduled offence by an investigating agency on an order by the Central Government. Sub-section (4) refers about opinion of the Central Government that offence being scheduled offence and a fit case to be investigated by the Agency. Sub-section (7) of section 6 of the NIA Act further clarifies that till the Agency takes up the investigation as per the directions of the Central Government, the officer-in-charge of the Police Station concerned will continue with the investigation.
According to learned Additional Advocate General, section 6 does not require a declaration for the offence to be scheduled offence under section 6(3) of the NIA Act. In fact, an opinion of the Central Government would be required if they intend to give investigation to the NIA. The petitioners have taken interpretation that for every offence to come within the purview of scheduled offence, an order under section 6(3) of the NIA Act is a pre-condition.
Section 2(g) of the NIA Act clarifies as to what would be Scheduled Offence and, according to the definition of the Scheduled Offence , it would be those offences given in the Schedule. No separate provision exist under the Act for declaration of the offence to be scheduled offence. In fact, list of offences finds place in the Schedule appended to the NIA Act. Section 6(3) gives power to the Central Government to get investigation of the offence through the Agency when they find it to be a scheduled offence and not otherwise, subject to other conditions.
In the instant case, the Central Government did not find reasons to direct the investigation through Agency thus after receipt of the report from the Stage Government, order under section 6(3) was not passed and, in view of that, State Police was having authority to continue with the investigation. The challenge to the investigation is thus not sustainable as it is being conducted by the State Police within competence and as per provisions of law.
On the issue of jurisdiction of the court of Magistrate, learned Additional Advocate General submitted that the accused petitioners were arrested and remand was sought from the Chief Metropolitan Magistrate as per section 167 CrPC read with section 43D(2)(b) of the UAP Act. The petitioners have deliberately avoided reading of section 167 CrPC. It gives specific power and jurisdiction to the Magistrate for remand and extension of period of investigation even if it does not have jurisdiction to try the case. The provision under section 43D(2)(b) of the UAP Act comes in picture when extension of investigation is required beyond 90 days. It would then be by the Special Court on an application by the Public Prosecutor as provided under section 43D of the UAP Act. The extension of the period of investigation upto 90 days was thus rightly given by the Magistrate followed by extension of period of investigation by 60 days and 30 days by the Sessions Court. Thus, even the second argument raised by learned counsel for petitioners has no substance.
According to the learned counsel for the petitioners, an order of remand or extension of period of investigation can be passed by the Sessions Court and in the instant case, subsequent extensions are by the Sessions Court, thus even for the sake of argument it is assumed that initially remand was not proper, subsequent extension of the period of investigation cure the defect.
I have considered rival submissions of the parties and perused the record.
In view of the submissions made by learned counsel for the parties, following two questions are formulated for answer-
1-Whether investigation by the State Police is permissible for a scheduled offence even if no order under section 6(3) of the NIA Act has been passed by the Central Government declaring it to be a scheduled offence? and
2-Whether the Magistrate is having jurisdiction to pass an order at any stage prior to committal proceedings or any proceedings before cognizance of offence. The order of remand or extension of period of investigation by the Magistrate would be nullity in absence of jurisdiction of the court of Magistrate?
The aforesaid two questions have been formulated and otherwise given in the written arguments.
The first issue is regarding authority of the investigation by the State Police. To answer the question, reference of section 6 of the NIA Act would be relevant thus it is quoted hereunder -
CHAPTER III INVESTIGATION BY THE NATIONAL INVESTIGATION AGENCY
Investigation of Scheduled Offices.
6.(1) 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.
(2) On receipt of the report under subsection (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the Central Government shall determine 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 also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4) Where 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.
(5) Notwithstanding anything contained in this section, if the Central Government is of 15 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 to investigate the said offence.
(6) Where any 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 transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared 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 the investigation.
Section 6(1) requires a report to the State Government by the officer-in-charge of the Police Station concerned on receipt of the information and recording thereof under section 154 CrPC relating to any scheduled offence. Sub-section (2) of section 6 refers about a report by the State Government to the Central Government on receipt of report under sub-section (1). Subsection (3) is relevant and referred by both the parties. It provides that on receipt of the report from the State Government, the Central Government shall find whether the offence is a scheduled offence or not and also whether having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. The aforesaid exercise is required to be completed within 15 days from the date of receipt of the report from the State Government. The exercise aforesaid would be based on the information made available by the State Government or received from other sources.
Sub-section (4) provides that where the Central Government is of the opinion that the offence is scheduled offence and it is fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. Sub-section (7) gives power to the State Agency to continue with the investigation till the NIA take up the investigation, if an order has been passed under sub-section (3) or (4) of section 6 of the NIA Act.
According to learned counsel for petitioners, subsection (3) of section 6 has two parts. First a declaration of the offence to be a scheduled offence and second for its investigation. According to him, determination of the offence to be scheduled offence would be when an order is passed under sub-section (3) and if it is taken to be a case of scheduled offence then an order for its investigation has to be made. In the instant case, no order has been passed by the Central Government under section 6(3) of the NIA Act. In absence of it, the question would be as to whether the investigation by the State Agency is authorised, that too, for a scheduled offence.
To answer the aforesaid question, reference of section 2(f) and (g) of the NIA Act would be necessary. The aforesaid defines Schedule and Scheduled Offence thus provision aforesaid are quoted hereunder
Definitions.
2. (1) In this Act, unless the context otherwise requires,
(a) to (e) ..............
(f) "Schedule" means the Schedule to this Act;
(g)"Scheduled Offence" means an offence specified in the Schedule;
The perusal of the definition reveals as to which would be scheduled offence. It is those offences given in the Schedule. The Schedule appended to the NIA Act is also quoted hereundre for ready reference
THE SCHEDULE
[See section 2(1)(f)]
1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under
(a) Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)];
(b) Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860).
Reference of the Schedule is given to show that the NIA Act itself determines as to which would be Scheduled Offence. The perusal of the Schedule reflects offence under the UAP Act to be scheduled offence.
Now, in the light of the definition quoted above so as the Schedule, section 6(3) has to be given interpretation. Section 6 (3) empowers Central Government to direct investigation by the Agency having regard to the gravity of other relevant factors. Such an order can be passed only when it is a scheduled offence. Thus, obviously, the Central Government would first find out whether the information sent by the State Government or other source discloses a scheduled offence or not. If it is found that offence disclosed is a scheduled offence, it is given power to direct its investigation by the Agency. However, if the right given under section 6(3) is not exercised by the Central Government within 15 days and Agency is not nominated for investigation, the investigation would continue by the State Police. In view of the aforesaid, I am unable to accept the argument of the learned counsel for the petitioners in reference to section 6(3) of the NIA Act. When the definition of the 'scheduled offence' makes the things clear and the Schedule appended to the Act discloses which are Scheduled Offences, a further declaration for it by the Central Government would virtually make section 2 (1) (f) and (g) to be redundant or ineffective. The scheme of section 6 of the NIA Act requires procedure of a report to the State government on an information about the scheduled offence. It would then go upto to the Central Government and the Central Government is given liberty to direct investigation by the Agency but, again, it is not in all the cases. It is if there is gravity apart from other relevant factors and when it is a scheduled offence. In absence of an order under section 6(3) of the NIA Act, the State Police is having authority to continue with the investigation as given in sub-section (7) of section 6 of the Act.
The investigation by the State Police was authorized in absence of an order by the Central Government assigning investigation to the NIA. It is not necessary that for every offence an order by the Central Government is a pre-condition to declare it to be a scheduled offence. In fact, no such declaration is required, however, if the Central Government considers relevant factors and gravity of the offence for investigation to be taken up by the Agency, it can pass an order subject to offence to be a scheduled offence. In view of the discussion made above, first question is answered against the petitioners and in favour of the prosecution.
The second issue is regarding jurisdiction of the court of Chief Metropolitan Magistrate vis-a-vis Special Court and, in the instant case, of the Sessions Court for any proceeding prior to committal or cognizance of the offence. Learned counsel for petitioners has given reference of section 11, 13, 15 and 22 of the NIA Act apart from section 43 of the UAP Act. The provisions aforesaid are quoted hereunder for ready reference -
CHAPTER IV
SPECIAL COURTS
Power of Central Government to constitute Special Courts.
11. (1) The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Central Government whose decision in the matter shall be final.
(3) A Special Court shall be presided over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court.
(4) The Agency may make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court.
(5) On receipt of an application under subsection (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend the name of a judge for being appointed to preside over the Special Court.
(6) The Central Government may, if required, appoint an additional judge or additional judges to the Special Court, on the recommendation of the Chief Justice of the High Court.
(7) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State.
(8) For the removal of doubts, it is hereby provided that the attainment, by a person appointed as a judge or an additional judge of a Special Court, of the age of superannuation under the rules applicable to him in the service to which he belongs shall not affect his continuance as such judge or additional judge and the Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order.
(9) Where any additional judge or additional judges is or are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Special Court among all judges including himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judge.
13. (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
(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 sect/on 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.
Public Prosecutors.
15. (1) The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:
Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause ( ) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.
Power of State Government to constitute Special Courts.
22. (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 (1) 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 subsection (1) 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-section (3) of 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 (1) 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.
(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.
Section 43 of the Unlawful Activities (Prevention) Act, 1967
43.Officers competent to investigate offences under Chapters IV and VI. Notwithstanding anything contained in the Code, no police officer,
(a) in the case of the Delhi Special Police Establishment, constituted under subsection (1) of section 2 of the Delhi Special Police Establishment Act, 1946, (25 of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank;
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under sub-section (1) of section 8 of the Code, below the rank of an Assistant Commissioner of Police;
(c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under Chapter IV or Chapter VI.
[43A. Power to arrest, search, etc. Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.
[43B. Procedure of arrest, seizure, etc. - (1) Any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer-in-charge of the nearest police station.
(3) The authority or officer to whom any person or article is forwarded under subsection (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code.
[43C. Application of provisions of Code. The provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of this Act, to all arrests, searches and seizures made under this Act.
[43D. Modified application of certain provisions of the Code. - (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly.
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),-
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:-
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody."
(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that-
(a) the reference in sub-section (1) thereof-
(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government.";
(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and
(b) the reference in sub-section (2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be".
(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.
(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.
43E Presumption as to offences under section 15. In a prosecution for an offence under section 15, if it is proved
(a) that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence; or
(b) that by the evidence of the expert the finger-prints of the accused or any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence,
the Court shall presume, unless the contrary is shown, that the accused has committed such offence.]]
43F Obligation to furnish information.
(1) Notwithstanding anything contained in any other law, the officer investigating any offence under this Act, with the prior approval in writing of an officer not below the rank of a Superintendent of Police, may require any officer or authority of the Central Government or a State Government or a local authority or a bank, or a company, or a firm or any other institution, establishment, organisation or any individual to furnish information in his or their possession in relation to such offence, on points or matters, where the investigating officer has reason to believe that such information will be useful for, or relevant to, the purposes of this Act.
(2) The failure to furnish the information called for under sub-section (1), or deliberately furnishing false information shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(3) Notwithstanding anything contained in the Code, an offence under sub-section (2) shall be tried as a summary case and the procedure prescribed in Chapter XXI of the said Code [except sub-section (2) of section 262] shall be applicable thereto.]
The reference of section 167 CrPC would also be relevant thus quoted hereasunder -
167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
Provided further that in case of a woman under eighteen years o age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.]
2[(2A)Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under subsection (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
(emphasis supplied)
The second issue in regard to the jurisdiction of the Magistrate to pass an order for remand and extension of period of investigation upto the period of 90 days can be determined in reference to section 167 CrPC and section 43D of the UAP Act. According to the learned counsel for the petitioners, jurisdiction for it lies only with the Special Court and, for which, reference of section 167 CrPC and section 43D(2)(b) of the UAP Act has been given. The challenge to the jurisdiction of the Magistrate for remand and extension of period of investigation till the expiry of 90 days is in ignorance of section 167 CrPC and 43D of the UAP Act. Section 43D of the UAP Act does not alter basic provision of section 167 CrPC, rather, it is made applicable as it is. The addition in the provision is for extension of the period of investigation beyond a period of 90 days and upto 180 days. Section 167 CrPC provides maximum period of investigation to be of 90 days, in a given case. The UAP Act, however, enlarge the period upto 180 days thus section 167 CrPC has to be read along with section 43D of the UAP Act.
The perusal of section 167(1) and (2) CrPC shows competence of the Magistrate for remand and extension of period of investigation even for a case for which it has no competence to try thus even in the instant case, trial is authorised to the Special Court, jurisdiction of the Magistrate is not taken away for remand and extension of period of investigation upto 90 days, in view of section 167 CrPC.
If the argument of the learned counsel for petitioners is accepted that even the remand and extension of period of investigation can be by the Special Court alone, it would require rewriting of section 167 CrPC apart from section 43D of the UAP Act. When section 167 CrPC specifically empowers the Magistrate for remand and extension of period of investigation upto 90 days and has not been touched by the UAP Act, how the interpretation, contrary to the statutory provisions can be taken so as to nullify authority of the Magistrate for remand and extension of period of investigation upto 90 days as has been specifically provided under the Act.
The opening words of section 167 CrPC itself shows competence of the Magistrate to remand and extension of period of investigation. The word Magistrate cannot be substituted with that of Special Court when no amendment to this effect has been made under section 43D of the UAP Act. The only addition under section 43D of the UAP Act is for extension of period of investigation beyond 90 days. As per section 43D(2)(b) UAP Act, the extension of period beyond 90 days and upto 180 days can be by the Special/ Sessions Court. The word court has been defined under sub-section (d) of section 2 of the UAP Act, 1967 and means a Criminal Court having jurisdiction under the Code to try the case and includes a Special Court thus whenever extension of period of investigation is required beyond 90 days, it can be by the Special Court or Sessions Court. The Magistrate would not be having authority to extend the period beyond 90 days. The extension of period of investigation by the Magistrate is upto 90 days and beyond that by the Sessions Court.
In the instant case, extension of period of investigation upto 90 days is by the Magistrate and subsequent extension on application of the Public Prosecutor is by the Sessions Court. Thus, it is incorrect to say that the court of Magistrate has no authority to remand or to extend the period of investigation even if it is upto 90 days. The argument aforesaid is based on misreading of section 167 CrPC and section 43D UAP Act. It is, no doubt, true that trial of the case is authorised by the Sessions/ Special Court but remand or extension of period of investigation is not part of trial but a prior stage and is authorized by the Magistrate under section 167 CrPC and 43D of the UAP Act irrespective of jurisdiction for trial.
In view of the discussion made above, it becomes clear that remand as well as extension of period of investigation by the Magistrate upto 90 days was as per section 167 CrPC read with section 43D UAP Act and further extension of period of investigation by the Sessions court was as per section 43D of the UAP Act thus there is no illegality in the orders passed by the courts below in rejecting the pleas taken by the learned counsel for the petitioners.
It is, however, necessary to clarify that Special or the Sessions Court is having competence to proceed without committal of the case but it does not bar cognizance of offence by the Magistrate as per the provisions of the CrPC and then commit the case to the Sessions Court. The aforesaid is the course provided under the CrPC but, apart from the aforesaid, the Special/Sessions Court has been given additional powers to proceed in the matter without committing the case.
Learned counsel for petitioners has given reference of the judgment of the Hon'ble Supreme Court in the case of Syed Mohd. Ahmed Kazmi versus State, GNCTD and ors , Criminal Appeal No.1695-1697 of 2012 (SLP (Crl)Nos. 6965/6967 of 2012), decided on 19.10.2012. The issue so as the facts therein were different than in the instant case. In the said case, extension of period of investigation was granted by the learned Magistrate retrospectively and despite declaration of the custody to be illegal by the court of Additional Sessions Judge. The judgment aforesaid does not provide that the Magistrate would have no jurisdiction to remand or extend the period of investigation upto 90 days, thus judgment aforesaid does not provide any assistance to the petitioners on the issue involved herein.
In the instant case, extension of period of investigation upto 90 days is by the Magistrate and further extension of period of investigation is by the Sessions Court as per section 43D of the UAP Act.
The other judgment is of the Gauhati High Court in the case of Sri Jibangshu Paul versus National Investigation Agency , Cr Appeal No.29/2011, decided on 27.7.2011. The perusal of the aforesaid judgment shows that at the beginning, questions have been formulated and none of the issues raised and discussed therein are the issues in the present case. The judgment aforesaid is in regard to the competence and jurisdiction of the Special Court/ Sessions Court vis-a-vis court of Magistrate for cognizance of offence. It is, no doubt, true that provisions of the NIA Act authorise cognizance of offence even without committal.
The next judgment referred by learned counsel for petitioners is delivered by the Hon'ble Supreme Court in the case of Hussainara Khatoon and ors versus Home Secretary, State of Bihar , AIR 1979 1369, 1979 SCR (3) 532. How the said judgment is relevant, could not be clarified as, largely, it is for speedy trial and is not on the issue before this court.
The judgment of the Kerala High Court in the case of Ashruff versus State of Kerala , Bail Application No.5134/2010, decided on 22.10.2010 has also been referred. Therein, it has been held that extension of period of investigation can be granted by the Sessions Court alone and not by the Magistrate. With due respect, observations are contrary to the statutory provisions, more specifically, sections 167 CrPC and 43D of UAP Act thus judgment aforesaid cannot be applied being contrary to the statutory provisions.
The judgment of the Hon'ble Supreme Court in the case of Union of India versus Col JN Sinha and anr , 1971 AIR 40, 1971 SCR (1) 791 has also been referred but I do not find any assistance from the said judgment on the issue raised in the instant case because there exist no issue of ambiguity in the provisions, rather, section 167 CrPC and section 43D UAP Act are clear in their terms.
In fact, none of the judgments cited by learned counsel for the petitioners provide assistance on the issue, rather, legal provisions and the facts of these cases are quite clear and have been given interpretation as is coming out from the legislative intent.
In view of the discussion made above, I do not find any substance in the criminal misc. petitions for challenge to the impugned orders. The petitions are, accordingly, dismissed.