The Jammu & Kashmir and Ladakh High Court recently ruled that the provisions of the National Investigation Agency Act, 2008 do not prohibit the investigation of the Scheduled offences which include the offences under the Unlawful Activities (Prevention) Act, 1967 Act, by Local Investigating Agencies.

The Bench of Justice Sanjay Dhar observed that "It only provides that when a Scheduled offence is investigated by a local investigating agency, the same has to be tried by a Special Court constituted under Section 22 of the Act and in the absence of a Special Court, by the Sessions Court having jurisdiction in the area, meaning thereby that the Sessions Court will act as a Special Court in such matters where the offences involved are of the nature as mentioned in the Schedule to the NIA Act."

In this case, the petition was filed under Section 561-A of the J&K Cr.P.C. (pari materia with Section 482 CrPC) by the petitioner against the order passed by Principal Sessions Judge, Kulgam whereby the bail application was rejected. The petitioner was accused of committing offence under Sections 147, 148, 149, 336, 307, 302, 212 RPC, 7/27 Arms Act read with Sections 13(2), 18, 19, 20, 38, 39 of ULA(P) Act.

Advocate S.H. Thakur appeared for the Petitioner and submitted that the investigation was conducted by the local police and not by the National Investigation Agency and that the order was also not passed by a Special Court designated under the NIA Act. Therefore, the remedy of appeal under the NIA was not available to the petitioner.

Advocate Usman Gani appeared for the respondent.

The Court noted that the investigation was conducted by the local agency and not by the NIA Act and that the provisions of NIA Act, does not prohibit the investigation of the scheduled offences which included the offences under ULA(P) Act, by Local Investigating Agencies.

The Court observed that "Clause (ii) of sub-section (2) of Section 22 of the NIA Act, as quoted hereinbefore, clearly provides that reference to "Agency" in sub-section (1) of Section 13 shall be construed as a reference to the "Investigating Agency of the State Government", which means that every Scheduled offence investigated even by investigating agency of the State Government is to be tried only by a Special Court within whose jurisdiction it was committed."

Further with regard to the mandate of Special Court as per Section 22 of the NIA Act, the Court observed that if a Special Court was not constituted, then the Sessions Court having jurisdiction in the area, would act as a Special Court in such matters where the offences involved are of the nature as mentioned in the Schedule to the NIA Act.

The Court further said that the order rejecting the bail had to be treated as the one passed by a Special Court constituted under Section 22 of the NIA Act and that such an order was appealable in terms of Section 21(4) of the NIA Act and in terms of sub-section (2) of Section 21, therefore, the appeal had to be heard by a bench of two Judges of the High Court.

The Court further noted that the petitioner had an 'alternative efficacious remedy' to file an appeal under Section 21 of the NIA Act, but had filed the present petition under Section 482 of the Cr.P.C. Therefore, the remedy available to the petitioner was not only efficacious but the same was effective as well. "Therefore, on account of availability of alternative efficacious remedy, this Court would not exercise its inherent jurisdiction under Section 561-A of the Jammu and Kashmir Cr. P. C to interfere with the impugned order." said the Court.

Accordingly, the petition was dismissed as not maintainable.

Cause Title- Mohammad Ayoub Dar v. State of J&K

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Jammu & Kashmir & Ladakh High CourtJustice Sanjay DharNational Investigation Agency Act 2008

Sanjoli N Srivastava