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State govt seeks legal advice to challenge case handover

PUBLISHED ON JAN 26, 2020 12:45 AM IST

A day after the probe into the Bhima-Koregaon violence was transferred to the National Investigation Agency (NIA), Maharashtra home minister Anil Deshmukh said they have sought legal advice to decide the next course of action. The NIA takeover may lead to a face-off between the Bharatiya Janata Party (BJP)-led Centre and the Maharashtra Vikas Aghadi (MVA) government, with Deshmukh stating the move was “against the Constitution” and some experts claiming the Union government does have the power to hand over cases to NIA.

“We have sought legal advice before handing the case to the NIA. Advocate general [Ashutosh Kumbhakoni] has been asked to give legal opinion based on which we will decide our next step...We will challenge it before the SC as the Centre didn’t take prior consent from the state,” Deshmukh told HT.

Deshmukh has objected to the Centre’s decision to transfer the case to the federal agency unilaterally. Kumbhakoni said he was out of the city and needed to check legal provisions before offering any comments.

According to section 6 of the NIA Act, the Central agency can take up the case on inference from the state. The Act also empowers the Centre to direct the federal agency to suo motu take up the case if it is of the opinion that the NIA should do so.

Legal luminaries, too, said the Centre has all the powers to hand over the case to NIA. “The NIA Act permits both the state and the Centre to take recourse of its provisions, but if the Centre takes recourse then its investigation prevails. Hence, there is nothing unlawful in Centre taking over the case,” said Shreehari Aney, senior advocate and former advocate general of Maharashtra. “Essentially, the power of the police is the power of the state. But under the NIA Act, if a matter is related to terrorism, a special investigating agency [NIA] has been formed to probe the same and the power of the police comes to an end. If the Centre has not taken over the case, the state can also investigate it under the Act.”

This means that the state doesn’t have much to do in this case, said a senior official from state home department.

Meanwhile, Ashok Chavan, former chief of Congress’s state unit, said the Centre’s decision is a clear interference in the state’s administration. “When the state was probing the matter what was the necessity for the Centre to step in? At least, they should have discussed or consulted the state. It’s unfair and a clear interference. The home department should take legal recourse,” he said. The NIA takeover occurred just as the state home department was in the process of appointing a special investigation team to probe the violence. According to the Pune Police, the Elgar Parishad conclave held in Pune on December 31, 2017, was supported by Maoists and inflammatory speeches made at the event led to the caste violence at the Bhima-Koregaon war memorial on January 1, 2018.

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