Introduction:
The case of UT of J&K v. Sameer Ahmad Bhat & Ors. came before the High Court of Jammu & Kashmir and Ladakh in the form of a reference made by the Principal Sessions Judge, Kulgam, seeking clarity on a procedural deadlock that had resulted in a criminal case being repeatedly transferred between two courts without progress. The central issue revolved around the interpretation and application of Section 20 of the National Investigation Agency Act, 2008, particularly in circumstances where no “scheduled offence” under the Unlawful Activities (Prevention) Act is made out against the accused.
The matter was heard and decided by Justice Sanjay Dhar, who addressed the confusion arising from the jurisdictional overlap between Special Courts designated under the NIA Act and ordinary criminal courts functioning under the Code of Criminal Procedure. The case presented a unique factual situation where an FIR had originally invoked provisions of the Unlawful Activities (Prevention) Act, 1967 along with other offences under the Ranbir Penal Code, the Arms Act, and other statutes. However, during the course of investigation, the alleged UAPA offences were found applicable only to certain accused persons who had subsequently died, leading to abatement of proceedings against them.
For the remaining accused, no UAPA offence was disclosed in the charge sheet. This created a jurisdictional dilemma—whether the Special Court designated under the NIA Act could continue to try the case or whether it must be transferred to a regular Sessions Court. The situation was further complicated by conflicting decisions of the Special Judge (NIA) and the Principal Sessions Judge, Kulgam, resulting in the case file being “tossed” between the two forums.
The High Court was thus called upon to interpret the statutory scheme of the NIA Act, particularly Sections 14 and 20, and to determine the appropriate forum for trial. The decision ultimately provides significant clarity on the mandatory nature of transfer under Section 20 when no scheduled offence exists, reinforcing procedural discipline and preventing jurisdictional confusion.
Arguments Supporting Retention by Special Court:
One line of reasoning, reflected in the approach initially adopted by the Principal Sessions Judge, Kulgam, was that the case ought to remain before the Special Court designated under the NIA Act. This view drew support from the original nature of the FIR, which included allegations under the Unlawful Activities (Prevention) Act, 1967. It was argued that since the case initially involved scheduled offences, the Special Court had already taken cognizance and thus retained jurisdiction over the matter.
Reliance was placed on the Supreme Court’s decision in Essar Teleholdings Ltd. v. Registrar General High Court of Delhi, which dealt with issues of jurisdiction and transfer of cases. Additionally, Section 223 of the Code of Criminal Procedure was invoked to argue that where multiple accused are involved in the same transaction, they may be tried together, even if the offences differ.
From this perspective, it was contended that the presence of UAPA allegations at the initial stage conferred jurisdiction upon the Special Court, and the subsequent death of certain accused or the absence of UAPA charges against others should not automatically divest that court of its authority. It was further suggested that retaining the matter before the Special Court would promote judicial efficiency and avoid fragmentation of proceedings.
Another argument that could be inferred was based on Section 14 of the National Investigation Agency Act, 2008, which empowers a Special Court to try not only scheduled offences but also other offences connected with them. It was contended that since the case arose from a common FIR involving multiple offences, the Special Court could exercise jurisdiction over all charges, even if some of them did not independently fall within its domain.
Arguments Supporting Transfer to Regular Criminal Court:
On the other hand, the position adopted by the Special Judge (NIA) and ultimately upheld by the High Court was that the case must be transferred to a regular criminal court once it becomes evident that no scheduled offence is made out against the accused who are to be tried.
It was emphasized that the jurisdiction of a Special Court under the National Investigation Agency Act, 2008 is fundamentally premised on the existence of a scheduled offence. In the absence of such an offence, the very basis of the Special Court’s jurisdiction ceases to exist. Therefore, continuing the trial before such a court would be contrary to the statutory scheme.
A key provision relied upon was Section 20 of the NIA Act, which mandates that where a Special Court, after taking cognizance, finds that the offence is not triable by it, it shall transfer the case to a court having jurisdiction under the Code of Criminal Procedure. The use of the word “shall” was highlighted to argue that the provision is mandatory and leaves no discretion with the Special Court.
It was further argued that Section 14 of the NIA Act could not be invoked in the absence of a scheduled offence. While Section 14 allows a Special Court to try connected offences, this power is contingent upon the existence of a scheduled offence forming the basis of jurisdiction. Once such an offence is absent, the provision becomes inapplicable.
The Special Judge also pointed out that the accused against whom UAPA offences were established had died, leading to abatement of proceedings against them. As a result, the surviving accused were not charged with any scheduled offence, making it legally untenable for the Special Court to retain the case.
Another important argument was based on the need to avoid procedural delays and jurisdictional confusion. The repeated transfer of the case between courts had resulted in significant delay, with even the inquiry stage not being completed despite the passage of over a year. It was contended that a clear application of Section 20 would resolve this impasse and ensure expeditious trial.
Judgment:
The High Court, through Justice Sanjay Dhar, delivered a decisive ruling that clarified the legal position and resolved the jurisdictional conflict.
At the outset, the Court examined the language and scope of Section 20 of the National Investigation Agency Act, 2008. It observed that the provision clearly stipulates that if a Special Court, after taking cognizance, forms the opinion that the offence is not triable by it, it must transfer the case to a competent court under the Code of Criminal Procedure. The Court emphasized that the use of mandatory language leaves no room for discretion.
Applying this provision to the facts of the case, the Court noted that the charge sheet against the surviving accused did not disclose the commission of any offence under the Unlawful Activities (Prevention) Act, 1967. Consequently, there was no “scheduled offence” that could justify the jurisdiction of the Special Court.
The Court further observed that even if the Special Court were to conduct an inquiry, the inevitable conclusion would be that none of the offences is triable by it. In such a situation, the only legally permissible course of action is to transfer the case to a regular criminal court.
Addressing the argument based on Section 14 of the NIA Act, the Court clarified that this provision applies only when there is a scheduled offence forming the basis of jurisdiction. Since no such offence existed in respect of the surviving accused, Section 14 could not be invoked to retain the case.
The Court also took note of the fact that the accused against whom UAPA offences were established had died, leading to abatement of proceedings. This further reinforced the conclusion that the Special Court had no jurisdiction over the remaining accused.
Critically, the Court found that the Principal Sessions Judge, Kulgam, had misappreciated both the facts and the legal position. This misappreciation had resulted in the case being repeatedly transferred between courts, causing unnecessary delay and procedural confusion.
The High Court strongly disapproved of this “tossing” of the case file and highlighted the importance of adhering to statutory provisions to ensure judicial efficiency. It observed that the failure to correctly apply Section 20 had led to a situation where even the inquiry stage had not been completed despite the passage of considerable time.
In conclusion, the Court upheld the action of the Special Judge (NIA) in transferring the case to the Principal Sessions Judge under Section 20. It returned the reference with a clear direction that the Principal Sessions Judge, Kulgam, must proceed with the case in accordance with law and the legal position clarified by the High Court.
The judgment thus establishes an important precedent by reaffirming that the jurisdiction of Special Courts under the NIA Act is strictly contingent upon the existence of scheduled offences, and that in their absence, transfer to a regular court is not merely permissible but mandatory.