The National Investigation Agency Act, 2008

What it does

The Act constitutes the National Investigation Agency as a central agency for investigating offences that affect the sovereignty, security and integrity of India. It is Act No. 34 of 2008, passed after the Mumbai attacks of that year. The Agency investigates and prosecutes offences listed in the Schedule to the Act, and the Act provides for Special Courts to try them.

The Schedule lists the statutes under which an offence is a scheduled offence. They include the Unlawful Activities (Prevention) Act, 1967 and the Atomic Energy Act, 1962, among others. The Agency may also investigate an offence connected with a scheduled offence, and it is not confined to the offence that put the case within its jurisdiction.

Who it binds

The Agency's officers have the powers, duties and privileges of police officers throughout India while investigating a scheduled offence. The Act binds State police, who must hand over the records of a case the Central Government directs the Agency to take over, and it binds the accused who is tried before a Special Court. The Central Government can direct the Agency to take over a case, and a State Government can refer one to it, so the case may arrive either from above or from the State.

What has changed, and when

The National Investigation Agency (Amendment) Act, 2019 widened the Schedule to cover further offences, including human trafficking, counterfeit currency, the manufacture or sale of prohibited arms, cyber-terrorism and offences under the Explosive Substances Act, 1908. It also gave the Agency power to investigate scheduled offences committed outside India, subject to international law and the laws of the other country, and allowed the Central Government to designate Sessions Courts as Special Courts.

Appeals from the judgment of a Special Court lie to the High Court under section 21, on facts and on law. A bail order of a Special Court is also appealable to the High Court under the same section.

What turns on it in practice

The site names the Act in its notes on criminal and sensitive litigation and on corporate and commercial law. Two features matter in practice. The first is the shift of forum. A case that would have been investigated by State police and tried by a Sessions Court is investigated by the Agency and tried by a Special Court, and the procedure for bail and custody then follows the special statute, often a stricter one. The Unlawful Activities (Prevention) Act, 1967 is the principal such statute and carries its own bail test.

The second is the scope of a scheduled offence. A person charged with a scheduled offence is within the Act, even where the allegation arose in an ordinary business setting, such as the funding of a prohibited organisation or the handling of counterfeit currency. For a company or its officers, the practical questions are whether the allegation falls within a scheduled offence at all, whether the transfer of the case to the Agency was properly directed, and which court has jurisdiction over bail.

Since the Bharatiya Nagarik Suraksha Sanhita, 2023 now supplies the general procedure for arrest, remand and bail from 1 July 2024, a challenge in an Agency case reads the two together: the general procedure in the Sanhita, as displaced or supplemented by the special provisions of this Act and of the scheduled statute.