first_imgColumnsThe Exorcism Of UAPA Shashwat Anand & Rajesh Inamdar23 Nov 2020 5:32 AMShare This – xEven after the advent of the NIA Act, 2008, covering the investigation and prosecution of offences under UAPA, the shadow of CrPC still looms large.Prior to the enactment of the National Investigation Agency Act, 2008 (‘NIA Act,’ for short), the investigation and prosecution (trial) of offences under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA,’ for short) was governed by…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginEven after the advent of the NIA Act, 2008, covering the investigation and prosecution of offences under UAPA, the shadow of CrPC still looms large.Prior to the enactment of the National Investigation Agency Act, 2008 (‘NIA Act,’ for short), the investigation and prosecution (trial) of offences under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA,’ for short) was governed by the Code of Criminal Procedure, 1973 (‘CrPC,’ for short). The Part II of the First Schedule of the CrPC sets out the ‘Classification of Offences against Other Laws.’ Under the CrPC, the offences under UAPA punishable with imprisonment for more than 7 years are triable by Court of Sessions, while, those punishable with imprisonment up to 7 years and under, are triable by Magistrate’s Courts. However, the said scheme has completely been done away with by the NIA Act. The UAPA has been listed at Serial No. 2 in the Schedule to the NIA Act. Under the NIA Act, all the Scheduled Offences, i.e., offences under the UAPA, whether investigated by the NIA or by the investigating agencies of the State Government, are exclusively triable by Courts of Session, whether or not designated as Special Courts under Section 11 or Section 22 of the NIA Act, as the case may be. In this regard, the Section 13(1) of the said Act categorically lays down that every Scheduled Offence under the NIA Act, shall exclusively be triable by a Special Court. The said legal proposition was affirmed by the 3-Judge Bench judgment of the Supreme Court dt. 12/10/2020, authored by R.F. Nariman, J., for the Court, in Bikramjit Singh vs The State of Punjab, Criminal Appeal No. 667/2020 (@ Special Leave Petition (Crl.) No. 2933/2020). Remarkably, under the NIA Act, Special Courts or Sessions Courts are Courts of exclusive Original Jurisdiction, not of referred jurisdiction, as it used to be under UAPA and is still the case under CrPc. Now, the reports by National Investigation Agency (NIA) or State Agency, i.e., police authorities, after investigation are straightway submitted to the Special Court/Sessions Judge, or such Court may take cognizance suo moto, under S. 16(1) of NIA Act, without the intermediary role of Magistrate. Manifestly, the Magistrate has no role, at all, to play under the NIA Act and as such, the provisions of S.173(2) CrPC are otiose to reports under NIA Act. Significantly, the NIA Act has adopted the device of legislation by incorporation and has incorporated within its sweep, the appropriate procedural provisions from CrPC, with a view to regulate the trial of offences before the Special Court. Notably, only those provisions of CrPC, which have been incorporated by the device of legislation by incorporation, would only apply to the proceedings under NIA Act, and none else. Furthermore, in the entire NIA Act, there is no mention of Judicial Magistrate. Accordingly, the said Magistrate’s Courts are of no moment or consequence, in so far as, the NIA Act is concerned. In other words, the Magistrate’s Courts are non-existent and alien as regards the NIA Act and the investigation and prosecution of Scheduled Offences thereunder. Despite the same, it has been seen that several Magistrate’s Courts across the country are usurping the powers of Special Courts (or Courts of Session, as the case may be) under the NIA Act, and remanding the persons, accused of scheduled offences under UAPA, unlawfully, either to police or judicial custody. It has further been seen, that applications by prosecution, under S. 43D(2) of the UAPA, are profusely being filed in the Magistrate’s Courts, either for grant of police custody or for extension of period of remand, and they are yielding to the same. As discussed earlier, the provisions of S. 43D UAPA, in toto, not having been expressly incorporated under the NIA Act, shall not apply to the Scheduled Offences to be investigated and prosecuted under the NIA Act. Further, the procedure for investigation of Scheduled Offences has been laid down under S. 6 of the NIA Act, which provides that upon recording an FIR as to commission of any Scheduled Offence, the officer-in-charge of police station shall forward the report to the State Government, forthwith; Upon receipt of the said report, the State Government shall forward it as expeditiously as possible to the Central Government for determination as to whether on the edifice of information received, the offence is a Scheduled Offence or not, and decide within 15 days from the receipt of the report, whether the same is a fit case to be investigated by the NIA, and till such time the officer-in-charge of the police station, and none else, shall continue with the investigation. It may be noted, that the provisions under Section 10 of the NIA Act which empower the State Government to investigate and prosecute offences, being qualified by the expression “Save as otherwise provided under this Act,” shall not come into play until the mandatory procedure of S. 6 has been exhausted. Moreover, as regards the grant of Bail, the same is to be found under the very scheme of the NIA Act, and not the CrPC. It is a well-known principle of procedural law, that trial of offences or provision for bail, both are interlinked, and cannot be placed under different legislations. Since, trial is to be conducted under NIA Act, therefore, the provision for bail should also be found there in the setting of the NIA Act itself. In this regard, S. 21(4) is germane, which provides, “notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.” Thus, it is clear that S. 21(4) is the source, wherefrom the right and remedy of bail under the NIA Act, without any conditions hedged in, is discernible. Accordingly, bail application is maintainable before the Special Court u/S. 21(4), shorn of any qualification or limitation for hearing the bail application. In view of the above, it is submitted that the fetters or manacles on the right of bail as laid down in S.43D(5) of UAPA Act are non-applicable in the matter of bail u/NIA Act, for the simple reason that the NIA Act has not referred to the said provision to be incorporated under this Act. Likewise, bail provisions under CrPC are also not applicable to bails under NIA Act. Hence, it is picturesque that the NIA Act is a self-sufficient and Self-Contained Code in itself. It is high time that the police authorities and the presiding officers of the Magistrate’s Courts be educated and well-acquainted with the legal regime of the NIA Act as applicable to offences under UAPA, and the restrictions imposed by the legislature. It is unfortunate that the offences under the UAPA, meant for investigation and prosecution under NIA Act, are to this day besieged by the spirits of CrPC and miscellaneous provisions of UAPA like S. 43D, whose application has been excluded from the scheme of the NIA Act by non-incorporation and the doctrine of cassius omissus. The UAPA needs an exorcism from the aged umbrae of CrPC haunting it, in favour of legal uprightness along with the rights and liberty of the people.Views are personal.(Authors are practicing Advocates in the Supreme Court of India.)Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Storylast_img read more

first_imgQPR saw off Leicester in an action-packed meeting at Loftus Road to start what manager Harry Redknapp described as a “very important period” for his side with a win. The clash with Leicester will have been seen as the first of four winnable home games for the R’s, with Burnley, West Brom and Crystal Palace all visiting west London before Christmas. And Redknapp’s players obliged with a hard-fought 3-2 win that lifts QPR above Leicester and up to 18th in the Barclays Premier League table – with goal difference the only factor keeping them in the relegation zone. Ex-Norwich midfielder Fer was the next to hammer wide before Steven Caulker was unlucky to see a well-struck shot blocked by Morgan as QPR failed to make their ever-increasing dominance pay. With his players proving so profligate, Redknapp saw his side draw level courtesy of an own goal as Morgan could only turn Caulker’s cross past Schmeichel, stumbling over the ball with Eduardo Vargas in close proximity. Green then stopped Leicester immediately re-establishing their lead as he stayed big and denied Vardy from close-range. And it was QPR who got themselves ahead before the interval as Austin finally tested Schmeichel with a point-blank header from Barton’s cross and, although the Dane kept it out, Fer was on hand to hammer his side ahead on the stroke of half-time. Leicester responded well after the interval as Mahrez saw a shot pushed away by Green before Vardy headed a cross from the Algerian against the crossbar. But the hosts remained a threat at the other end as Schmeichel did well to keep out Austin’s drilled effort, with the second half proving as free-flowing as the first as Vardy again wasted a decent chance after a quick Cambiasso free-kick caught the Rangers defence sleeping. The equaliser came shortly afterwards as the impressive Cambiasso showed fantastic composure when collecting the ball at the back post to feed substitute Marc Albrighton. His shot was blocked but Schlupp, who was still dusting himself down having been floored in the build-up, fired in a tremendous 25-yard strike to draw Pearson’ side level. Things nearly got even better for Leicester as Green went missing and Cambiasso’s header was blocked on the line by Henry, with Morgan unable to turn home the rebound. It was QPR cursing their luck next up as the chances to continued to come, with Schmeichel denying Fer from scoring a header. The hosts were ahead from the resulting corner as Onuoha saw his goal-bound effort blocked by David Nugent before Austin was on hand to head home and continue his rich vain of form – converting QPR’s 31st effort of the game as they hung on through six minutes of stoppage time. Things started badly for the hosts as Esteban Cambiasso slotted Leicester in front early on – the first the Foxes had scored following a fallow run of 56 days, or 504 minutes of football, without a goal. QPR recovered to dominate the remainder of the first-half and led at the break through a Wes Morgan own goal and a first club goal for Leroy Fer. Nigel Pearson’s side hit back in the second half as Jeffrey Schlupp drew them level, only for Charlie Austin to hit his fifth goal in as many games with 17 minutes remaining to settle the contest. Leicester fans had been starved of goals since a 2-2 against Burnley on October 5, but they only had to wait just only four minutes for the opening goal here courtesy of a measured finish from Cambiasso. Schlupp rolled the ball into Leonardo Ulloa who was challenged by Nedum Onuoha with the ball breaking kindly to Cambiasso, and the Argentina international needed no invitation to finish accurately past Rob Green and put the visitors in front. Their lead was nearly a short-lived one as Niko Kranjcar’s free-kick was deflected behind for a corner and Fer should have done better when picked out with the resulting set-piece. Riyad Mahrez had scored the Foxes last goal before today, almost nine hours ago in that draw with Burnley, and the Algeria international spurned a great chance to double the visitors’ lead as he steered Jamie Vardy’s pass wide. QPR had yet to test Kasper Schmeichel and their best chance came as Fer cut inside and played in Austin, whose effort was blocked into the path of Karl Henry – but the former Wolves man could only bend a tame shot well wide. Press Associationlast_img read more

first_imgA little more than four years ago, while cruising down PCH with my mother and sister, I got my first glimpse of it. The scene was set: sun shining, wind blowing, ocean on the horizon. The beauty of Mother Nature around me complemented the allure of what sat right in front of me — a fresh copy of the Daily Trojan. Its texture, its scent and most significantly, its content reeled me in the very moment we met back in what seemed like simpler times  — my mom still had to sign my permission slips.After browsing through different columns, stories and photos in the DT, I knew that this was something that I wanted to do. More than a hundred bylines later — it’s pretty easy to lose count — I’m publishing my last words in this publication that has meant so much to me. The Daily Trojan is one of the main reasons I decided to come to USC and it’s also why it is so hard to let go and say goodbye.From my time as a sports writer to sports editor to columnist, I’ve had my fair share of memorable moments, both on and off the page. The best part about writing is that it allows those moments to come to life.Whether I was writing a story in the middle of the night or pulling my hair in the newsroom because the basketball game was headed into its fourth overtime while on deadline, I’m lucky to be able to go back, find the headline and say, ”Oh yeah, I remember that.” Regardless of how good, bad or ugly the circumstances, I’m pretty sure I almost always had a smile on my face while writing and editing for the DT, mainly because I loved what I was doing.I’ve been blessed to be able to have this platform at my disposal at least once a week for the past three years, and its value shouldn’t be taken for granted. It has the power to share people’s stories, catalyze change and start dialogue about important issues both on our campus and around the world. From what I’ve learned, words are never greater than sports themselves, but they do possess the capacity to draw awareness — to a sport, an athlete or an overarching theme.With great power also comes great responsibility that many of my readers, time and time again, held me accountable for, providing me with a variety of funny stories and learning experiences along the way. I’ve been publicly called names and slurs. I’ve been blatantly told that my opinions or predictions were erroneous. I’ve even received death threats— thanks to O.J. Simpson, ironically.I’m human and I’ve been wrong, sometimes very wrong. The 2015 Stanford football team is responsible for that one, but right or wrong, I never stopped coming back, putting my head down and getting back to writing the next day.It’s cliche, but you get out what you put into an experience, and I threw down almost all of my marbles. Hours of writing and editing, laying out pages in the newsroom, conducting interviews, sending e-mails to Sports Information directors: It all surely adds up over time. My friends always asked me why I was inflicting all of this responsibility on myself, and I think I’ve finally found an answer for them.You see, the DT is a lot like that clingy significant other. As hard as you try to get rid of them or spend time apart, they keep managing to find ways to stay with you. I couldn’t get away from the DT. From the plains of rural Indiana to the “Windy City” to the beaches of Orange County, it was always there, so naturally, I did everything I could to keep it happy. Sometimes that required writing on my phone at the Lakers’ game, ditching class to cover a press conference, or working on a breaking news story on a bus filled with a bunch of fraternity drunkards. As we prepare to actually part ways for real now, though, I look back and know that it was all worth it.There’s so much I’m going to miss. There are the media scrums with one of four head football coaches, who were hired or fired at what seemed like the most inopportune times. There’s the Pac-12 after dark, AKA 8 p.m. basketball games that allowed me to flirt with deadlines. Finally, there’s the coaches, student-athletes and Sports Information directors who I’ve had the great privilege of working with and learning more about over the years.From my first interview with former women’s basketball coach Michael Cooper, to my last one with Athletic Director Pat Haden, and everything in between, it’s been quite the ride.Words are powerless to express my gratitude to all of them, and not to forget, to each and every person who took time out of their day to read one of my stories or columns: I hope I didn’t let you down.Last but not least, I have to thank every single one of my amazing colleagues, editors, writers and photographers alike, that I’ve had the pleasure of knowing in both the past and present. Like the Trojan family, the DT family is something that is very real and it possesses a sort of gravitational pull that never really lets go.I’m not going to lie: The thing I’m going to miss most is being that kid from the DT. It’s a brand that was cast on me early in my college career and one I still embrace today. It’s one of the many things that is keeping me from wanting to pick up my fingers from the keyboard for the last time. If only I could get in one more word, phrase or paragraph.Sadly, Father Time has finally caught up to me. Now that he has, I’m going to drive off into the sunset where it all started, a copy of the DT in one hand and four unforgettable years of writing for this paper in the other, because like words in print, the memories you make at the DT  last forever.Darian Nourian is a senior majoring in print and digital journalism. His column, “Persian Persuasion,” ran Thursdays.last_img read more