Excelsior Correspondent
JAMMU, Dec 16: A Division Bench of Jammu & Kashmir and Ladakh High Court comprising Justice Sanjeev Kumar and Justice Mohan Lal, in a significant judgment, has held that criminal court within whose jurisdiction the crime is committed and in respect whereof a production warrant is sought, cannot reject the application for production warrant simply on the ground that no case is pending before it.
This order has been passed in an appeal filed by National Investigation Agency against the order of NIA Court whereby Chief Investigating Officer of National Investigating Agency (NIA) Sanjay Nagpal along-with Public Prosecutor filed an application under Section 267 of CrPC before the Court of Special Judge U/S 11 of the NIA Act (3rd Additional Sessions Judge) seeking production warrant against one Abdul Jabbar, son of Abdul Habib of Chandni Chowk Delhi lodged in judicial custody in District Jail Bilaspur in FIR No. 288/2017.
The case relates to large scale transfer of funds from Pakistan to India through the import of California almonds and other items via cross LoC trade facilitation centres located at Salamabad, Uri and Chakkan-da-Bagh, Poonch, for their purported use for fomenting terrorism in J&K.
It was claimed by the appellant in his application that during investigation Abdul Jabbar has been found to be involved in the LoC trade and is aware of several incriminating facts relating to the mechanism adopted by the accused to facilitate transfer of funds illegitimately for fomenting terrorism in the Union Territory of Jammu and Kashmir.
It was also averred in the application that during his examination in the jail, Abdul Jabbar had expressed his willingness to make his statement under Section 164 CrPC with regard to his acquaintance with the facts and circumstances of the case under investigation. It was thus pleaded that statement of Abdul Jabbar was required to be recorded under Section 164 CrPC for taking the investigation further.
The application was considered by the trial court and the same was rejected solely on the ground that the court was not competent to issue production warrant under Section 267 CrPC during investigation and when no case is pending adjudication before the court against the person against whom warrants have been sought to be issued.
The trial court vide its order dated 6th May 2022 passed on the application of the appellant for recording his statement under Section 164 CrPC before the competent Magistrate in connection with case RC-17/2016/NIA/DLI. It is this order of the trial court which is appealed against before DB un der Section 21 of the National Investigation Agency Act, 2008.
After hearing Deputy Solicitor General of India Vishal Sharma for the NIA, DB observed, “from Section 267(1), it clearly transpires that a criminal court, in the course of an enquiry, trial or other proceedings under the Code of Criminal Procedure, can direct a person confined or detained in a prison to be produced before the court for answering to a charge of an offence or for the purpose of any proceedings against him”.
“The criminal court is further empowered to direct the officer in-charge of the prison to produce any person who is required to be examined as a witness for the purpose of giving evidence. The word “proceedings” used in Section 267 is of paramount importance and, therefore, before we proceed further, it is necessary to analyse its meaning, ambit and scope”, the DB said, adding “Section 2(h) of the CrPC clearly provides that the word “investigation” includes all proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf”.
DB further observed that “other proceedings” which occurs in Section 267 CrPC includes investigation and, therefore, a criminal court within whose jurisdiction the crime is committed and in respect whereof a production warrant is sought, cannot reject the application for production warrant simply on the ground that no case is pending before it”.
“The order of the trial court, therefore, is not sustainable in law. The order impugned passed by the trial court cannot be termed as mere interlocutory and, therefore, we hold the appeal under Section 21 of the NIA Act maintainable against the impugned order”, the DB said and quashed the order passed by the Trial Court and directed the Trial Court to consider the application of the appellant afresh and pass appropriate orders that may be warranted in law.
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