UNION TERRITORY THROUGH POLICE STATION YARIPORA (POLICE / HOME) vs SAMEER AHMAD BHAT AND OTHERS

Item No.288
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Pronounced on:20.04.2026
Uploaded on: 23.04.2026
Whether the operative part
or full order is pronounced:
Full
Ref(Crl.) No.01/2026
UT OF J&K
...PETITIONERS/APPELLANT(S)
Through:
-
Mr. Mohsin Qadiri, Sr. AAG.
Vs.
SAMEER AHMAD BHAT & ORS. …RESPONDENT(S)
Through:
-
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
1) The instant reference has been made by the learned
Principal Sessions Judge, Kulgam, seeking appropriate
directions in the matter.
2) It appears that an FIR bearing No.96/2016 for
offences under Section 147, 148, 149, 188, 336, 332, 188,
302, 307, 427, 436, 511 RPC, 7/27 Arms Act, 3 PSS Act,
3/2 PPD Act and 13 ULAP Act came to be registered with
Police Station, Yaripora. After investigation of the case,
offences under Section 147, 148, 149, 188, 336, 332, 436,
511, 427 RPC, 3 PSS Act and 3/2 PPD Act were found
established against accused Shiraz Ahmad Dar, Asif
Ahmad Ganai, Zahoor Ahmad Nengroo, Towseef Ahamd
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Bhat, Sheikh Abdul Bari, Tariq Ahmad Parray, Khalid
Hussain Malik, Siyar Ahmad Kumar, Sameer Ahmad Bhat
and Sarjan Ahmad Wagay whereas offences under Section
302 RPC, 7/27 Arms Act and Section 13, 20, 38 ULAP Act,
were found established against accused Farooq Ahmad
Bhat, Hilal Ahmad Wani, Umar Majeed and Muzamil
Manzoor.
3) It appears that during investigation of the case,
accused Farooq Ahmad Bhat, Hilal Ahmad Wani, Umar
Majeed and Muzamil Manzoor died. The Investigating
Agency, it appears, presented a separate challan against
aforenamed accused before the Court of Special Judge
(Designated under NIA), Kulgam, as the offences under
Section 13, 20 and 38 of UAPA were also found established
against these accused. However, a separate challan came to
be filed against other accused before the Court of Principal
Sessions Judge, Kulgam, as none of the offences under
UAPA was found established against them.
4) Learned Special Judge (Designated under NIA), vide
his order dated 31.12.2024 recorded that the proceedings
against four accused, who had been killed and against
whom offences under UAPA were also found established,
stand abated. However, the learned Principal Sessions
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Judge, Kulgam, vide his order dated 03.03.2025 after
relying upon the ratio laid down by the Supreme Court in
the case of Essar Teleholdings Ltd. Vs. Registrar General
High Court of Delhi, (2013) 3 SCC 744, observed that
because all the offences including the offences under UAPA
have been committed in the same transaction, therefore, in
terms of Section 223 of the Cr. P. C, all the accused
persons are required to be tried together. After holding so,
the learned Sessions Judge transferred the case to the
Court of learned Special Judge (Designated under NIA),
Kulgam.
5) Vide order dated 06.11.2025, learned Special Judge
(Designated under NIA) Kulgam, observed that the order of
transfer has been passed by the learned Principal Sessions
Judge, Kulgam, in ignorance of order dated 31.12.2024,
whereby it was recorded that proceedings against the
accused, who had been killed and against whom offences
under UAPA had been established, stand terminated. The
learned Special Judge further observed that since there is
no accused left to be tried separately warranting invocation
of Section 220 of the Cr. P. C, the case is required to be
tried by the learned Sessions Judge. Accordingly, the file
was returned to the court of learned Principal Sessions
Judge, Kulgam.
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6) On 20.11.2025, the learned Sessions Judge, Kulgam,
after observing that there is no provision to transfer a
criminal case by Additional Sessions Judge to the Court of
Principal Sessions Judge. Thus, the chargesheet was again
sent to the Court of learned Special Judge (Designated
under NIA), Kulgam, for trial.
7) On 12.03.2026, the Special Judge (Designated under
NIA), Kulgam, passed a detailed order observing therein
that in terms of Section 20 of the National Investigation
Agency Act,2008 (for short “the NIA Act”), a Special Court
has the power to transfer cases to regular courts.
Accordingly, in exercise of the said power, the learned
Special Judge (Designated under NIA), Kulgam, transferred
the case back to the Court of learned Principal Sessions
Judge, Kulgam.
8) Upon receipt of the case file, the learned Principal
Sessions Judge, Kulgam, expressed his disagreement that
the course adopted by the learned Special Judge
(Designated under NIA) and has made the present reference
seeking guidance in the matter.
9) Learned Senior AAG, Mr. Mohsin Qadiri, was
requested to assist this Court on the issue involved in the
reference. Accordingly, he has been heard in the matter.
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10) The facts relevant to the present case are that initially
FIR came to be registered in respect of several offences
including the offences under UAPA, which is a schedule
offence. After investigation of the case, offences other than
offences under UAPA came to be established against 11
accused whereas against four more accused offences under
UAPA were also established. However, these four accused
persons got killed in various encounters with the security
forces while the investigation of the case was still in
progress. The Investigating Agency chose to file two
separate charge sheets, one against 11 accused persons,
who were alive, before the court of learned Principal
Sessions, Judge, Kulgam and against these 11 persons
offences under UAPA were not found established. In respect
of other four accused who got killed during investigation of
the case, a separate charge sheet was filed before the court
of learned Special Judge (Designated under NIA) Kulgam
after their death. Since these accused had died before the
charge sheet could be filed against them, therefore,
proceedings against them stood terminated as having
abated. Thus, inquiry/trial of the case in these
circumstances is confined to offences other than offences
under UAPA.
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11) It is a settled law that in a case where even after
taking cognizance of offences, a Special Court finds that no
scheduled offence is made out against the accused, the
case as to be transferred to the normal Criminal Court.
This is clear from the language of Section 20 of the NIA Act,
which reads as under:
20. Power to transfer cases to regular courts .-
Where, after taking cognizance of any offence, a
Special Court is of the opinion that the offences
is not triable by it, it shall, notwithstanding that
it has no jurisdiction to try such offence,
transfer the case for the trial of such offences to
any court having jurisdiction under the Code
and the Court to which the case is transferred
may proceed with the trial of the offence as if it
had taken cognizance of the offense.
12) In the present case even if the inquiry is held by the
Special Judge (Designated under NIA), the only conclusion
that can be drawn by the said court is that none of the
offences is triable by it. Section 14 of the NIA Act gives
jurisdiction to a Special Court to try any other offence with
which the accused may be charged at the same trial if the
offence is connected with the scheduled offence. Since the
charge sheet against the accused who are alive does not
disclose commission of offences under UAPA, therefore,
Section 14 of the NIA Act cannot be invoked by the Special
Judge for retaining the challan with it. The only option
available with the Special Judge (Designated under NIA), in
these circumstances, was to exercise its power of transfer
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in terms of Section 20 of the NIA Act, which the learned
Judge rightly exercised by passing a detailed and lucid
order dated 12.03.2026. The learned Principal Sessions
Judge, Kulgam, has mis-appreciated the whole facts and
the legal position which has resulted in tossing of the case
from one court to another court, as a consequence whereof,
even the inquiry of the case has not been completed despite
the challan having been presented about more than a year
before.
13)
In view of what has been discussed hereinbefore, the
reference is returned with a direction to the learned
Principal Sessions Judge, Kulgam to proceed further in the
matter in accordance with law and the legal position
discussed hereinbefore.
(Sanjay Dhar)
Judge
SRINAGAR
20.04.2026
“Bhat Altaf-Secy”
Whether the Order is speaking: YES
Whether the Order is reportable: YES/NO



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