Hon'ble Ajai Kumar Srivastava-I,J.
(Delivered by Hon'ble Ajai Kumar Srivastava-I, J.)
1. The petitioner, by means of the instant writ petition, is seeking the following reliefs :-
(i) To issue the writ of mandamus, to direct Respondent No.3 to take over the investigation of Case Crime/F.I.R. No.0004 of 2021 registered at Police Station-ATS, Lucknow, wherein investigation is being conducted by the respondent no.5.
(ii) To issue a writ, order or direction in the nature of mandamus to direct the respondent no.3 to investigate the role of Respondent No.4 i.e. Special Task Force in fabricating evidences and falsely implicating the petitioner as well as the co-accused in the alleged heinous crimes in the name of the PFI under monitoring of this Hon'ble Court or under supervision of Hon'ble sitting judge of this Hon'ble High Court, as this Hon'ble Court may deem fit, just and proper, in the interest of justice and equity".
2. In order to appreciate the controversy involved in this writ petition, it is necessary to set out the relevant facts, herein below : -
3. The petitioner and his friend, namely Firos K. C., are residents of the State of Kerala and are admittedly members of Popular Front of India (hereinafter referred to as "PFI"), having its Head Office at Delhi. They are said to have been arrested on 11.02.2021 at Mughal Sarai Railway Station when they were going to Lokmanya Tilak Terminus, Mumbai from Katihar, Bihar. It is further stated that the First Information Report bearing No.0004 of 2021 dated 16.02.2021 has been lodged in this connection under Sections-120-B, 121A of I.P.C., Section 3 and 5 of Arms Act, Sections-3, 4 and 5 of Explosive Substances Act, 1908, Sections-13, 16, 18 & 20 of Unlawful Activities (Prevention) Act (hereinafter referred to as "UA (P) Act)" at Police Station-ATS, District-Lucknow disclosing their arrest from Kukrail Jungle, Lucknow on 16.02.2021. It is also stated by the petitioner that the petitioner's wife, namely, Smt. Mohsina M. T. filed an application dated 15.02.2021 before Circle Inspector of Police, Pandalam, Police Station, Kerala for tracing the whereabouts of her husband i.e., the petitioner, which was registered as F.I.R. No.0250 of 2020, under Section 57 of Kerala Police Act, 2011. The wife of Firoz K. C., namely, Smt. Soujath also filed a similar complaint, which was registered as F.I.R. No.0113 of 2021, under Section-57 of Kerala Police Act, 2011 at Police Station-Badagara, District-Kozhikode Rural, Kerala, for tracing the whereabouts of her husband. According to the petitioner, F.I.R. No.0004 of 2021 has been lodged at Police Station-ATS, District-Lucknow after illegally detaining the petitioner for the sole reason that the petitioner and his friend, Firoz K. C. are members of the PFI.
4. We have heard Mohd. Tahir and Mohd. S. M. Alavi, learned counsel for the petitioner, Sri S. N. Tilhari, learned A.G.A. appearing for the State-respondents, Sri Anurag Kumar Singh, learned counsel for Central Bureau of Investigation (hereinafter referred to as "CBI") and considered the record available before us.
5. Learned counsel for the petitioner has contended that the respondent no.7/First Informant has got a case registered under the provisions of Sections-120-B, 121A of I.P.C., Section 3 and 5 of Arms Act, Sections-3, 4 and 5 of Explosives Substance Act, 1908, Sections-13, 16, 18 & 20 of UA (P) Act at Police Station-ATS, District-Lucknow. Pursuant to the F.I.R. No.0004 of 2021, the investigation has been undertaken by the State Agency. After conclusion of the investigation and during the pendency of the present writ petition, police report has also been filed, which is unsustainable in the eye of law, being contrary to mandatory provisions of Section 6 of National Investigation Agency Act (hereinafter referred to as the "NIA Act").
6. Elaborating his contention, he has further stated that Section 6 (3) of the NIA Act provides that on receipt of the report from the State Government, the Central Government shall determine on the basis of the information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, 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 National Investigation Agency (hereinafter referred to as "Agency").
7. In view thereof, learned counsel for the petitioner has submitted that if the provisions of Sections 6 (3) & 10 of the NIA Act are read in a purposive and meaningful manner, then in the absence of determination by the Central Government as to whether offence is "Scheduled Offence" or not and also whether having regard to the gravity of offence and other relevant factors, the present matter arising out of FIR No.0004 of 2021 is to be investigated by the Agency, the provisions contained in Section 10 of the NIA Act would not enable the State Agency to investigate any scheduled offence due to occurrence of words "Save as otherwise provided in the Act" in Section 10 of the NIA Act. Therefore, the exercise of completing the investigation and submission of the police report by respondent no.6 is illegal.
8. To substantiate his aforesaid argument, learned counsel for the petitioner has placed reliance upon the judgment in the case of State of Andra Pradesh through Inspector General, National Investigation Agency vs. Mohd Hussain Alias Saleem and in the matter of Pragya Singh Thakur vs. National Investigation Agency reported in (2014) 1 SCC 258. Hon'ble Supreme Court, in para 19, has held as under :-
"19. We cannot ignore that it is a well-settled canon of interpretation that when it comes to construction of a section, it is to be read in its entirety, and its sub-sections are to be read in relation to each other, and not disjunctively. Besides, the text of a section has to be read in the context of the statute. A few sub-sections of a section cannot be separated from other sub-sections, and read to convey something altogether different from the theme underlying the entire section. That is how a section is required to be read purposively and meaningfully."
9. Per contra, learned A.G.A. has submitted that in the absence of any determination by the Central Government as stipulated under Section 6 (3) of the NIA Act, the State Agency is fully competent to undertake the investigation in respect of scheduled offence and other offences and to conclude it in accordance with the law in view of the provisions of Section 6 (4), (5) and (7) read with Section 10 of the NIA Act. He has further contended that while exercising such powers, the investigation by the State Agency has been concluded and the police report has also been submitted to the competent court constituted under Section 22 of the NIA Act.
10. To support of his arguments, learned A.G.A. has placed reliance upon the judgments in the case of Hussna vs. National Investigating Agency and another reported in 2017 (4) ADJ 489 (DB) (LB), Mantu Sharma vs. State of U.P. reported in 2017 (6) ALJ 133, Mohd. Umar and others vs. State of Rajasthan and another reported in 2016 Cr.L.J. 437 and Aqil Hussain vs. State of NCT of Delhi and others reported in 2021 Cr.L.J. 1405, wherein it has been held that in the absence of determination by the Central Government under Section 6 (3) of the NIA Act, the State Government exercising the power conferred upon it under Section 10 of the NIA Act is competent to investigate the scheduled offence.
11. For a proper appreciation of the contentions arising herein, it would be appropriate to notice a few relevant provisions of the NIA Act, which are quoted herein below :-
(3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, 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.
(4) Where 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 shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion 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.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation."
Section 10- Power of State Government to investigate Scheduled Offences. Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force.
12. Thus, from a bare perusal of Section 6 of the NIA Act, it is abundantly clear that it prescribes the manner of investigation of the scheduled offence listed in the Schedule attached to the NIA Act. It provides that a Police Officer, In-charge of the Police Station, on receipt of the report of the offence shall forward the same to the State Government forthwith, which, in turn, shall forward the report to the Central Government, as expeditiously as possible.
13. On the receipt of the report of the State Government, the Central Government has to decide and determine based on the information made available by the State Government or received from other sources, within fifteen days from the date of the receipt of the report, 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.
14. It also stipulates that 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 shall direct the Agency to investigate the said offence. It is, thus, only where the Central Government determines the offence in question to be a Scheduled Offence or a case fit to be investigated by the Agency that it can be investigated by the Agency. There is nothing on record to suggest that the Central Government, in respect of F.I.R. No.0004 of 2021, has determined as to whether the offence levelled against the petitioner is a Scheduled Offence or that, on the strength of the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(Emphasis supplied)
15. It emanates from the scheme of the NIA Act that the scheduled offence is one enumerated in the schedule appended to the NIA Act. Thus, any further declaration in this regard by the Central Government in view of Section 6 (3) would virtually render the provisions of Section 2 (1) (f) and (g) as redundant.
16. It is also ascertainable from the scheme of the NIA Act that the words "Save as otherwise provided in this Act" occurring in Section 10 of the NIA Act clearly refer to the provisions of Section 6 (6) of the NIA Act, which provides that where Central Government has issued a direction under Section 6 (4) or Section 6 (5) of the NIA Act for getting the Scheduled Offence (s) investigated by the Agency, the State Government and any Police Officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
17. If it is interpreted to convey that in the absence of determination under Section 6 (3) of the NIA Act by the Central Government, the State Government would not have power to investigate in respect of Scheduled Offence, then such an interpretation would not only be against the legislative intent but it would also render the provisions of Section 10 of the NIA Act as redundant.
(Emphasis supplied)
18. In the instant case, admittedly, the Central Government has not issued any direction under Section 6 (4) or Section 6 (5) of the NIA Act to get the Scheduled Offence (s) investigated by the Agency, therefore, the authority and power of the State Government to investigate and prosecute any Scheduled Offence remains unaffected.
19. It is, thus, clear that the State Government was fully competent to investigate the matter arising out of F.I.R. No.0004 of 2021, dated 16.02.2021, under Sections-120-B, 121A of I.P.C., Section 3 and 5 of Arms Act, Sections-3, 4 and 5 of Explosive Substances Act, 1908, Sections-13, 16, 18 & 20 of UA (P) Act at Police Station-ATS, District-Lucknow and arguments of learned counsel for the petitioner to the contrary are fallacious.
20. The learned counsel for the petitioner further contends that the investigation of the matter arising out of F.I.R. No.0004 of 2021, dated 16.02.2021, under Sections-120-B, 121A of I.P.C., Sections 3 and 5 of Arms Act, Sections-3, 4 and 5 of Explosive Substances Act, 1908, Sections-13, 16, 18 and 20 of UA (P) Act at Police Station-ATS, District-Lucknow needs to be transferred to the CBI only on the ground that the State Authority and Investigating Agency are prejudiced and biased towards the petitioner as he is a member of PFI, which is termed by respondent no.5 as "South Terror" on its portal, which is evident from Annexure No.7 to this petition. It has also been stated that the transfer of the investigation to the CBI is necessary because the investigation is not being carried out in a free and fair manner.
21. In K.V. Rajendran Vs. Superintendent of Police, CBCID South Zone, Chennai and others reported in (2013) 12 SCC 480, Hon'ble The Supreme Court has held as under :
13. The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge-sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge-sheet has been filed, to proceed with the matter in accordance with law. Under no circumstances, should the court make any expression of its opinion on merit relating to any accusation against any individual. (Vide Gudalure M.J. Cherian v. Union of India [(1992) 1 SCC 397] , R.S. Sodhi v. State of U.P. [1994 Supp (1) SCC 143 : 1994 SCC (Cri) 248 : AIR 1994 SC 38] , Punjab and Haryana High Court Bar Assn. v. State of Punjab [(1994) 1 SCC 616 : 1994 SCC (Cri) 455 : AIR 1994 SC 1023] , Vineet Narain v. Union of India [(1996) 2 SCC 199 : 1996 SCC (Cri) 264] , Union of India v. Sushil Kumar Modi [(1996) 6 SCC 500 : AIR 1997 SC 314] , Disha v. State of Gujarat [(2011) 13 SCC 337 : (2012) 2 SCC (Cri) 628 : AIR 2011 SC 3168] , Rajender Singh Pathania v. State (NCT of Delhi) [(2011) 13 SCC 329 : (2012) 1 SCC (Cri) 873] and State of Punjab v. Davinder Pal Singh Bhullar [(2011) 14 SCC 770 : (2012) 4 SCC (Civ) 1034 : AIR 2012 SC 364] .)
14. In Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] this Court dealt with a case where the accusation had been against high officials of the Police Department of the State of Gujarat in respect of killing of persons in a fake encounter and Gujarat Police after the conclusion of the investigation, submitted a charge-sheet before the competent criminal court. The Court came to the conclusion that as the allegations of committing murder under the garb of an encounter are not against any third party but against the top police personnel of the State of Gujarat, the investigation concluded by the State investigating agency may not be satisfactorily held. Thus, in order to do justice and instil confidence in the minds of the victims as well of the public, the State police authority could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. Thus, the Court held that even if a charge-sheet has been filed by the State investigating agency there is no prohibition for transferring the investigation to any other independent investigating agency.
15. In State of W.B. v. Committee for Protection of Democratic Rights [(2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] a Constitution Bench of this Court has clarified that extraordinary power to transfer the investigation from State investigating agency to any other investigating agency must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. (See also Ashok Kumar Todi v. Kishwar Jahan [(2011) 3 SCC 758 : (2011) 2 SCC (Cri) 75 : AIR 2011 SC 1254] .)
17. In view of the above, the law can be summarised to the effect that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased."
22. Hon'ble The Supreme Court in Central Bureau of Investigation and another vs. Rajesh Gandhi and another reported in 1996 (11) SCC 253 has held that the decision to investigate or the decision on the Agency which should investigate, does not attract the principle of natural justice. The accused cannot have a say in who should investigate the offence he is charged with.
23. It is admitted to the petitioner that the Central Government has, so far, not directed the Agency to investigate in respect of the F.I.R.No.0004 of 2021, dated 16.02.2021, under Sections-120-B, 121A of I.P.C., Section 3 and 5 of Arms Act, Sections-3, 4 and 5 of Explosive Substances Act, 1908, Sections-13, 16, 18 & 20 of UA (P) Act at Police Station-ATS, District-Lucknow, invoking its power under Section 6 (3) of the NIA Act. The said investigation has been concluded by the Investigating Agency of the State, respondent no.6. The police report qua the present petitioner has been submitted to the competent court. The cognizance of the offence has also been taken by the special court constituted by the State Government in exercise of power vested in it by Section 22 of the NIA Act.
24. Hon'ble The Supreme Court in Bikramjit Singh vs. State of Punjab, reported in (2020) 10 SCC 616, in para 26, has held as under :
"26. Before the NIA Act was enacted, offences under the UAPA were of two kinds -- those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate's courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Session. This scheme has been completely done away with by the NIA Act, 2008 as all Scheduled Offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act. In the absence of any designated court by notification issued by either the Central Government or the State Government, the fallback is upon the Court of Session alone. Thus, under the aforesaid scheme what becomes clear is that so far as all offences under the UAPA are concerned, the Magistrate's jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, "the Court" being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself. The impugned judgment in arriving at the contrary conclusion is incorrect as it has missed Section 22(2) read with Section 13 of the NIA Act. Also, the impugned judgment has missed Section 16(1) of the NIA Act which states that a Special Court may take cognizance of any offence without the accused being committed to it for trial, inter alia, upon a police report of such facts."
25. Placing reliance upon the aforesaid judgment, the contention of learned counsel for the petitioner is that only special court, constituted under Section 22 of the NIA Act, has jurisdiction to take cognizance of the offences in question. In absence of such court, the sessions court has jurisdiction to take cognizance because, in the present matter, F.I.R. No.0004 of 2021 has been registered under the provisions of UA (P) Act also. The aforesaid contention of the learned counsel for the petitioner has been vehemently opposed by the learned A.G.A., who submits that the State Government, in exercise of power vested in it by Section 22 of the NIA Act, has constituted special court and the special court has taken cognizance of the offence in question. In view of the above, we do not find any substance in the aforesaid arguments of the learned counsel for the petitioner.
26. The petitioner has, thus, been unable to show that the power of investigation has been exercised by the Investigating Officer mala fide. It is also not found to be a case of abuse of power and non-compliance by the Investigating Agency following under Chapter XII of the Code of Criminal Procedure. The investigation has also been concluded by the respondent no.6. So far as the allegation of use of term "South Terror" on the portal of respondent no.5 is concerned, it is pertinent to mention here that use of such term would not per se import element of malice or bias towards the petitioner. However, we view this fact with profound concerned and disapprove use of such term.
27. In view of the aforesaid discussion, we are of the considered view that it is not a rare or exceptional case where investigation needs to be transferred to the CBI as a court monitored matter.
28. No other issue has been urged before us by the learned counsel for the parties.
29. As discussed above, the writ petition is liable to be dismissed and the same is hereby dismissed.
Order Date:-27.07.2021 Mahesh