Law & Order A State Subject, NIA Can't Proceed Prior To Registration Of Crime By State Police: Habeas Corpus Plea In Rajasthan HC, Notice Issued

The plea states that Centre has no power to pass any order under section 6(3) of NIA Act as law and order is the state subject and it cannot proceed in the absence of any prior registered crime/ FIR.

"The only power conferred to Union of India is under union list of entry no 8 i.e. Central intelligence bureau and investigation, which cannot usurp the power of state without registration of any crime by the state agency," the plea states.

It adds that NIA has to proceed akin to CBI or ED which need state permission before registration of any case within the jurisdiction of respective state.

A division bench of Justices Birendra Kumar and Anil Kumar Upman has issued notice in the matter.

The detainee was arrested from Kerala back in September 2022 where he was attending organizational meeting conducted by the Popular Front Of India (PFI).

The FIR was lodged at PS NIA in New Delhi under sections 120B, 153A of IPC and sections 13 and 19 of UAPA on the basis of an order of Undersecretary of the Ministry of Home Affairs under Section 6(5) of NIA Act upon receiving credible information about alleged schedule offence.

Counsel for petitioner, Akhil Chaudhary, referred to Section 6(3) of NIA Act which states that "on receipt of report from the State Government" the Central Government shall determine 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.

Further, Section 6(8) of the Act empowers the Centre to direct the Agency to register the case and take up investigation if it is of the opinion that a Schedule Offence has been committed at any place outside India to which this Act extends.

Thus the plea contends that the only circumstance when the Central Govt. can pass any direction/order to agency to register an FIR is provided in Section 6(8) of NIA Act and since no such incident is alleged in the complaint, the impugned FIR is without any jurisdiction.

The Court has asked the NIA to file its response within two weeks and has listed the matter again on February 7.

Advocates: Mr. Akhil Chaudhary for petitioner

Mr. Tej Prakash Sharma, the SPP, for Union of India

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