HC dismisses plea of suspended DySP involved in terror case seeking transfer of case

16/04/2021

JAMMU, Apr 15: In much publcizied terror funding case in which suspended DySP Davinder Singh was involved who filed an application in the High Court Seeking transfer of the case from Jammu to Srinagar.
Justice Sanjay Dhar after hearing Sr. Adv ZA Qureshi with Adv Rehana Fayaz for the applicant whereas Assistant Solicitor General of India Vishal Sharma appearing for the NIA, dismissed the petition as there is no merit in the petition.
Justice Sanjay Dhar while dismissing the petition observed that the Special Court constituted at Srinagar in terms of SRO 149 lacks inherent jurisdiction to try the cases pertaining to offences under scheduled enactments which have been investigated by the National Investigating Agency. That being the case, the challan which is subject matter of the present transfer petition cannot be tried by the Special Court at Srinagar and, as such, it would be legally impermissible to transfer the said challan from the Special Court, Jammu to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar.
Justice Sanjay Dhar further observed that as already noted there is no other Special Court within the jurisdiction of High Court of Jammu and Kashmir except the one at Jammu, therefore, even if it is assumed that the petitioner has any ground for seeking transfer of the challan to any Court other than the one at Jammu, this Court cannot come to his rescue.
The petitioner has filed the instant petition under Section 407 of Code of Criminal Procedure seeking transfer of challan pending against the petitioner from the Special Court (3rd Additional Sessions Judge, Jammu to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar for trial.
It is averred in the petition that National Investigation Agency has submitted a challan against the petitioner and other accused under Section 173 (2) of Cr. P. C alleging commission of offences under Sections 120-B, 121, 121-A & 122 IPC and Sections 17,18, 18-B, 19, 20, 23, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) & 35 of Arms Act read with Sections 4 & 5 of the Explosive Substances, Act before the Court of Special Judge (3rd Additional Sessions Judge) Jammu.
The transfer of aforesaid challan to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar has been sought on the ground that most of the witnesses whose statements are yet to be recorded by the learned trial Court pertain to Kashmir division and, as such, it would be convenient to hold the trial of the case at Srinagar. It is further contended that the petitioner is a resident of Indra Nagar, Srinagar where his family is also residing and that he has no relation at Jammu where the trial is to be conducted. It is averred that some of the lawyers at Jammu have refused to accept the brief of the petitioner and it would be very expensive for the petitioner to engage a Lawyer from Kashmir to defend the case on his behalf at Jammu. For the aforesaid reasons the petitioner has sought the transfer of the challan from Jammu to Srinagar.
ASGI Vishal Sharma resisted the petition by filing reply thereto. In their reply respondents No. 1 and 2 have contended that there is no ground for transfer of the case from Jammu to Srinagar. It is further contended that merely because some of the witnesses to be examined in the case are from Kashmir Valley does not offer a ground for transfer of challan from Jammu to Srinagar. It is further contended that in terms of Article 39- A of the Constitution of India, the petitioner is entitled to free legal aid in case he is unable to engage a counsel in Jammu. Lastly it has been contended that there is only one Special Court in whole of the Union Territory of Jammu and Kashmir i.e., 3rd Additional Sessions Court, Jammu which has been designated as a Special Court in terms of Section 11 of the National Investigation Agency, Act ( for brevity 'NIA Act') and as such the challan which is subject matter of the instant petition cannot be tried by any other Court in Union Territory of Jammu and Kashmir .
Justice Sanjay Dhar after hearing both the sides observed that it is an admitted case of the parties that the case in which the petitioner is facing trial before the Special Court, at Jammu has been investigated by National Investigating Agency which is an agency of the Central Government. Section 11 of the NIA Act empowers the Central Government to constitute one or more Special Courts for trial of scheduled offences. Section 13 of the same Act provides for jurisdiction of the Special Court.
Justice Sanjay Dhar observed that from a perusal of the provision it is clear that notwithstanding anything contained in the Criminal Procedure Code, every scheduled offence investigated by the NIA is to be tried only by the Special Court within whose local jurisdiction it was committed. It further provides that High Court has power to transfer a case pending before a Special Court situated in the State to any other Special Court within the State. Thus, it is clear that a case pertaining to scheduled offence investigated by the NIA can be tried only by a Special Court that has been constituted by the Central Government under Section 11 of the Act. Transfer of such a case can be made to only to any other Special Court constituted by the Central Government under Section 11 of the Act and not to any other Special Court constituted under any other provision of the Act.
Justice Dhar further observed that contesting respondents along with their reply have placed on record a copy of the Notification bearing No. S.O 4154 (E), according to which the Central Government has in consultation with the Chief Justice of Jammu and Kashmir designated the Court of TATA/POTA at Jammu as a Special Court for the purposes of sub- section (1) of the Section 11 of the NIA Act for trial of the Scheduled Offences investigated by the National Investigation Agency. The notification further provides that jurisdiction of the Special Court extends throughout the Union Territory of Jammu and Kashmir. It is thus, clear that only one Special Court in terms of Section 11 of the NIA Act has been constituted for whole of the Union Territory of Jammu and Kashmir and there is no other Special Court, constituted by the Central Government under Section 11 of the Act, which is located within the jurisdiction of this High Court.
Counsel for the petitioner has vehemently argued that there is another Special Court constituted at Srinagar which can also try the cases investigated by the National Investigation Agency. He has placed on record a copy of the Notification SRO 149 dated 01.03.2019, where under Court of Additional District and Sessions Judge, (TATA/POTA), Srinagar has been designated as a Special Court for Kashmir province for the purposes of trial of offences under the Unlawful Activities (Prevention) Act, 1967.

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