The High Court Thursday dismissed a plea by the suspended Jammu and Kashmir Deputy Superintendent of Police (DSP) Davinder Singh seeking transfer of his case from a special court in Jammu to Srinagar.
The petitioner has sought transfer of the challan to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar.
The National Investigation Agency (NIA) has submitted a charge-sheet against Davinder Singh and other accused for commission of offences under Sections 120-B, 121, 121-A and 122 of the Indian Penal Code and Sections 17, 18, 18-B, 19, 20, 23, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) and 35 of the Arms Act and Sections 4 and 5 of the Explosive Substances, Act before the Court of Special Judge (3rd Additional Sessions Judge) Jammu.
A bench of Justice Sanjay Dhar while dismissing the plea held that a case pertaining to the scheduled offence investigated by the NIA could be tried only by a Special Court that has been constituted by the Government of India (GoI) under Section 11 of the NIA Act. "The transfer of such a case can be made only to any other Special Court constituted by the GoI under Section 11 of the act and not to any other Special Court constituted under any other provision of the act," the court said.
The court issued the direction while noting that the respondents along with their reply have placed on record a copy of the notification according to which the GoI 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 NIA.
"It is thus, clear that only one Special Court in terms of Section 11 of the NIA Act has been constituted for entire Jammu and Kashmir and there is no other Special Court, constituted by the GoI under Section 11 of the Act, which is located within the jurisdiction of this High Court," the court said.
Regarding the contention of the counsel for petitioner that there is another Special Court (Additional District and Sessions Judge TATA/POTA) at Srinagar which could also try the cases investigated by NIA, the court said the contention appears to be misconceived.
"The Special Court at Srinagar has been constituted by the J&K government in exercise of its power under Section 22 of the NIA Act," the court said.
It said that the Special Court constituted under Section 22 of the act was empowered to try the cases relating to the offences under the scheduled enactments which had been investigated by the investigating agency of the J&K government.
"Therefore, 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 NIA," the court said and added that the challan which was subject matter of the present transfer petition cannot be tried by the Special Court at Srinagar.