National Investigation Agency Act, 2008: An Overview

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Introduction

The National Investigation Agency (NIA) of India is a premier federal agency tasked with combating terrorism and handling other national security-related crimes. It was constituted under the National Investigation Agency (NIA) Act, 2008. The primary aim of the NIA Act is “to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security, and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organizations and for matters connected therewith or incidental thereto.” The NIA was formed on December 31, 2008, after the Mumbai attacks, also known as the 26/11 Mumbai Terrorist Attacks. The NIA operates under the Ministry of Home Affairs and is headquartered in New Delhi. In the NIA Act, Scheduled offences are defined whereas to determine these offences let us first understand what is the Schedule of the Act. 

The schedule of the Act specifies various offences which are to be investigated and prosecuted by the National Investigation Agency (NIA). The Scheduled Offences term, in this Act, means an offence specified in the schedule which includes offences under the Atomic Energy Act, 1962, the Unlawful Activities (Prevention) Act, 1967, the Anti-Hijacking Act, 1982, the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982, the SAARC Convention (Suppression of Terrorism) Act, 1993, the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, the Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, offences under Sections 121 to 130 and Sections 489A to 489E of the Indian Penal Code, 1860. In this article, we will explore the important provisions of the National Investigation Agency Act, 2008 (NIA Act) which helps to deal with the Scheduled Offences.

Important Provisions of the National Investigation Agency Act

Some of the important provisions of the National Investigation Agency Act, 2008 are discussed as follows:

• Constitution of National Agency- Section 3: It states that “Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule. It also illustrates that the officers of the agency should have all the powers, duties, privileges, and liabilities that police officers have in connection with the investigation of offences committed therein (Scheduled offences).
• Superintendence of National Investigation Agency- Section 4: The superintendence of the Agency should vest in the Central Government. It also illustrates that the administration of the Agency should vest in an officer designated as the Director-General appointed in this behalf by the Central Government who should exercise in respect of the Agency such of the powers exercisable by a Director-General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.
• Investigation of Scheduled Offences- Section 6: On receiving information and recording under Section 154 of the Code of Criminal Procedure, 1973 (CrPC), relating to any Scheduled Offence the officer-in-charge of the police station should forward the report to the State Government. The State Government, on receiving the report, should forward the same to the Central Government as soon as possible. The Central Government, on receiving the report from the State Government should determine whether the offence is a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. This should be done within 15 days from the date of receiving the report from the State Government.

If the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it should direct the Agency to investigate the said offence. Moreover, if the Central Government believes that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. Till the Agency takes up the investigation of the case, the officer-in-charge of the police station should continue the investigation.

• Power to transfer investigation to State Government- Section 7: As per this Section of the NIA Act, “While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may-
  • if it is expedient to do so, request the State Government to associate itself with the investigation; or
  • with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.”
• Power to investigate connected offences- Section 8: The NIA has the power to investigate any other offence which the accused has committed if it is connected with the Scheduled Offence. 
• Power of Central Government to constitute Special Courts- Section 11: As per this Section, the Central Government has the power to constitute one or more Special Courts for the trial of Scheduled Offences. Section 11(3) states that a Special Court should be prescribed over by a judge to be appointed by the Central Government on the recommendation of the Chief Justice of the High Court. The Agency may make an application to the Chief Justice of the HC for the appointment of a Judge to preside over the Special Court. 
• Jurisdiction of Special Courts- Section 13: It illustrates that every Scheduled Offence investigated by the Agency should be tried only by the Special Court within whose local jurisdiction it was committed. It added, “If, having regard to the exigencies of the situation prevailing in a State if,—
  • it is not possible to have a fair, impartial or speedy trial; or
  • (b) it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or 
  • it is not otherwise in the interests of justice,

the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.” 

• Powers of Special Courts with respect to other offences- Section 14: When trying any offence, a Special Court may also try any other offence with which the accused may, under the CrPC be charged, at the same trial if the offence is connected with such other offence. If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorized by this Act or under such other law. Moreover, Special Courts also have the power to take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts, Section 16(1) of the NIA Act.
• Protection of witnesses- Section 17: The proceedings under this Act may be held in camera on the Special Court’s demand. Sub-section 2 of this Section states that the Special Court can take measures as it deems fit for keeping the identity and address of the witness secret if it is satisfied by the application made by the witness that his/her life is in danger. Considering the safety of the Witness, the Special Court can take the following measures:
  • “the holding of the proceedings at a place to be decided by the Special Court;
  • the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public;
  • the issuing of any directions for securing that the identity and address of the witnesses are not disclosed; and
  • a decision that it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.”

Any person who contravenes any decision or direction as mentioned above should be punished with imprisonment for a term that may extend to 3 years and with a fine which may extend to 1000 rupees.

• Power to transfer cases to regular courts- Section 20: It states “Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.”

Other than these provisions, the National Investigation Agency Act also grants power to the State Government to constitute a Special Court (Section 22) to deal with the Scheduled Offences. Overall, this Act plays an important role in ensuring the safety and security of the nation.