Cases Involving Only Non-Scheduled Offences Post-Abatement Must Be Transferred From Special NIA Courts To Regular Courts

An FIR (No. 96/2016) was registered involving several offenses including the Unlawful Activities (Prevention) Act (UAPA).

The investigation identified two groups of accused: 11 living individuals against whom no UAPA offenses were established, and 4 deceased individuals against whom UAPA offenses (Sections 13, 20, 38) were found.

The investigating agency filed separate charge sheets: one before the Principal Sessions Judge, Kulgam for the living accused, and another before the Special NIA Court for the deceased.

The Special NIA Court recorded that proceedings against the 4 deceased stood abated.

However, the Sessions Judge transferred the case of the 11 living accused to the Special NIA Court, arguing they must be tried together under Section 223 Cr.P.C.

The Special NIA Court disagreed, citing Section 20 of the NIA Act to transfer the case back; following a jurisdictional "tossing" of the file, the Sessions Judge made this reference to the High Court.

1. Whether a Special NIA Court retains jurisdiction to try a case when no scheduled offenses (UAPA) are established against the surviving accused.

2. Whether the Special Judge (Designated under NIA) has the statutory power to transfer a case to a regular criminal court when scheduled offenses are absent.

The court primarily applied Section 20 of the National Investigation Agency (NIA) Act, 2008, which mandates that if a Special Court, after taking cognizance, opines that an offense is not triable by it, it shall transfer the case to a court having jurisdiction under the Code of Criminal Procedure.

The court further considered Section 14 of the NIA Act, which grants the Special Court jurisdiction over non-scheduled offenses only if the accused is also charged with a scheduled offense in the same trial.

The court also noted the principle of "transactional trial" under Section 223 of the Cr.P.C. but subordinated it to the jurisdictional mandates of the NIA Act.

The Court reasoned that while Section 14 of the NIA Act allows for the trial of connected offenses, this power is contingent upon the existence of a charge for a "scheduled offense".

In this instance, since the only accused facing UAPA charges had died before the charge sheet was filed, the proceedings against them abated, leaving no surviving accused charged with a scheduled offense.

Consequently, Section 14 could not be invoked to retain the case in the Special Court.

The Court emphasized that Section 20 of the NIA Act provides a clear mechanism for transferring cases to regular courts when the Special Court finds the offenses are not triable by it.

The High Court criticized the Sessions Judge for misappreciating the legal position, noting that the abatement of UAPA charges meant the inquiry was now limited to regular penal offenses, which fall under the jurisdiction of the Sessions Court.

The High Court held that as no UAPA offenses were established against the surviving accused, the Special Court lacked jurisdiction.

The reference was returned with a direct order to the Principal Sessions Judge, Kulgam, to accept the transfer and proceed with the trial in accordance with the law.