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NIA Act-Power Of State To Investigate Scheduled Offences Is Subject To Centre's Power To Cause It To Be Investigated By NIA: Chhattisgarh HC

LIVELAW NEWS NETWORK
23 Nov 2019 11:44 AM GMT
NIA Act-Power Of State To Investigate Scheduled Offences Is Subject To Centres Power To Cause It To Be Investigated By NIA: Chhattisgarh HC
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The Chhattisgarh High Court on Wednesday made certain crucial observations with regards the stature of powers enjoyed by the Central and the State government under the National Investigation Agency Act, 2008.

While deciding an appeal that whether or not the investigation pertaining to scheduled offences committed by some unidentified Naxalites/Maoists, which lead to the demise of a sitting MLA and four other armed guards, should be handed over to the National Agency, the bench of Chief Justice PR Ramachandra Menon and Justice Parth Prateem Sahu held that,

"the power of the State Government to investigate the Scheduled Offence, as provided under Section 10 of the NIA Act, is always subject to the power exercised by the Central Government to cause it to be investigated by the National Agency as dealt with under Section 6 of the NIA Act."

Background

In relation to the above mentioned killings, an FIR was registered under the relevant provisions of IPC, Arms Act, Explosive Substance Act and the Unlawful Activities (Prevention) Act.

Since the offences committed under the UAPA Act are Scheduled Offences under the NIA Act, the information relating to the offence was forwarded by the State Police to the State Government, based on which a report was sent to the Central Government under Section 6(2) of the NIA Act. On receipt of the said report, the Central Government found it as a fit case to be investigated by the NIA, and directed the National Agency to take over the investigation.

However, the State Police refused to hand over the case material to the Centre and accordingly, an application was filed before the Special Court, which was pleased to dismiss the Centre's plea. Subsequently, a writ petition was preferred before the Single Judge of high court, which came to be allowed with directions to the State to hand over the material.

Hence, the present appeal was preferred by the State.

State's Arguments

  1. If at all the Respondent govt. was aggrieved by the order of the Special Court, it couldn't have invoked writ jurisdiction of the court since the remedy was by way of appeal in terms of Section 21 of the NIA Act;
  2. The Respondent's case was not being presented through a Special Prosecutor, as prescribed by Section 15 of the NIA Act, but through a private counsel, and hence was not liable to be entertained;
  3. The State was empowered under Section 10 of the NIA Act to investigate the Scheduled Offences and hence the Centre should not interject the matter. Moreover, it was always possible for the National Agency to obtain assistance from the State machinery, under Section 9 of the NIA Act;
  4. Investigation was at an advanced stage and Centre's intervention was unwarranted.

Findings

Refuting these arguments, the Court explained that Section 6(6) of the NIA Act clearly prohibits the State Government from investigating the Scheduled Offence, once an order is passed by the Central Government entrusting the investigation with the NIA.

In this light it was held that power of the State Government to investigate the Scheduled Offence, as provided under Section 10 of the NIA Act, is always subject to the power exercised by the Central Government to cause it to be investigated by the National Agency as dealt with under Section 6 of the NIA Act. In fact, the State was duty bound to extend all assistance and co-operation to the Agency for investigation of the Scheduled Offences. Hence, power of the State under Section 10 of the NIA Act was subordinate to those of the Centre under Section 6.

Reliance was placed on Pradeep Ram v. State of Jharkhand & Anr., 2019 SCC OnLine SC 825

It was further explained that Section 6(5) contained a 'non-obstante clause' holding that 'Notwithstanding anything contained in this Section', if the Central Government was of the opinion that a Scheduled Offence had been committed and was required to be investigated under the NIA Act, it may, suo motu, direct the Agency to conduct such investigation.

The court also addressed each of the State's arguments in the following words:

  1. The Respondents could approach the high court under Article 226 of the Constitution if there was refusal on the part of the State in handing over the investigation along with relevant records, despite the order passed in terms of Section 6 of the NIA Act;
  2. For filing such writ petition, it was not necessary that the Lawyer representing the Centre should be a Public Prosecutor or Special Prosecutor, appointed in terms of Section 15 of the NIA Act;
  3. Since an order in terms of Section 6 had already been passed by the Respondent, it was no more open for the State Government to investigate the Scheduled Offence in exercise of its powers under Section 10.
  4. It was unclear as to how the investigation was almost complete and charge-sheet was about to be submitted within "one month" of the incident. Moreover, it could not be a ground for not taking over the investigation by the Central Government.

With these observations, the court dismissed the State's appeal.

The State was represented by Advocate General Satish Chandra Verma with Dy. Advocate General Sudeep Agrawal and Government Advocate Ghanshyam Patel. The Centre was represented by Advocates Kishore Bhaduri, B. Gopa Kumar, Pankaj Singh and Sabhyasachi Bhaduri.

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