NIA Court frames charges against Naved, others

NIA court today framed charges against Pakistani LeT Militant Naved and five others. Special Judge NIA Kishore Kumar observed that “The question relating to forming of an opinion at the time of framing of charge is different from a case of recording of reasons on the basis of which an order of discharge of the accused may be passed. The moment the order of discharge is passed it is imperative to record the reasons. But for framing of charge the court is required to form an opinion that there is ground for presuming that the accused has committed the offence. In case of discharge of the accused the use of the expression “reasons” has been inserted in Sections 227,239 and 245 Cr.P.C. At the stage of framing of a charge the expression used is opinion. The reason is obvious. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial. The Judge is required to record reasons only if he decides to discharge the accused. But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. But where the question of jurisdiction is raised and the trial court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea relating to jurisdiction has to be recorded.”
Court is of the considered view that there are sufficient grounds to presume that this is a case for trial and if any defense as projected by the Ld. Counsel for the accused that has to be determined during trial.
In the present case, on the basis of the material on record prima facie in shape of the facts of the case as emerging in the documents collected and statements of the witnesses recorded by the investigating agency, there is sufficient material on record for framing charge against the accused persons. Meanwhile Special Judge NIA Kishore Kumar also rejected the application filed by the counsel of Mohd Naved seeking rejection of the police report/challan presented by National Investigation Agency on the ground that the NIA came to present a police report/challan being designated as Special Court. It is further averred in the application that the NIA has also been a creation of the NIA Act 2008, wherein besides its creation has also been provided that what procedure, the agency has to follow to conduct its investigation and the procedure to be followed thereafter. It is further averred that the NIA has acted in terms of the provisions of the Act and has conducted the investigation under the Central Cr.P.C. 1973 as has been provided under the Act, which code is not extended to the State of J&K and as such, the whole investigation being conducted by the agency is without any jurisdiction and the agency has failed to provide any provision of law by virtue of which it can be stated that in the absence of the Central Code being operational and functional within the State of J&K, the word code used and referred under the Act would be construed and meant the State Cr.P.C. 1989 (1933 AD) and in the absence of the same, the whole investigation of the NIA is faulty without any jurisdiction, as such, the present application and has accordingly prayed for rejection of the police report/challan.
Court is of the view that provisions of NIA Act, nothing remains to be decided as both these sections makes it crystal clear that the provisions of J&K Cr.P.C. can be invoked by NIA while discharging their official duties and investigate the matter as in the present case under the command of orders passed by Central Govt of India. The investigating officer is invested with the powers that wherein he is discharging his duties, he automatically assumes the power of an Officer Incharge of the police station in local jurisdiction of the police station. I do not find any illegality conducted by the NIA while dealing with the investigation of the case which to my firm view has been done as per the mandate of NIA Act 2008 and In view of the above discussion, Court do not find any ground to allow the application filed by accused no. 1 through his counsel (Amicus-curie) for the rejection
of the police report/challan
presented by NIA. —JNF

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