Srinagar: The J&K High Court dismissed a plea of DySP Davender Singh seeking transfer of challan from Special NIA Court Jammu to Srinagar as the court recorded that it would be legally impermissible to transfer the said case to Srinagar Special court for ‘lack of inherent jurisdiction’.
The Court of Sanjay Dhar recorded that there is no other Special Court within the jurisdiction of High Court of Jammu and Kashmir except the one at Jammu. Hence, “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,” Justice Dhar said.
He recorded that a perusal of section 11 of the NIA Act makes it 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 only to any other Special Court constituted by the Central Government under Section 11 of the Act and 5 Trp(Crl) 11/2020 not to any other Special Court constituted under any other provision of the Act,” the court said.
The court pointed out that the Special Court constituted under Section 22 of the Act is empowered to try the cases relating to offences under scheduled enactments which have been investigated by the investigating agency of the state 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 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,” the single bench said.
“For the forgoing reasons, I find no merit in this petition. The same is accordingly dismissed,” Justice Dhar said.Earlier petitioner, Singh had 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.The transfer of challan to the Special Court (Additional Sessions Judge, TATA/POTA) Srinagar was sought on the ground that most of the witnesses whose statements are yet to be recorded by the trial Court pertain to Kashmir and as such, it would be convenient to hold the trial of the case at Srinagar.
It was 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. Furthermore, it was stated 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.Earlier National Investigation Agency had submitted a challan against the petitioner and other accused under Section 173 (2) of Cr. P. C alleging commission of offences under 2 Trp(Crl) 11/2020 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.

NUSRAT SIDIQ