UT of J&K v. Ghulam Hussain

Through: Mr. Rouf Lone, Advocate Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE O R D E R 15.11.2022

1. The instant reference has been made by learned 3rd Additional Sessions Judge, Jammu (Special Judge under section 22 of NIA Act) (hereinafter to be referred as Special Judge) whereby, the learned judge has recommended that the case arising out of FIR No. 63/2020 of Police Station, Mahore for commission of offences under sections 121/122/123/124 and 120-B IPC be transferred to the court having jurisdiction.

2. It appears that after investigation of the aforesaid FIR, a challan came to be filed against the accused before the court of Principal Sessions Judge, Reasi and in the challan offences under sections 121/122/123/124 and 120-B IPC were alleged to have been committed by the accused. During proceedings of the case, learned Principal Sessions Judge, Reasi in terms of order dated

28.09.2022 transferred the case to the court of learned 3rd 2 CRREF No. 08/2022 Additional Sessions Judge, Jammu (Special Judge) by observing that the accused are involved in offences which are included in the Schedule to National Investigation Agency Act (NIA). According to learned Principal Sessions Judge, Reasi, all the Scheduled offences are required to be tried by special courts designated under section „22‟ of the NIA Act and since, the court of 3rd Additional Sessions Judge, Jammu has been designated as a special court under the aforesaid provision, as such, the said court has jurisdiction to try the case.

3. After the case was transferred to the court of learned 3rd Additional Sessions Judge, Jammu (Special Judge), the order of reference came to be passed by the learned Special judge on

28.10.2022, wherein, the learned Special judge has observed that in terms of SRO 149 dated 1st March 2019, the said court has been designated as special court only in respect of offences under the provisions of Unlawful Activities (Prevention) Act, 1967 and not in respect of other scheduled offences. Heard learned counsel for the accused and perused the record of the case. In order to determine the controversy in hand, it would be apt to notice certain provisions of NIA Act. Section „22‟ of the NIA Act is relevant to the context and the same is reproduced as under:-

5. 3 CRREF No. 08/2022 Power of State Government to[designate Court of Session as] Special Courts-(1) The State Government may designate one or more Courts of Session as 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 designated by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely- (i) references to “Central Government” in Section 11 and 15 shall be construed as references to State Government; (ii) reference to “Agency” in sub-section (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 designate 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 designated 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 [designated].

6. From a perusal of sub-section (1) of Section 22 of the NIA Act quoted above, it is clear that the State Government has been vested with power to designate one or more courts as Special Courts for trial of offences under any or all the enactments specified in the Schedule. This makes it clear that the Government has power to designate Special Courts in respect of any of the eight categories of offences mentioned in the Schedule or in respect of all the eight categories mentioned therein. 4 CRREF No. 08/2022

7. In the instant case, the State Government has issued SRO 149 dated 01.03.2019 in exercise of its powers under section 22 of the NIA Act. SRO 149 dated 1st March 20196 is reproduced as

8. under:- SRO 149:- In exercise of the power conferred by sub section (1) of section 22 of the National Investigation Agency Act, 2008, Government hereby notifies the Court of Additional District and Sessions Judge, (TADA/POTA), Srinagar and 3rd Additional District and Sessions Judge, (TADA/POTA), Jammu as Special Courts for Kashmir and Jammu province respectively for the purpose of trial of offences under the Unlawful Activities (Prevention) Act, 1967. From a perusal of the contents of the afore-quoted SRO it is that the Government has designated Court of 3rd Additional Sessions Judge, Jammu as Special Court for Jammu province for the purpose of trial of offences under Unlawful Activities (Prevention) Act, 1967 and no other category of the Scheduled offences is included in the said notification meaning thereby that Special Designated court at Jammu is vested with powers to deal with the cases of Jammu province which are related to offences under Unlawful Activities (Prevention) Act, 1967 and not with the cases which are related to other seven categories of offences mentioned in the Schedule.

9. In the instant case, the accused are facing trial for offences under sections 120-B/121/122/123 and 124 IPC. They are not facing trial for any offence under Unlawful Activities (Prevention) Act, 1967. Therefore, the Special Court designated at Jammu does not have jurisdiction to try the offences which 5 CRREF No. 08/2022 are subject matter of the challan, as admittedly the occurrence has taken place beyond the territorial jurisdiction of the said Court. Thus, learned Principal Sessions Judge, Reasi was not justified in transferring the challan to the court of 3rd Additional Sessions Judge, Jammu (Special Court). The instant reference has rightly been made by the learned Special Judge which is based on correct position of law.

10. For the foregoing reasons, the reference is accepted and the challan is transferred to the court of learned Principal Sessions Judge, Reasi for its disposal in accordance with law. The accused are directed to be produced before the court of learned Principal Sessions Judge, Reasi on 05.12.2022. The Registry is directed to send the original file to the court of Principal Sessions Judge, Reasi along with a copy of this order. Another copy of this order be sent to the court of learned 3rd Additional Sessions Judge, Jammu for information.

11. Disposed of. Jammu 15.11.2022 Neha (Sanjay Dhar) Judge Whether the order is speaking : Yes / No Whether the order is reportable: Yes/ No