'Vital Issue For Nation': Supreme Court Questions NIA's Power To Register Suo Motu Case

In a case related to the National Investigation Agency Act, the Supreme Court recently questioned the NIA's power to suo motu register a case in terms of Section 6(5) of the Act.

A bench of Justices Vikram Nath and Sandeep Mehta heard the matter. It was seized of two special leave petitions, filed by accused persons challenging the Central government's orders under the Act for investigation by NIA, and one writ petition, challenging the vires of the Act.

While the bench issued notice on the writ petition, it posed some questions to the Union, represented by Additional Solicitor General Aishwarya Bhati, in the SLPs and ultimately adjourned the matter giving her time to file additional documents.

Briefly put, the case pertains to members/activists of the Popular Front of India, against whom an FIR (Cr. No. 318/2022) was registered by Kerala Police in 2022 over the killing of a BJP activist. The Kerala police investigated this case and filed a chargesheet, wherein no allegation of commission of an offence, which is included in the schedule of the NIA Act, was apparently levelled.

However, the same year, the NIA registered another case under the orders of the Ministry of Home Affairs (RC-2/2022). Invoking Section 6(5) of the NIA Act, the Union government had directed the NIA to take over investigations into offences committed by PFI members. In 2023, the NIA also filed a final report. Aggrieved by the NIA's investigation of a case which had already been investigated by the Kerala police (Cr. No. 318/2022) and its clubbing with RC-2/2022, some accused persons approached the High Court.

Upon rejection of their pleas challenging the Central government orders, they moved the Supreme Court.

Senior Advocate R Basant appeared for the petitioners and questioned whether, in the absence of registration of an FIR, an order under Section 6(5) of the NIA Act could be passed. He submitted that the petitioners were arrayed as accused in Cr. No. 318/2022. The local police conducted investigation and filed a chargesheet (plus supplementary chargesheets), but there was no allegation of scheduled offense.

Basant contended that without registration of an FIR, the Central government cannot direct NIA to take over an investigation. "Registration of an FIR is a condition precedent to passing of an order under s.6(5), otherwise NIA will be at liberty to register any FIR in respect of a scheduled offense – that would be an affront to the state govt power", he said.

The senior counsel further highlighted that Sections 6(8) and 6(9) were added to the NIA Act later via amendment and these conceded power to register crime to NIA only in case of extra-territorial offense. "When offense occurs outside India, law permits NIA to register a crime. For an offense that has occurred within a state, state has to register FIR. Only then investigation can be transferred to NIA (following S.6 provisions)", he argued.

Hearing the submissions, Justice Mehta questioned ASG Bhati on NIA's source of power to register an FIR. “Is registration of an FIR automatic? Or without there being any power to do so? And where would it be registered?”

When the ASG replied that the NIA case is registered as an RC (regular case), the judge queried, “Is NIA a police station under the Act? without there being a police station, can there be an FIR?” 

In response, the ASG told the Court that the Kochi police station has been declared as NIA police station, and the subject RC was registered there. However, Justice Mehta  questioned, “where is that declaration? And under what provision?”

The judge further noted that under the DSPE Act, there is power given to CBI to register an FIR and for that purpose, CBI becomes a police station. “If you don't have power to register an FIR, what would your result of investigation be? Are officers of the NIA considered to be police officers? Unless there's an SHO, chargesheet can't be filed. If you have notifications supplementing this power, you let us know…This is a serious question. Without there being a police station, and without there being an SHO, whether FIR can be registered? And whether chargesheet can be filed?”, Justice Mehta posed to ASG Bhati.

Subsequently, the ASG apprised the Court about interim orders passed in the SLPs restraining framing of charge. She requested that the writ be heard separately so that the trials are not help up.

The bench accommodated the request and de-tagged the writ from the SLPs. "We will also not like to delay these. You come back with your answers. These are questions of vital importance affecting the entire country. And most sensitive offenses for that matter", Justice Mehta said.

Case Title: SADIK A P @ SADIQ AHMED AND ORS. Versus UNION OF INDIA AND ORS., SLP(Crl) No. 3658/2024 (and connected case)