Dismissed

Jagdish Singh v. State of Rajasthan through Pp

Rajasthan HC20 Sept 2018CRLAD/80/2018

Case brief

AI extract

What is this about?

Appeal against dismissal of an objection to the jurisdiction of a Special Court under the National Investigation Agency Act, 2008. The High Court distinguished a contrary Patna High Court judgment, holding that when the State Government refers a scheduled offence to the Central Government under Section 6, the subsequent continuing investigation remains under the Act.

What did the court decide?

Appeal dismissed; jurisdiction of the Special Court affirmed for continuing investigation.

Jagdish Singh Vs State of Rajasthan… — Constitutional and Fundamental Rights | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Criminal Appeal No. 80/2018

¶3

Jagdish Singh S/o Shri Ram Lal B/c Purohit, R/o Biti, P.s. Kishangarh, Distt. Ajmer

¶4

----Appellant

¶5

Versus

¶6

State Of Rajasthan Through P.P.

¶7

----Respondent For Appellant(s) : Mr. Pradeep Kumar Choudhary Mr. Wasim Qureshi For Respondent(s) : Mr. Anurag Sharma, AAG with Mr. Aniroodh Mathur

¶8

HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

¶9

Judgment

¶10

20/09/2018

¶11

By this criminal appeal, a challenge has been made to the order dated 01.02.2018 passed by the Sessions Judge, Jaipur Metropolitan, Jaipur on application under Section 20 of the National Investigation Agency Act, 2008 (for short “the Act of 2008”). The application was filed to raise objection about jurisdiction of the court to try a case for offences under Section 14/24 of Atomic Energy Act, 1962 (for short “the Act of 1962”) and Sections 379 and 120-B IPC along with Section 3 of Prevention of Damage to Public Property Act, 1984 (for short “The PDPP Act”).

¶12

It is stated that investigation of the case was conducted by the State Agency, thus trial of the case cannot be held by the Special Court, which is the Sessions Court as per Section 22 of the

¶13

(2 of 12)

¶14

[CRLAD-80/2018]

¶15

Act of 2008 in absence of a Special Court. The investigation was conducted under the Code of Criminal Procedure (for short “Cr.P.C.”) and not under the Act of 2008. The application filed by the appellant has yet been dismissed, thus appeal has been filed under Section 21(1) of the Act of 2008.

¶16

It is submitted that after registration of the case, SHO concern found offence under the Act of 1962, which is a scheduled offence under the Act of 2008, thus it was sent to the State Government as per Section 6 of the Act of 2008. The State Government, thereupon, sent the matter to the Central Government in reference to the same provision. The Central Government did not assign investigation to National Investigation Agency by exercising its power under Sub-section (3) of Section 6 of the Act of 2008. It is after determining as to whether offence committed by the accused is a Scheduled offence or not having regard to the gravity of offence and other relevant factors, fit to be investigated by the Agency i.e. National Investigation Agency (NIA). The aforesaid decision was required to be taken within fifteen days from the date of receipt of the report. The Central Government has failed to assign the investigation either to the National Investigation Agency or the State Government. In view of the above, continuance of the investigation by the State Government could not have been taken under the Act of 2008 but under Cr.P.C. and in that eventuality, the trial cannot be conducted by a Special Court constituted under the Act of 2008, or in absence of it, the sessions court.

¶17

A reference of Section 10 of the Act of 2008 has been given. It is to show that notwithstanding anything contained under the Act of 2008, the power remains with the State Government to

¶18

(3 of 12)

¶19

[CRLAD-80/2018]

¶20

investigate and prosecute scheduled offence under any law for the time being in force. The aforesaid provision allows the State Government to investigate scheduled offence under Cr.P.C.

¶21

In view of the above, the investigation in this case was conducted under Cr.P.C. and not under the Act of 2008. As a result of which, the trial of this case could not have been by the Special Court constituted under Section 22 of the Act of 2008 or in absence of a Special Court, by a Court of Sessions. The objection aforesaid was raised by the petitioner by making an application but it has been dismissed without dealing legal issue raised therein. The prayer is to set aside the order dated 01.02.2018 and application be accepted after holding that trial of the case cannot be conducted by the Special Court under the Act of 2008.

¶22

A reference of the judgment of Full Bench of Patna High Court in the case of Bahadur Kora Vs. State of Bihar reported in 2015 Crl.L.J.2134 has been given. Therein, a similar issue was considered and decided by the Patna High Court. The ratio propounded therein applies to the facts of this case and, accordingly, the appeal may be allowed.

¶23

Mr. Anurag Sharma, learned Additional Advocate General has contested the appeal. It is submitted that the trial court has rightly dismissed the application moved by the appellant. The trial of this case by the Special Court for the scheduled offences under the Act of 2008 has rightly been taken. Reference of Sub-section (7) of Section 6 of the Act of 2008 has been given to show that after a matter is referred to Central Government under the Act of 2008 and if no decision is taken, the investigation is to be continued by the State Agency. The continuance of such investigation then remains under the Act of 2008 and not under

¶24

(4 of 12)

¶25

[CRLAD-80/2018]

¶26

Cr.P.C. It is looking to fact that State Government had referred the matter to the Central Government under the Act of 2008 thus from the side of the State Government, it was taken under the Act of 2008. Once it was taken under the Act of 2008 with required process given under Section 6 of the Act of 2008, it cannot be taken under Cr.P.C. The investigation under Cr.P.C. can also be conducted for scheduled offence, if State Government takes decision not to forward the case to the Central Government under the Act of 2008 but to investigate it under any other law for the time being in force. It is by exercising its rights under Section 10 of the Act of 2008.

¶27

In the instant case, the State Government has not proceeded under Section 10 of the Act of 2008 though liberty exists to investigate scheduled offence under any other law, for the time being in force, than the Act of 2008. A discretion for it lies with the State but was not exercised, thus trial court has rightly dismissed the application to continue the trial under the Act of 2008. A reference of Section 7 and 22 of the Act has also been given to show that cases of scheduled offence can be tried by the Special Court alone unless the investigation has been made under Cr.P.C. The prayer is accordingly to dismiss the appeal.

¶28

We have considered rival submissions made by learned counsel for the parties and perused the record.

¶29

The issue for our consideration is as to whether trial of the offence under the Act of 1962 can be conduced by the Special Court and in absence of its constitution, by the Sessions Court. To answer the question aforesaid reference to Sections 6, 7, 10 and 22 of the Act of 2008 are relevant thus are quoted hereunder:-

¶30

(5 of 12)

¶31

[CRLAD-80/2018]

¶32

“6.Investigation of scheduled offences-

¶33

(1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith. (2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. (3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation.

¶34

7.Power to transfer investigation to State Government.

¶35

While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may— (a) if it is expedient to do so, request the State Government to associate itself with the investigation; or (b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.

¶36

10.Power of State Government to investigate scheduled offences-

¶37

Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and

¶38

(6 of 12)

¶39

[CRLAD-80/2018]

¶40

prosecute any Scheduled Offence or other offences under any law for the time being in force.

¶41

Power of State Government to constitute Special Courts. - (1) The State Government may constitute one or more 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 constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely- (i) references to "Central Government" in sections 11 and 15 shall be construed as references to State Government; (ii) reference to "Agency" in subsection (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 constituted 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 7 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 constituted 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 constituted.”

¶42

It is not in dispute that after registration of the case, the Station House Officer concerned sent the matter to the State Government finding it to be of scheduled offence under the Act of 2008. The State Government sent the matter to the Central Government as per Section 6 of the Act of 2008. It is also a fact that Central Government has not made any communication either to assign the investigation to NIA or to the State Government, that too, after determining as to whether it is a scheduled offence

¶43

(7 of 12)

¶44

[CRLAD-80/2018]

¶45

or not as required under Section 6 (3) of the Act of 2008. In the aforesaid factual situation, the continuance of the investigation by the State Government for scheduled offence is to be taken under Cr.P.C. or under the Act of 2008.

¶46

To answer the issue aforesaid, reference of sub-section (7) of Section 6 of the Act of 2008 would be relevant. It provides that till Agency takes up the investigation of the case, it shall be duty of the officer-in-charge of the Police Station concerned to continue the investigation. Sub-section (7) of Section 6, no doubt, does not clarify that the continuance of the investigation would be under the Act of 2008. However, cojoin reading of Section 6 and 10 of the Act of 2008 makes it clear that State Government can take a decision to get investigation of the case under the Act of 2008 or under any other law for the time being in force. Once a matter is referred to the Central Government under Section 6 of the Act of 2008 then investigation has to be treated under the Act of 2008. The Central Government can assign it to the Agency and till it is taken over by the Agency, to be continued by State Investigation Officer.

¶47

In this case, State Government sent the matter to the Central Government thus it did not take a decision to investigate the case by exercising its power under Section 10 of the Act of 2008. It provides that nothing contained in the Act shall have a effect on the powers of the State Government to investigate and prosecute any scheduled offence or other offence under any law for the time being in force.

¶48

Section 10 of the Act of 2008 make it clear that the State Government can independently cause investigation for the scheduled offences without taking it under the Act of 2008. In the

¶49

(8 of 12)

¶50

[CRLAD-80/2018]

¶51

instant case, the Station House Officer had sent the matter to State Government as per Section 6 of the Act of 2008. The State Government then sent it to the Central Government, thus from the side of State Government, a decision was taken for investigation under the Act of 2008. The Central Government did not take a decision on it thus as per Sub-section 7 of Section 6 of the Act of 2008, the investigation was continued by the State. It is to be taken under the Act of 2008. The investigation could have been taken under Cr.P.C. if the State Government would have taken a decision not to send the matter to the Central Government as per Section 6 of the Act.

¶52

Section 22 provides for constituting of a Special Court. Subsection (3) of Section 22 provides that in absence of the Special Court, the jurisdiction would lie with the Sessions Court.

¶53

In view of the facts of this case, we are of the opinion that continuance of the investigation by the State Government after referring the matter to the Central Government was nothing but under the Act of 2008 and not under Cr.P.C.

¶54

In view of the above, we do not find that the Special Court has no jurisdiction to try the offences in the present case.

¶55

The reference of the judgment of Patna High Court in the case of Bahadur Kora (supra) has been given. The Full Bench of the Patna High Court has decided various issues referred to it. A finding has been recorded that the Special Court can conduct the trial only when investigation of a case is entrusted to an Agency. Learned counsel for the appellant has given specific reference of para 36 to 39 of judgment to support his argument. The aforesaid paras are quoted hereinunder:-

¶56

(9 of 12)

¶57

[CRLAD-80/2018]

¶58

“36. Two functions are entrusted to the State Government under the N.I.A. Act. The 1st is under Section 6(2) of the N.I.A. Act wherein it is placed under obligation to forward the report as to the information relating to any scheduled offence to the Central Government expeditiously, on being required under subsection (1); the second is to create and constitute a special court under Section 22 of the Act. The mention of the State Government in Sections 7 and 10 is more to remind it, of its restricted role if the investigation of a particular "scheduled offence" is entrusted to the N.I.A. At the same time, as long as the investigation of a case is not entrusted to the N.I.A., the powers of the State Government and its investigating agencies remains intact and the investigation and trial of such cases must be proceeded under the Cr.P.C. without any reference to the Act.

¶59

“37. The interpretation placed in Aasif's case (supra), particularly in paragraph-44 of the judgment, did not take note of another important provision. Section 6(3) mandates that within 15 days from the date of receipt of report from the State Government, the Central Government is placed under obligation to determine (a) whether the offence is a scheduled offence or not; (b) whether, having regard to the gravity of the offence and other related factors, it is a fit case to be investigated by the N.I.A. Till this twin exercise is undertaken, the occasion for the N.I.A. to take up the investigation does not arise. Aasif's case (supra) proceeds as though the State Government can take up the investigation under the N.I.A. Act, without or independent of exercise comparable to the one under sub-section (3). When the N.I.A. itself cannot investigate any matter unless entrusted to it by the Central Government, the question of any investigating agency in the State undertaking such investigation, without there being entrustment by the Central Government, does not arise. As pointed out earlier, the State Investigating Agency assumes power to investigate a scheduled offence in accordance with the procedure prescribed under the Act only when the N.I.A. transfers the investigations to it, that too, with the previous approval of the Central Government.

¶60

The acceptance of the view expressed by the Division Bench in Aasif's case (supra) would lead to a situation where the investigating agency, provided for under the Cr.P.C. or the Courts functioning thereunder would not be entitled to deal with the cases

¶61

(10 of 12)

¶62

[CRLAD-80/2018]

¶63

not only arising under the cases included as item Nos. 1 to 7 of the Schedule of the Act, but also any offence against the State, punishable under Chapter VI comprising of Sections 121 to 130, or the offences pertaining to currency notes and bank notes punishable under Sections 489-A to 489-E of Indian Penal Code.

¶64

It is a different matter that as soon as the commission of offence under the Acts or provisions mentioned in the schedule are noticed and statement under Section 154 Cr.P.C. is recorded, an Investigating Officer in the State is placed under obligation to forward the report to the State Government under subsection (1) of Section 6 of the Act and the latter, in turn, is required to forward the report to the Central Government under sub-section (2). If the Central Government decides to entrust the investigation to N.I.A., the State Investigating Agencies virtually have no role to play except that their assistance can be taken under Section 7(a) of the Act. However, if the Central Government does not pass any order entrusting the investigation to N.I.A. within fifteen days from the date of receipt of the report from the State Government, investigation of the offence can be undertaken by the State Investigating Agency without any reference to the provisions of the Act.”

¶65

Para 36-37 quoted above holds that till Central Government assigns the investigation to an Agency after undertaking exercise given under Section 6(3) of the Act of 2008, the State Government cannot take up the investigation under the Act of 2008. Section 6(7) of the Act of 2008 was not brought to the notice of the Court. It provides that if the matter was sent to the Central Government and till Agency takes over the investigation, the officer-in-charge of the police station would continue the investigation. The investigation by the State has not been barred under Section 6 of the Act of 2008, rather to be continued pending decision by the Central Government and till it is taken over by the Agency. We are unable to accept the view contrary to Section 6(7)

¶66

(11 of 12)

¶67

[CRLAD-80/2018]

¶68

of the Act of 2008. It is also a fact that the case before Patna High Court was not on the same facts, as exist in the present case. In the said case, the State Government did not take any action as given under Section 6 of the Act of 2008. It would be coming out from para 41 in the case (supra) and is quoted thus:-

¶69

“41.On facts it is clear that in none of the cases herein (a) the Central Government or the State Government has taken any steps under Section 6 of the Act; (b) the N.I.A. has transferred the investigation of the trial of the offence to the State Government under Section 7; (c) the State Government did not constitute any special court under Section 22; The occasion to forward a case to the court of sessions under Sub-section (3) of Section 22 would arise only if the case was transferred to the State Government by the N.I.A. Admittedly, no such eventuality has taken place. The result is that the very forwarding of the cases to the Court of Sessions or the taking cognizance of the offences by the court of sessions, directly, on the basis of the judgment of this Court in Aasif's case (supra) is untenable. As a consequence, the appeals preferred under Section 21(4) of the Act become not maintainable.”

¶70

On facts, the judgment of Patna High Court cannot be applied. We have already recorded our opinion that the State Government is having liberty to conduct the investigation under any other law for the time being in force than the Act of 2008. That can be even for the scheduled offence. The rights in that relation have been given under Section 10 of the Act of 2008 but if the State Government takes a decision to proceed under the Act of 2008, investigation cannot be governed by Section 10 but would be under the Act of 2008. A reference of Section 6 (7) of the Act of 2008 has been given by us while discussing the issue aforesaid. In the case before the Patna High Court, the State Government did not take any steps to proceed under the Act of

¶71

(12 of 12)

¶72

[CRLAD-80/2018]

¶73

2008, as is coming out from para 41 of the judgment quoted above. On the facts of that case, Patna High Court had decided the issue holding that the Special Court cannot try the case.

¶74

In view of the discussion made above, we do not find any merit in the appeal. It is, accordingly, dismissed.

¶75

(DINESH CHANDRA SOMANI),J

¶76

(M.N.BHANDARI),J

¶77

MohitR19

Jagdish Singh v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Jagdish Singh v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rakesh Sahu S/O Shri Arjun Sahu B/C Teli Vs State of Rajasthan through Pp

Ravindra S/O Ratnaram B/C Jat Vs State of Rajasthan through Secretary Home, Secretariat

Mohammad Asif Vs State of Rajasthan through Pp

Badri Lal Vs State of Rajasthan through Pp

Kalu Singh S/O Shri Kailash Singh Vs State of Rajasthan through P.P.

Kalu Ram S/O Shri Deva Ram B/C Raigar Vs State of Rajasthan