عدالت میں مخالفین پر فائرنگ خواہ ذاتی دشمنی کی بنا پر ہی کیوں نہ ہو دہشت گردی کے زمرے میں آئے گی اور صرف خصوصی عدالت برائے انسداد دہشت گردی ہی ایسے مقدمہ کی سماعت کر سکتی یے

 2024 PCrLJ 658
Crl. Misc.8329/23
ALI NAWAZ vs State

Firing in Court premises---Post-arrest bail---Jurisdiction---Transfer of case from a Court of ordinary jurisdiction to Anti-Terrorism Court---Scope---During proceedings of the case, it was observed that place of occurrence in the present case was a court premises and injury had been caused by firing---Entry-4 of the Third Schedule of the Anti-Terrorism Act, 1997 clearly indicated that offences mentioned thereunder were exclusively triable by the Anti-Terrorism Court---Under said entry at Serial No. iii, offence of firing in the court premises was mentioned, therefore, despite the offence being result of personal vendetta where offence of terrorism was not attracted, it shall be triable by the Anti-Terrorism Court---Challan of present case had been put before the Court of Magistrate who though did not have jurisdiction but commenced the trial and entertained the bail petition as well---Counsel for the accused-petitioner submitted that he would not press the petition provided the case be transferred to Anti-Terrorism Court, so that he could move the bail petition before such Court---Though by virtue of S. 32 of Anti-Terrorism Act, 1997, an Anti-Terrorism Court is deemed to be a Court of Sessions but as the case was entrusted to the Magistrate by the Sessions Judge under S. 17 of Cr.P.C. and was also empowered to withdraw a case from the Court of Magistrate under S. 528 of Cr.P.C, therefore, Magistrate shall stay the proceedings and will submit case, with a brief report explaining its nature, to the Sessions Judge for onward transmission to the Anti-terrorism Court for its opinion---An Anti-Terrorism Court for that purpose was deemed as Magistrate authorized under S. 190, Cr.P.C. which gave powers to take cognizance of an offence on police report, private complaint and upon his own information---On taking cognizance by the Anti-Terrorism Court, it could decide the jurisdiction either to assume it under S. 19(3) of Anti-Terrorism Act, 1997, or take action under S. 23 of the said Act for transfer of case back to Court of ordinary jurisdiction and thereafter concerned Court of Magistrate could recommence the trial from the stage it was stayed under S. 346, Cr.P.C.---Course for transfer of case under S. 526, Cr.P.C. was also available, if the case was being tried by a Magistrate or Court of Session---High Court under S. 526(3), Cr.P.C. is empowered to transfer the case from Court of ordinary jurisdiction to Anti-Terrorism Court---Criminal miscellaneous petition was allowed and case was transferred to the Court of Anti-Terrorism Court---Accused could move bail petition before the Anti-terrorism Court.

Any offence of firing within the Court premises would only be tried by Anti-Terrorism Court.

Court of ordinary jurisdiction can send the case for trial to Anti-Terrorism Court.

There are two situations when the case routs from court of ordinary jurisdiction to Anti-Terrorism Court and both have different regimes. If the challan is put before any Court of ordinary jurisdiction and said Court on receiving challan considers that scheduled offence of Anti-Terrorism Act is attracted from the facts of the case, it shall return the challan to prosecution for its presentation before Anti-Terrorism Court because under section 190 of Cr.P.C. It is thea mandate of magistrate to take cognizance of only those offences which he is empowered to try or send to court of sessions for trial. This arrangement is also within the scheme of law because Anti-Terrorism Court is authorized to take direct cognizance of the offence triable by such Court without the case being sent to it u/s 190 of Cr.P.C. as mentioned u/s 19(3) of Anti-Terrorism Act, 1997, and such Court is authorized to decide the question of jurisdiction as per section 23 of Anti-Terrorism Act, 1997.

This above scheme of law also finds its place in section 201 of Cr.P.C. a provision Pari Materia to Order VII Rule 10 of Code of Civil Procedure, 1908 (return of plaint) which requires that when any court if have no jurisdiction to entertain the private complaint it should return the same for its presentation to proper Court.

While examining the material, if the Court determines as lacking of jurisdiction, it can return the challan to prosecution for presentation before the proper Court.

However, when the case is pending trial and a question of jurisdiction arises then of course challan cannot be returned to the prosecution because by the time certain court processes are on the record including the evidence that become part of judicial record which cannot be handed over to the prosecution nor can be kept in isolation in court record while detaching the challan only because evidence recorded by one Court can be acted upon by the Successor Court. In such situation the right course would be sending the challan directly by the Court of ordinary jurisdiction to the Anti-Terrorism Court.

In order to respect above mandate of law, it is incumbent upon every other Court to send the case for trial before Anti-Terrorism Court.

Cases are of two categories, i.e., where offence of terrorism in terms of section 6 of Anti-Terrorism Act, 1997 is committed and other which become triable by its inclusion in the third schedule of the Act ibid. Though for assessing the applicability of section 6, ATA, some brain storming is required keeping in view the material placed before the Court but for offence under Entry-4 of Third Schedule can on first go be sent to the Anti-Terrorism Court. If any case is pending trial before a Court of ordinary jurisdiction or any other Special Court for an offence and by virtue of an amendment such offence is included in the third schedule of Anti-Terrorism Act, 1997 the case shall immediately be sent by the Court of ordinary jurisdiction to the Anti-Terrorism Court.

The cases are usually pending trial before the Court of Magistrate, Court of Sessions or before any other Special Court; what course should be adopted for sending the case to AntiTerrorism court is tracked in some provisions of law and precedents. If the case is pending before the Court of Sessions or any Special Court which usually enjoys the status as that of Court of Sessions under the relevant law. The Anti-Terrorism Court is also considered as Sessions Court under Anti-Terrorism Act, 1997 for the purpose of trial and it has also power to take cognizance under Section 190 of Cr.P.C. as aw Magistrate, therefore, can call the record of any case pending in another Court where the applicability of offences under Anti-Terrorism Act, 1997 is attracted.

There is a consensus on the point of law that on the eve of transfer of case from Court of ordinary jurisdiction or any Special Court to Anti-Terrorism Court, it still has power to decide its jurisdiction in terms of section 23 of the Act ibid and can transfer it back to the Court having jurisdiction.

Section 346 CrPC clearly mandates to raise hands if the Magistrate lacks jurisdiction or is not empowered to try the case due to some other reasons, or decides that case should or ought to be tried by Court of Sessions, he can send the case to the Court of Sessions.