People visit Vijay stambh walk on the bridge over the river Bhima of Bhima Koregaon in Pune, on Wednesday, January 1, 2020.(Photo by Shankar Narayan/HT PHOTO)
People visit Vijay stambh walk on the bridge over the river Bhima of Bhima Koregaon in Pune, on Wednesday, January 1, 2020.(Photo by Shankar Narayan/HT PHOTO)

Experts weigh in on legality of Centre’s move to transfer probe

While legal experts said there was a provision for the Centre to suo motu direct NIA to take over an investigation, they expressed reservations over some aspects of the Union government’s latest move.
Hindustan Times, New Delhi | By Murali Krishnan
UPDATED ON JAN 26, 2020 02:45 AM IST

The central government’s move to transfer the Bhima Koregaon violence probe to the National Investigation Agency (NIA) kicked up a political storm on Saturday, with the Bharatiya Janata Party’s (BJP) opponents questioning the legality of the move by the Union home ministry.

The Centre decided to transfer the case to the central agency on Friday, prompting the Congress and the Nationalist Congress Party (NCP) to say that the move came shortly after the Maharashtra government decided to review the probe under the previous BJP-led government.

While legal experts said there was a provision for the Centre to suo motu direct NIA to take over an investigation, they expressed reservations over some aspects of the Union government’s latest move.

The National Investigation Agency Act, 2008 (NIA Act) was enacted during the UPA-II regime in the aftermath of the 2008 terror attacks in Mumbai. The object of NIA is to investigate and prosecute offences under certain laws which have been specified in the schedule of the NIA Act (scheduled offences). Offences under Unlawful Activities (Prevention) Act, 1967, Atomic energy Act, Anti Hijacking Act, Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005, etc. fall within the category of scheduled offences.

The link to the Centre’s latest move lies in Section 6 of the NIA Act. Section 6 envisages a dual procedure for the central government to take over the investigation of a scheduled offence from a state investigating agency.

The first is with the prior knowledge of the state government under sub-sections 1, 2, 3 and 4 of Section 6. Whenever an FIR is registered with respect to a scheduled offence by a state police, it is mandatory for the state government to forward a report about the same to the central government. The central government, within 15 days of the receipt of the report from the state government, should decide whether the case involves a scheduled offence and is fit to be investigated by NIA. If the central government makes a conclusion to that effect, it can issue a direction to NIA to probe the case.

The second procedure contemplated under Section 6 for ordering an NIA probe is provided in sub-section 5. Sub-section 5 empowers the central government to suo motu direct an NIA probe into any case if it is of the opinion that the case involves the commission of a scheduled offence.

The second method can be employed in two situations. When the state conducts a probe after concluding that there is no scheduled offence, the Centre can intervene on its own and order an NIA probe on the grounds that the case discloses commission of a scheduled offence.

The second instance is when, after initially allowing the state to conduct a probe, the Centre subsequently changes it stance and directs an NIA probe.

In the Bhima Koregaon case, the Centre seems to have exercised the powers conferred on it by sub-section 5. “The power under section 6(5) is wide and Centre can suo motu take over investigation of a scheduled offence. As of today, section 6(5) stands and it empowers central government to take over any scheduled offence suo motu from the state,” said Supreme Court advocate Sumeer Sodhi.

However, whether the Centre has followed the NIA Act in the Bhima Koregaon case could be argued. This is because the probe into the Bhima Koregaon case is nearly complete and the matter is pending for adjudication in a trial court.

“Firstly, there was no reference from state government under sub-sections 1, 2 and 3. Secondly, even if the central government were to act suo motu under sub-section 5, it can be done only at the stage of investigation. And since the investigation is over and matter is pending adjudication in a court of law, the scope of the NIA to take over seems a little inappropriate,” said senior advocate Rebecca John.

Sodhi added: “Use of Section 6(5) in Bhima Koregaon case seems to be one of the worst instances because charge sheet was filed in it two years ago. Moreover, the case is at the stage of trial. Whether powers under section 6(5) can be exercised after investigation is over and challan is filed needs to be seen.”

Though the law does not bar further investigation into a case, it involves a question of courtesy, which goes beyond the law. “Even with respect to ‘further investigation’ when a case is pending trial, the Supreme Court has often reminded investigating agencies that while they have unfettered powers under Section 173(8) of the Code of Criminal Procedure to conduct further investigation, the same must be brought to the notice of the court if it is pending before the court. It is a matter of propriety and courtesy. The circumstance under which this has happened does not appear bona fide on the face of it,” said John.

Senior advocate and former additional solicitor general Maninder Singh, however, said: “The offences covered under the NIA Act are those which threaten the integrity and security of the country. Hence, it falls within list I of schedule VII of the Constitution and the central government is fully empowered to enact laws in that regard. The NIA Act is, therefore, constitutional.”

“As far as the exercise of the powers by the central government under the NIA Act is concerned, it is based on subjective discretion of the government relying on objective material. This can be challenged in courts which can decide based on the fact situation of each case”, he added.

Another aspect relevant to this case is the constitutionality of the NIA Act. Chhattisgarh has challenged the validity of the Act in the Supreme Court on the grounds that it transgresses into the state’s domain of powers.

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