Jharkhand High Court
Gopal Krishna Patar @ Raja Peter vs The State Of Jharkhand Through The ... on 25 August, 2018
Equivalent citations: AIRONLINE 2018 JHA 219
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (Cr.) No. 458 of 2017
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Gopal Krishna Patar @ Raja Peter ... ... Petitioner Versus
1.The State of Jharkhand through the Secretary, Home Department, Project Bhawan, Dhurwa, Ranchi
2.The Union of India through the Secretary, Ministry Of Home Affairs, Internal Security - I Division, Government of India, North Block, New Delhi
3.The Superintendent of Police, C.I.O., Camp Officer, Ranchi, Tatisilway, District Ranchi
4.The Additional D.G., Crime Investigation Department, GPO, PS Kotwali, District Ranchi, Jharkhand
5.The S.S.P., Ranchi, Radium Chowk, Lalpur, Ranchi ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Akhilesh Kumar Srivastava, Advocate
For the Respondent No. 2 : Mr. Rajiv Sinha, A.S.G.I.
For the National Investigation Agency: Mr. Rohit Ranjan Prasad, Adv
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C.A.V. ON - 02.04.2018 PRONOUNCED ON - 25.08.2018 Heard Mr. Akhilesh Kumar Srivastava, learned counsel for the petitioner and Mr. Rajiv Sinha, learned A.S.G.I. appearing for the respondent no. 2 and Mr. Rohit Ranjan Prasad, learned counsel appearing for the National Investigation Agency.
2. The petitioner in this writ application has prayed for the following relief:
"for issuance of an appropriate writ (s)/order (s)/direction(s) for declaring that the action of the Respondent in instituting the F.I.R. pursuant to the Government of India Order dated 28.06.2017 (as contained in the F.I.R.), followed by the arrest of the Petitioner, as illegal and unconstitutional, with respect to the entire proceeding being Special (N.I.A.) 1/2017, arising out of RC-11/2017/NIA/DLI, now pending in the Court of Judicial Commissioner, Ranchi under Section 302/379/120B/34 of the Indian Penal Code, u/s 27 of Arms Act, u/s 18/20/38 of the Unlawful Activities (Prevention) Act, 1967 and u/s 17 of the Criminal Law Amendment Act, as the same amounts to illegal and colourable exercise of Power AND consequent upon the same to quash -2- the entire criminal proceeding arising out of the said N.I.A., F.I.R. and further to release the Petitioner restoring his rights and freedoms."
3. The factual aspects of the case as could be revealed from the averment made in the writ application is that initially an FIR was instituted being Bundu P. S. Case No. 65 of 2008 on the written information of Nand Kishore Yadav @ Nandu on 09.07.2008 at about 3:30 P.M. The allegation made in the FIR was that on 09.07.2008, the informant was given an information by the deceased Ramesh Singh Munda that they have to leave for Bundu High School. The informant along with the deceased were accompanied to the school by the driver of Ramesh Singh Munda, two bodyguards namely, Shivnath Minz & Sheshnath Singh and the Home Guard Constable namely, Md. Khurshid in a Tavera car. They reached Bundu High School at around 12:15 P.M. It has been alleged that after the welcome ceremony when the deceased was about to finish his speech, the informant saw three boys carrying arms. Subsequently one of the boys who moved from the front side fired twice or thrice in the air and thereafter all the miscreants started firing towards the bodyguard Shivnath Minz and Home Guard Md. Khurshid who were standing in the corridor. There was complete chaos in the school premises. The informant has stated that he had hid himself inside the Tavera car. It has been alleged that after the assailants left by shouting 'Maowadi Jindabad', the informant got down from the vehicle and saw the bodyguard and a boy lying on the floor motionless. He has also stated that the Home Guard Md. Khurshid was also shot dead and was lying on the floor. It has been alleged that inside the hall the informant saw Ramesh Singh Munda lying on the floor with multiple gunshot injuries. In fact the weapons of the bodyguard - Shivnath Minz and Homeguard Md. Khurshid were also missing. The informant has stated that Bundu police has arrived soon after the incident and all the four injured persons were taken to RIMS where they were declared dead.
4. After conducting investigation, a charge-sheet was subsequently filed by the police on 30.09.2016 under Section 302, 379, 120(B) of I.P.C., Section 27 of the Arms Act and Section 17 of the C.L.A. Act against Kundan Pahan, Radhe Shyam Baraik and Ram Mohan Singh Munda while investigation was kept pending against Pawan Singh Munda, -3- Santosh Munda, Mahesh Munda, Tulsi Das alias Vishal, Jakaria, Vinod, Guruva Munda and other unknown persons. In terms of order dated 28.06.2017 issued by the Government of India, Ministry of Home Affairs, the National Investigation Agency (hereinafter referred to as 'NIA') has been directed to take over the investigation of Bundu P. S. Case No. 65 of 2008. Subsequently an FIR was instituted by NIA being RC- 11/2017/NIA/DLI.
5. The petitioner in this writ application has stated that a notice was issued to the petitioner for appearance before the NIA and the petitioner had duly appeared on 14.09.2017. On 08.10.2017, a search was conducted in the house of the petitioner and various documents, CDs and diaries were seized and a seizure list was also duly prepared. On 09.10.2017, the petitioner was produced before the Court by NIA with a prayer for initial remand of 7 days in police custody of NIA and the Court vide order dated 09.10.2017 had granted police remand for a period of 4 days (96 hours). On 14.10.2017, on the application preferred by the NIA, police custody was allowed for a further period of two more days and thereafter the petitioner was sent to judicial custody. An application was preferred on behalf of NIA with a prayer not to issue the certified copy of the statement of the accused recorded under Section 164 of Cr.P.C. to the petitioner to which a rejoinder has also been filed by the petitioner with a rebuttal that the prayer of NIA be rejected as he is entitled to get the certified copy of the statement recorded under Section 164 of Cr.P.C. However, vide order dated 16.11.2017, the learned Judicial Commissioner, Ranchi had allowed the application filed by the NIA and passed an order declining to furnish the copy of the confessional statement recorded under Section 164 of Cr.P.C. of the co-accused person and it was further directed that such statements be kept in the safe custody (sealed cover) of the Court. The petitioner had preferred an application for grant of bail which however was rejected on 24.11.2017 in view of the fact that investigation was still in progress and charge-sheet was likely to be submitted along with the entire documentary proofs. It is also an admitted fact that an application was preferred on behalf of the NIA on 18.11.2017 seeking permission to grant pardon to the accused Tipru Buruma alias Santosh alias Mithun alias Mantu Munda and Ram -4- Mohan Singh Munda alias Mochu alias Bhagat alias Pragati alias Ram Mohan. The said application preferred by the NIA was allowed by the learned Judicial Commissioner cum Special Judge, NIA, Ranchi on 23.11.2017 and NIA was permitted to examine both the said persons as approver.
6. The respondent - Union of India has in its counter affidavit averred that Bundu P. S. Case No. 65 of 2008 was handed over to the NIA for investigation vide impugned notification dated 28.06.2017 since the offence under the Unlawful Activities (Prevention) Act is a scheduled offence. It has been stated that the FIR is with respect to the murder of a public representative namely, Ramesh Singh Munda which assumes considerable significance. It has been stated that after the surrender of noted Maoist activist Kundan Pahan, the office of D.G. and I.G., Police, Jharkhand, Ranchi informed the ministry of Home Affairs, New Delhi that CID, Jharkhand which was investigating the case had added Sections 18, 20 and 38 of the Unlawful Activities (Prevention) Act. Based on such information and considering the gravity of the offence, the case was transferred to NIA for investigation.
7. The NIA has also filed its counter affidavit in which reference has been made to Section 21 of the National Investigation Agency Act, 2008 by stating that the petitioner has an alternative remedy as the question of propriety, illegality or otherwise of any judgment or order can be entertained by the High Court in terms of Section 21(2) of the NIA Act by a Bench consisting of 2 judges. It has been averred that the present application therefore is barred as being not maintainable. Reference has also been made with respect to the judgments passed by the Hon'ble Supreme Court in S.L.P. No. 7375 of 2012 and S.L.P. No. 9788 of 2012.
8. In the background facts of the case as narrated above, this Court now embarks to consider the arguments advanced on behalf of the respective parties.
9. Mr. Akhilesh Kumar Srivastava, learned counsel appearing for the petitioner has stated that false and fabricated evidence has been manufactured by NIA to implicate the petitioner. He submits that after the FIR has been lodged on 09.07.2008 (Bundu P. S. Case No. 65 of 2008), three charge-sheets were submitted and in neither of the charge-sheets, -5- there is any whisper about the petitioner being the author of the crime. It has been stated that even Ram Mohan Singh Munda who has also given a purported confessional statement had never named the petitioner. Learned counsel submits that the NIA claims to have recorded the statement of Ram Mohan Singh Munda under Section 164 of Cr.P.C., in which the name of the petitioner has supposedly surfaced and that is the only evidence collected by the NIA. Learned counsel expresses surprise that Ram Mohan Singh Munda had kept the information regarding the involvement of the petitioner all to himself for a period of 9 years as if he had a premonition that the NIA would take over the investigation and such fact shall then be divulged by Ram Mohan Singh Munda. While assailing the impugned notification dated 28.07.2017, it has been stated by Mr. Srivastava that the same is unconstitutional, arbitrary and is a colourable exercise of power as it gives a retrospective effect to the National Investigation Agency Act 2008 which came into existence on 31.12.2008, whereas offence which the NIA is investigating was committed on 09.07.2008 and therefore, the NIA Act being a penal statute could not have been given a retrospective effect. Learned counsel has also made reference to Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms of United Nations by quoting the following:
"(1) No shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed, nor shall a heavier penalty be imposed that the one that was applicable at the time the penal offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations."
10. He submits that no law can be given a retrospective effect which curtails the rights and liberties of an accused. In support of such contention, learned counsel has referred to Section 21 of NIA Act and the judgments in the cases of "Transmission Corporation of Andhra Pradhesh Vs. Ch. Prabhakar and others" reported in (2004) 5 SCC 551 -6- and "Varinder Singh Vs. State of Punjab and Anr." reported in (2014) 3 SCC 151. He has also referred to an order passed by the Karnataka High Court by stating that the High Court had already declared an identical order to that of the impugned notification as illegal. Learned counsel submits that the said order has already been upheld by the Hon'ble Supreme Court. He further submits that NIA went in appeal before the Division Bench of the Karnataka High Court which had set aside the order of the learned Single Judge without taking note of the order passed by the Hon'ble Supreme Court.
11. Learned counsel adds that by virtue of the impugned notification dated 28.06.2017, the NIA was directed to investigate by virtually declaring the incident to be a terrorist act, although the incident is merely that of a culpable homicide and it continued to be so from the date of institution of the FIR till 30.06.2017 despite the existence of Unlawful Activities (Prevention) Act. Learned counsel submits that the institution of a fresh FIR by NIA declaring the act as a terrorist act after 9 years from the date of offence has been given retrospective effect which is contrary to the fact that the NIA Act itself came into existence on 31.12.2008. Learned counsel for the petitioner further goes on to state that the impugned notification dated 28.06.2017 is devoid of the actual facts. He states that although the notification claims that Section 18, 20 & 38 of Unlawful Activities (Prevention) Act (hereinafter referred to as 'UAP Act') has been added by the CID, but the counter affidavit of the Union of India discloses that permission has been sought for from the trial court to include Sections 13, 18, 20 & 38 of the UAP Act. Furthering his argument, learned counsel for the petitioner submits that the petitioner was never a suspect from the time of initiation of the criminal case and the only evidence which has purportedly come up as claimed by the NIA is the statement under Section 164 of Cr.P.C. of Ram Mohan Singh Munda. He has stated that there is no evidence to show the involvement of the petitioner in a contract handed out for committing a murder of a sitting M.L.A. Learned counsel for the petitioner therefore, sums up his argument by stating that:
(a) The Central Government does not have the power to handover the investigation to a Central Agency;-7-
(b) No further investigation or fresh investigation or de-novo investigation could have been possible without the leave of the Court;
(c) The petitioner could not have been arrested without taking recourse to Section 319 of Cr.P.C.;
(d) The NIA could not have instituted a fresh FIR pursuant to the impugned notification of the Central Government; and
(e) There is no prima-facie evidence against the petitioner and even after expiry of more than 9 years, nothing of substance could be collected against the petitioner and the purported 164 Cr.P.C.
statement of Ram Mohan Singh Munda is a weak piece of evidence which cannot attribute the role of the petitioner with respect to the commission of the offence.
12. Learned counsel in support of his various contentions has also referred to the judgments in the case of "Vinay Tyagi Vs. Irshad Ali"
reported in (2013) 5 SCC 762, "Reeta Nag v. State of W.B." reported in (2009) 9 SCC 129, "R. Dineshkumar alias Deena Vs. State represented by Inspector of Police & others" reported in (2015) 7 SCC 497, "Indra Dalal v. State of Haryana" reported in (2015) 11 SCC 31 and "Manohar Lal Sharma v. Principal Secy." reported in (2014) 2 SCC 532.
13. He concludes his argument by stating that the impugned notification dated 28.06.2017 be declared void and the petitioner be set- free from judicial custody.
14. Mr. Rajiv Sinha, learned ASGI while initiating his argument has firstly referred to the pleadings by stating that the impugned notification has rightly been issued. He submits that the allegations made in the FIR itself point out to a terrorist act. He also submits that there is very limited scope of judicial review and the only question which has to be gone into is as to whether the impugned order has been issued in the manner the statute provides and by a competent authority. Learned counsel submits that since there was an existence of a scheduled offence, the investigation was handed over to the NIA and therefore, the decision making process is infallible and accordingly, the decision itself with respect to issuance of the impugned notification dated 28.06.2017 cannot be said to be in an unreasonable exercise of power. Learned A.S.G. of -8- India adds that the impugned notification has nothing to do with Article 20 of the Constitution of India as the UAP Act was already in force. He submits that the ingredients of handing over investigation was present and since UAP Act was already in place, therefore, the same was applied. Learned counsel while referring to the NIA Act has stated that the same includes a terrorist act by left wing extremists which was precisely the allegation made in the FIR. Learned counsel has defended the impugned notification dated 28.06.2017 by stating that in terms of Section 6 of the NIA Act, the said notification has been issued on account of the inputs provided by the State Government and since the involvement of the petitioner was detected to be a terrorist act, the notification cannot said to be contrary to the provisions of law and stands the test of judicial scrutiny. Learned counsel has also submitted that the judgments cited by the learned counsel for the petitioner in the case of "Transmission Corporation of Andhra Pradhesh Vs. Ch. Prabhakar and others"
reported in (2004) 5 SCC 551 and "Varinder Singh Vs. State of Punjab and Anr." reported in (2014) 3 SCC 151, are entirely on different factual context and none of the judgments can be made applicable in the facts and circumstances of the present case. He adds that the NIA Act itself is a procedural law as could be deciphered from the very provisions itself and therefore, he submits that the contentions of the learned counsel for the petitioner that NIA Act is a penal statute is unfounded and without any basis. He further submits that since the NIA Act is a procedural law therefore, its retrospectivity cannot be called into question. Learned counsel has also referred to Sections 18, 20 & 38 of the UAP Act by stating that charge-sheet has been submitted under the said sections which furthermore points to a terrorist act involving the petitioner. Continuing with his argument, Mr. Sinha has further stated that the ingredients of a terrorist act was present throughout right from the time of institution of the FIR, but on account of laxity on the part of the police investigating the case, it was given a colour of culpable homicide, although factually it gives a completely different shade. Learned counsel has also referred to Section 16 of the NIA Act and has questioned that when the offence is not quantified what are its implications. In support of his various contentions, learned ASGI has referred to the judgments in -9- the cases of "Union of India Vs. Sukumar Pyne" reported in AIR 1966 SC 1206, "CBI & Anr. Vs. Rajesh Gandhi and Anr." reported in AIR 1997 SC 93 and "Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income
-Tax, Madras " reported in AIR 1957 SC 49.
15. Mr. Rohit Ranjan Prasad, learned counsel appearing for the NIA has adopted the argument advanced by Mr. Rajiv Sinha, learned ASGI. He has further stated that in view of Section 21 of NIA Act, the writ application itself is not maintainable. He further submits that after taking over investigation sufficient materials have been collected which would reveal that the petitioner was involved in a terrorist act and therefore the present writ application is liable to be dismissed.
16. On consideration of the factual aspects as well as the arguments advanced on behalf of the respective parties, the first question which falls for consideration is whether this writ application is maintainable or not since the NIA has raised a preliminary objection in its counter affidavit with respect to the maintainability of the writ application by placing reliance on Section 21 of the NIA Act. In order to appreciate the preliminary objection raised by NIA, Section 21 of the NIA Act has been visited and the same reads as under:
"21. Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or orther including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of period of ninety days."-10-
17. Section 21 of the NIA Act therefore relates to an appeal from any judgment, sentence or order of a Special Court to the High Court and it also includes an appeal before the High Court against an order of the Special Court granting or refusing bail. The said provisions exclude any appeal or revision against any judgment, sentence or order of a Special Court including an interlocutory order.
18. In the case of "State of Andhra Pradesh Vs. Md. Hussain" reported in 2014 Cr. L. J. 44, wherein a clarification was sought to be made with respect to orders passed in S.L.P. (Cr.) No. 7375 of 2012 and S.L.P. (Cr.) No. 9788 of 2012 regarding hearing of matters in the High Court by a Division Bench and not by a Single Judge in terms of the provisions of Section 21 of the National Investigation Agency Act, 2008, it was held as follows:
"20. The order passed by this Court on 2.8.2013 in SLP (Crl.) No.7375/2012 and SLP (Crl.) No.9788/2012 is therefore clarified as follows:-
(a) Firstly, an appeal from an order of the Special Court under NIA Act, refusing or granting bail shall lie only to a Bench of two Judges of the High Court.
(b) And, secondly as far as prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as The Unlawful Activities (Prevention) Act, 1967, such offences are triable only by Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court."
19. Therefore, the said order which has much been relied upon by the learned counsel for the NIA is only with respect to the forum for preferring an appeal in case of grant or rejection of a bail from an order of a Special Court constituted under the NIA Act.
20. The present writ application is directed against the notification of the Union of India dated 28.06.2017 in which the plea which has been taken by the petitioner is with respect to the illegality and unconstitutionality of the impugned notification curtailing the right and liberty of the petitioner. The petitioner in this writ application has not challenged any order or judgment passed by the learned Special Judge and the petitioner has sought to invoke the extraordinary jurisdiction of -11- this Court under Article 226 of the Constitution of India to delve on a judicial scrutiny of the impugned notification dated 28.06.2017. Therefore it cannot be said that the present writ application is not maintainable as it has not wrapped itself with any of the requirements as envisaged in Section 21 of the NIA Act. Accordingly it is held that the present writ application is maintainable.
21. Mr. Akhilesh Kumar Srivastava, learned counsel for the petitioner has strenuously argued that the NIA Act cannot be given a retrospective operation as it came into force after the institution of Bundu P. S. Case No. 65 of 2008 and that the NIA Act is a penal statute and cannot be construed to be a procedural law.
The National Investigation Agency Act came into being on 31.12.2008 and the objects and reasons behind such enactment stems from the need to set-up a specialized investigating agency for investigation of the offences relating to terrorism and other acts which has national ramifications. Section 6 of the NIA Act, 2008 for the purposes of appreciation of the arguments advanced by the learned counsel for the respective parties has been looked into and the same reads as under:
"6. Investigation of Scheduled Offences. - (1) On receipt of information and recording thereof under section 154 of the Code relating to any Scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.
(2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, 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.
(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the -12- investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation."
Section 6 of the Act therefore clarifies the fact that though the Act has not been given a retrospective operation in so many words, but it includes within its ambit a retrospectivity of its operations as the Act is procedural in nature, since it has not created any new offence.
22. Learned counsel for the petitioner in support of his contention has referred to the judgments in the case of "Transmission Corporation of Andhra Pradhesh Vs. Ch. Prabhakar and others" reported in (2004) 5 SCC 551 and "Varinder Singh Vs. State of Punjab and Anr." reported in (2014) 3 SCC 151. In the case of "Transmission Corporation of Andhra Pradesh" (supra), the factual aspects reveal that with respect to theft of electrical energy, an FIR was instituted and after investigation, charge- sheet was submitted under Sections 39 and 44 of the Indian Electricity Act, 1910 pursuant to which cognizance was taken by the learned IIIrd Metropolitan Magistrate, Hyderabad. During the pendency of the trial, the State of Andhra Pradesh had introduced certain amendments which is known as Indian Electricity (Andhra Pradesh) Amendment Act, 2000, wherein the case of the writ petitioner was transferred to a Special Tribunal. The writ petitioner was aggrieved with respect to the transfer by virtue of the amending Act and has challenged the same before the High Court with respect to its vires and has sought for a further direction that the case be transferred from the Special Tribunal to the Court of Metropolitan Magistrate for trial. The High Court had disposed of the writ petition with a direction that the trial shall continue before the Court of Metropolitan Magistrate which was challenged by the Transmission Corporation of Andhra Pradesh. On consideration of the factual and legal aspects, it was held as follows:
"13. A literal interpretation of clause (1) of Article 20 would mean that the protection available is only against conviction for an act or omission which was not an offence under the law in force when the same was committed and against infliction of a greater penalty than what was provided under the law in force when the offence was committed. Constitution being a living organic document needs to be construed in a broad and liberal sense. A construction most beneficial to the widest-possible -13- amplitude of its powers may have to be adopted. Of all the instruments, the Constitution has the greatest claim to be construed broadly and liberally (see Goodyear India Ltd. v. State of Haryana22 AIR at p. 791: SCC p. 89, para 16 and Synthetics and Chemicals Ltd. v. State of U.P.23 AIR at p. 1950 : SCC p. 150, para 67). The following observation of Vivian Bose, J. in State of W.B. v. Anwar Ali Sarkar24 (AIR p. 103, paras 85 and
86) though given immediately after enforcement of the Constitution has become more relevant now:
"85. I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull lifeless words static and hidebound as in some mummified manuscript, but living flames intended to give life to a great nation and order its being, tongues of dynamic fire potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. ...
86. Doing that what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of the sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in ordinance promulgated in haste because of what was then felt to be the urgent necessities of the moment."
14. Concerned as it is with the liberty of a person, a liberal construction has to be given to the language used in clause (1) of Article 20 and not a narrow one. The interpretation given to Section 9 of Article 1 of the American Constitution by the US Supreme Court may also be kept in mind for the purpose of understanding the true content and scope of guarantee enshrined in clause (1) of Article 20 of the Constitution of India."
The question was formulated which reads as follows: "15. Whether constitutional guarantee enshrined in clause (1) of Article 20 is confined only to prohibition against conviction for any offence except for violation of law in force at the time of the commission of the act charged as an offence and subjection to a penalty greater than that which might have been inflicted under the law in force at the time of commission of offence or it also prohibits legislation which aggravates the degree of crime or makes it possible for the accused to receive greater punishment even though it is also possible for him to receive the same punishment under the new law as could have been imposed under the prior law or deprives the accused of any substantial right or immunity possessed at the time of the commission of the offence charged is a moot point to be debated."
-14-23. In view of the question formulated in paragraph 15 regarding the interpretation of the Article 20 of the Constitution as to its scope and ambit, the matter was referred to the Larger Bench for consideration. In "Varinder Singh Vs. State of Punjab and Anr." reported in (2014) 3 SCC 151, a Bill was introduced amending the Prisons' Act, 1894 in which the possession, operation or usage of mobile phone or other component parts in possession of a prisoner or if any person was acting, assisting or instigating in the supply thereof, a penal provision was provided. The petitioner in the said case was being prosecuted on account of the fact that a mobile phone was recovered from his turban and a charger from his shoes, while he had gone as a visitor to the Central Jail, Firozpur on 17.09.2009. The amendment which was sought to be made, made the said petitioner vulnerable to a higher degree of charge as the incident was prior to the Prisons' Punjab Amendment Bill, 2011 and it was held that no offence was made out against the petitioner. The relevant paragraph of the judgment under reference is quoted hereinunder:
"10. The Prisons (Punjab Amendment) Bill, 2011 provides for the addition of Section 52-A to the Act. This section reads thus:
"52-A. (1) Notwithstanding anything contained in this Act, if any prisoner is found guilty of possessing, operating or using a mobile phone or their component parts as like SIM card, memory card, battery or charger or if the prisoner or any other person assists or abets or instigates in the supply thereof, he shall be punished with imprisonment for a term, not exceeding one year or with fine not exceeding Rs 25,000 or with both...."
This section, thus, makes the possession of the mobile phone by the prisoner and supplying the phone by any person an offence. The Notification issued by the Punjab Government that this section is in force is dated 8-3-2011. The FIR for the offence was dated 24-9-2009. This notification will obviously not apply to the case in hand as the alleged offence was committed in 2009, and retrospective effect will not apply in the case of criminal laws. Hence, there is no offence made out against the appellant and we cannot accept the reasoning of the High Court in the impugned judgment1. We hereby hold that this section cannot be made applicable to the facts of the present case."
24. Learned counsel for the NIA has referred to the case of "State of Madhya Pradesh and others Vs. Shri Ram Singh" reported in 2000 Cr.L.J. 1401, which reads as under:
"10. Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act.-15-
The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it."
25. In the case of "Zile Singh Vs. State of Haryana & Ors." reported in AIR 2004 SC 5100, while considering the retrospectivity of an Act, it was held as follows:
"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' - a new law ought to regulate what is to follow, not the past. (See: Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid, p.440).
14. The presumption against retrospective operation is not applicable to declaratory statutes.........In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.......An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid, pp.468-469).
15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general -16- scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal a privilege which did not amount to accrued right (p.392)."
26. Mr. Rajiv Sinha, learned ASGI has while stating that the NIA Act has a retrospective effect has relied upon the case of "Union of India Vs. Sukumar Pyne" reported in AIR 1966 SC 1206 and the relevant part of the order reads as follows:
"9. Mr. Chatterjee, the learned counsel for the respondent, urges that a substantive vested right to be tried by an ordinary Court existed before the amendment, and he relied on Maxwell 11th Edition, p. 217, where it is stated that "the general principle, however, seems to be that alterations in procedure are retrospective, unless there be some good reason against it." He says that there is a good reason if the principles of Art. 20 are borne in mind. In our opinion, there is force in the contention of the learned Solicitor-General. As observed by this Court in 1953 SCR 1188: (AIR 1953 SC 394) a person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right. Mr. Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code. But if this is a matter of procedure, then it is not necessary that there should be a special provision to indicate that the new procedural law is retrospective. No right of appeal under the Criminal Procedure Code is affected because no proceedings had ever been started under the Criminal Procedure Code."
27. He has also referred to the case of "CBI & Anr. Vs. Rajesh Gandhi and Anr." reported in AIR 1997 SC 93, and has relied on the following:
"8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act. 1946, Governor of Bihar was pleased to consent and extend the power and -17- jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436,
427. 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notifications of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120-B and 201 I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abatement and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case, There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C. B.I. has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr. P. C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate."
28. On consideration of the legal aspects as put forward by the learned counsel for the respective parties and on going through the provisions of the NIA Act, 2008, it would be categorical to state that the same is merely a procedural law and does not affect or curtail the rights and liberties to an extent greater than for what the accused was charged for. It is apt to mention herein that the name of the petitioner had not figured since the institution of the FIR and in spite of submission of several charge-sheets.
The NIA on being entrusted with the investigation -18- of Bundu P. S. Case No. 65 of 2008 had reregistered the FIR and in fact the State Government had already intimated the concerned department of the Central Government about the prayer made by the Criminal Investigation Department for including Section 18, 20 & 38 of the UAP Act. The NIA Act does not provide for a greater penalty than the statute under which the petitioner is being prosecuted. Even otherwise, as has been stated above, the National Investigation Agency Act, 2008 is merely a procedural law and therefore, its retrospectivity cannot be called into question. The learned counsel for the NIA has brought to the notice of the Court the judgment passed in the case of "Securities and Exchange Board of India Vs. Classic Credit Ltd." in Criminal Appeal No. 67 of 2011 which dealt with the change of forum pursuant to an amendment and the same reads as under:
"34. We will now deal with the legality of the propositions canvassed, at the hands of learned counsel for the rival parties. In our considered view, the legal position expounded by this Court in a large number of judgments including New India Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840; Securities and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765; and Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 4 SCC 696, is clear and unambiguous, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of 'forum' of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature, unless the amending statute provides otherwise.
This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392, and Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, as well as, a number of further judgments noted above.
35. We have also no doubt, that alteration of 'forum' has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of 'forum' being procedural, the amendment of the 'forum' would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment."
29. There is no express provision in the NIA Act, 2008 giving a retrospective effect to the Act, but the necessary implications as could be read from the language employed that the intention of the legislature -19- was to give it a retrospective effect considering the fact that in the enactment itself, the objects for enacting the NIA Act, 2008 was to make provisions for establishment of a specialized investigating agency for investigating incidents of terrorist attacks as well as in the militancy and insurgency affected areas as also areas affected by left wing extremism. The provisions of the NIA Act, 2008 therefore, cannot be watered down and be restricted only to a prospective operation as the same would frustrate the very intention of the legislature and the object and purpose for which the NIA Act, 2008 came into being. It is therefore, held that the NIA Act, 2008 is a procedural law and has a retrospective effect and accordingly, the contention advanced by the learned counsel for the petitioner is negated.
30. Mr. Akhilesh Kumar Srivastava, learned counsel for the petitioner has next contended and referred to the judgment rendered by the learned Single Judge of the Karnataka High Court in writ petition nos. 7267- 7270/2017 and 6005/2017 by stating that a similar notification as that of the impugned notification was quashed by the Single Judge and the same was affirmed upto the Hon'ble Supreme Court. He submits that the said decision is therefore, binding upon this Court. The submission advanced by the learned counsel for the petitioner is vehemently opposed by the learned counsel for the respondents who has stated that the judgment passed by the learned Single Judge was set aside by the Division Bench and the issue decided by the Single Judge while striking down the notification was never the subject-matter of the appeal preferred by the aggrieved Irfan Pasha before the Hon'ble Supreme Court.
31. I have given my anxious consideration to the aforesaid submission and have also looked into the judgments in the case of "Irfan Pasha Vs. The State of Karnataka & Anr." of the Single Judge, the Division Bench as also the Hon'ble Supreme Court.
32. The writ petition was preferred with respect to the murder of one Rudresh by two unknown persons. An FIR was instituted under Section 302/34 of the I.P.C. and several accused persons who were arrested were remanded to police custody. Requisition was submitted by the police seeking inclusion of Section 15, 16, 17, 18 & 20 of the UAP Act which was allowed. Subsequently, the respondent no. 2 in exercise of the powers -20- conferred under Section 6(5) and 8 of the NIA Act, 2008 had directed the National Investigation Agency to take up investigation of the said case which was under challenge in the writ petitions. The learned Single Judge based on the pleadings and arguments of the parties had formulated the under noted questions:
"14. (1) Whether the invocation of the provisions of UA(P) Act against the petitioners is justified in the fact situation of the case?
(2) Whether the entrustment of the investigation to the NIA is arbitrary and contrary to the provisions of the National Investigation Agency Act, 2008?
(3) Whether the Special Court was justified in extending the period of investigation upto 180 days?"
33. The plea of the petitioners as formulated in question nos. 1 & 3 were answered against them and so far as the question no. 2 is concerned, the impugned notification was quashed. The Union of India preferred separate appeals being Writ Appeal No. 2213 of 2017 and its analogous cases against the order of the learned Single Judge with respect to quashment of the notification and vide judgment dated 26.03.2018, the appeals were allowed and the order dated 21.03.2017 passed by the learned Single Judge was set aside. During the intervening period, one of the aggrieved Irfan Pasha had moved the Hon'ble Supreme Court in Special Leave to Appeal (Cr.) No. 4141-4145 of 2017 which was dismissed vide order dated 03.07.2017. Being equipped with the dismissal of Special Leave to Appeal (Cr.) No. 4141-4145 of 2017, Mr. Srivastava has strenuously contended that the order of the learned Single Judge was affirmed upto the Hon'ble Supreme Court. The memo of appeal of the case filed before the Hon'ble Supreme Court has not been produced before this Court to ascertain as to the necessity of the writ petitioner Irfan Pasha to approach the Hon'ble Supreme Court. However, the circumstances would clearly depict that the learned Single Judge had negated two of the prayers made by the writ petitioners which perhaps caused the writ petitioners to move the Hon'ble Supreme Court. The notification with which the writ petitioner felt aggrieved was already struck down in their favour and therefore, it cannot be concluded that the earlier order of the writ court was assailed before the Hon'ble -21- Supreme Court. Moreover, the order passed by the Hon'ble Supreme Court is dated 03.07.2017 and the writ appeals were disposed of on 26.03.2018. If the dismissal of the appeal before the Hon'ble Supreme Court was an affirmation of the learned Single Judge's order with respect to the quashment of the impugned notification, the same would surely have been brought to the notice of the learned Division Bench. Perhaps of the said fact, the writ petitioners did not challenge the negation of two of their prayers by the learned Single Judge in writ appeals. Thus it is concluded that the order of handing over of the investigation to the National Investigation Agency has been given the stamp of approval by the Division Bench of the Karnataka High Court in the case under reference and therefore, the judgment rendered by the learned Single Judge does not assist the contentions advanced by the learned counsel for the petitioners.
34. It has also been contended that the Central Government does not have the power to handover investigation to a Central agency. It is to be noted herein that the powers of the Central Government is vested in the NIA Act itself. For coming to such conclusion, Section 6 of the Act has once again been visited by this Court. Section 6 is a self-contained provision which gives the Central Government the power to handover investigation to the NIA if the report of the State Government discloses a scheduled offence and while doing so, it has also to consider the gravity of the offence and other relevant factors. Besides acting on the report of the State Government, the Central Government can suo-motu direct the NIA to investigate, if it forms an opinion that a scheduled offence has been committed which is required to be investigated under the NIA Act. Therefore, the powers of the Central Government to handover the investigation to NIA is unquestionably provided in Section 6 itself and such powers flowing from the Act having been exercised by the Central Government while handing over of the investigation to the NIA, the same also does not compel this Court to cause interference in the same.
35. An incidental issue has also been raised regarding the power of further investigation and whether the FIR can be reregistered. In support of his contention, Mr. Srivastava has referred to the case of "Vinay Tyagi Vs. Irshad Ali" reported in (2013) 5 SCC 762 as also to the case of -22- "Manohar Lal Sharma v. Principal Secy." reported in (2014) 2 SCC 532. Learned counsel has also drawn the attention of the Court to the case of "Reeta Nag v. State of W.B." reported in (2009) 9 SCC 129. In the case of "Vinay Tyagi" (supra) the facts of the case with respect to disappearance of the brother of the respondent no. 2 as respondent nos. 1 & 2 were being prosecuted under various provisions of the Indian Penal Code, Explosive Substance Act and Arms Act. They were described as terrorist, although both the respondents have claimed that they are informer working for various investigating agencies. The brother of the accused filed an application before the High Court of Delhi claiming that both the accused were working as informers to which an order was passed directing the CBI to conduct an inquiry and submit a report. The CBI has averred that further investigation was necessary and after a detailed investigation, the CBI has filed a closure report stating that the accused persons were indeed working as informers for various investigating agencies and that a false case was instituted against them. The question of law which has been considered in this case has been formulated in paragraph 1.1 and 1.2 which reads as follows:
"Question 1 1.1. Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short "the Code"), the trial court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect?
Question 2 1.2. Whether the Central Bureau of Investigation (for short "CBI") is empowered to conduct "fresh"/"reinvestigation" when the cognizance has already been taken by the court of competent jurisdiction on the basis of a police report under Section 173 of the Code?"
36. Learned counsel has referred to paragraph nos. 22, 23, 49 & 50 of the said judgment which is quoted hereinunder:
22. "Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court -23- even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation.
23. However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation". This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of "fresh"/"de novo" investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between.
This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation".
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct "further investigation" or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct "further investigation" and file "supplementary report" with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct "further investigation" and/or to file a -24- "supplementary report" will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused."
37. The facts in the case under reference are totally dis-similar to the present case. It also appears that in the said case the investigation was already completed whereas in the present case the investigation was still continuing when the impugned notification was passed. The provisions of the NIA Act grants power to the Central Government to hand over investigation to the NIA either suo-motu or upon the report submitted by the State Government, if it is brought to its knowledge that the offence committed is a scheduled offence. Therefore, the Central Government having been vested with the powers of transferring investigation to the NIA in terms of the statute, further investigation by the NIA is permissible. The factual and legal aspects with respect to the case of "Reeta Nag" (supra) as cited by the learned counsel for the petitioner are on entirely different context and the same does not in any way hinder or is an obstacle to the powers of the Central Government to direct the NIA to investigate in a scheduled offence. Reference has also been made to the case of "Manohar Lal Sharma" (supra), more specifically to paragraph 24 of the said judgment which reads as under:
"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not -25- functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens."
38. The reference made to the aforesaid pronouncement also does not co-relate with the factual and legal aspects of the present case.
39. From a reading of Section 6 of the NIA Act, it depicts the powers of the Central Government to handover investigation to NIA. By virtue of the powers conferred upon the Central Government in terms of Section 6(5) and 8 of the NIA Act, it suo-motu directed taking over the investigation of the case. On such direction, the FIR which was registered as Bundu P. S. Case No. 65 of 2008 was reregistered as RC- 11/2017/NIA/CLI. The reregistration of the FIR is basically a procedural aspect and flows as a consequence of the notification dated 28.06.2017. The notification dated 28.06.2017 directed NIA to take over investigation of the case. After such direction, a fresh FIR was instituted and the investigation which was carried out by the NIA is not an impermissibility as has been held above, and therefore no illegality could be detected in either the reregistration of the FIR or the further investigation into the case.
40. Whether there is any evidence to show criminal conspiracy on the part of the petitioner and whether the statement under Section 164 Cr.P.C. can form the basis for implication of the petitioner considering the fact that after 9 years such purported statement was recorded, reference has been made to the case of "Indra Dalal v. State of Haryana"
reported in (2015) 11 SCC 31. Learned counsel has stressed much on the following paragraphs:
"22. The only portion of the information contained in the confessional statements that may be proved is provided under Section 27 of the Evidence Act, which reads as under:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it -26- amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
23. It is clear that Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act. It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In the present case, the information provided by all the appellant- accused in the form of confessional statements, has not led to any discovery. More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants. This recovery was pursuant to the statement made by Harish Chander Godara. It was not on the basis of any disclosure statements made by these appellants. Likewise, insofar as confessional statement (Mark A) allegedly given by Jaibir is concerned, that is again in another FIR. We shall come to its admissibility separately. Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted. Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the so-called confessional statements of the appellants admissible which cannot be held as proved against them.
24. At this juncture, let us discuss as to whether the disclosure/confessional statement (Mark A) made by appellant Jaibir in another case would be relevant to prove the charge of conspiracy. It would be pertinent to point out that this statement is made by Jaibir much after the incident, when, naturally, the common intention had ceased to exist. On this ground alone it would not be admissible. We would like to refer to the judgment of this Court in Mohd. Khalid v. State of W.B.3 wherein this Court held: (SCC p. 360, para 33) "33. In view of what we have said about the confessional statement it is not necessary to go into the question as to whether the statement recorded under Section 164 of the Code has to be given credence even if the confessional statement has not been recorded under Section 15 of the TADA Act. However, we find substance in the stand of the learned counsel for the appellant-accused that Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. In State of Gujarat v. Mohd. Atik4 it was held that the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act. Once the common intention ceased to exist, any statement made by a former conspirator thereafter cannot be regarded as one made in reference to their common intention. In other words, the -27- post-arrest statement made to a police officer, whether it is a confession or otherwise touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."
41. The case as has been referred to is against the judgment of conviction whereas the present case is at the threshold of trial. So far as the concept of criminal conspiracy is concerned, it was held in the case of "State Vs. Nalini" reported in (1999) 5 SCC 253 the principles governing the law of conspiracy which been delineated and which reads as follows:
583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.
1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is -28- not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement.
There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of -29- each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
42. Therefore, it would be premature at this stage as the angle of conspiracy has to be appreciated in course of trial after evidence are led. Even otherwise, the name of the petitioner has surfaced on the statement given by Ram Mohan Singh Munda under Section 164 of Cr.P.C. which has to be considered at the appropriate stage and at this stage it cannot be said that the prosecution is bereft of any incriminating material against the petitioner.
43. Regarding the non-supply of the statement recorded under Section 164 of Cr.P.C., reference has been made to the case of "Raju Janki Yadav Vs. State of U.P. & Ors." reported in (2012) 6 All. L. J. 486 and the relevant conclusions reads as under:
"10. We are of the opinion that the statement of an accused or victim or a witness which is to be recorded under Section 164, Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of wit nesses recorded under Section 161, Cr.P.C. The reason is that there is a full fledged provision under Section 164, Cr.P.C. authorizing the recording of such a statement by a Judicial Magistrate. The practice and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an -30- application and further passes an order upon the same and thereafter directs by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other Judicial Magistrate being deputed for recording the statement under Section 164, Cr.P.C., the witness along with the judicial record is transmitted to the deputed Judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order- sheet of the same record and transmits the record along with the recorded statement under Section 164, Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164, Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164, Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case diary. Thus, the recorded statement under Section 164, Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164, Cr.P.C. could not, stricto sensu, be said to be a mere statement during investigation which could be treated as part of the case diary. It could never be put at par with a statement under Section 161, Cr.P.C. and as such it could never be said to be a part of case diary.
11. On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164, Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164, Cr.P.C. had regularly been performed as is envisaged by Section 114 of the Indian Evidence Act. In addition to that, we are of the opinion that the recorded statement being the record indicating the performance of the official and judicial functions or acts of a Judge under the prevailing provisions of the law of the land could be a document properly covered by Section 35 of the Indian Evidence Act and, as such, assumes the character of a public record which is covered by Section 72 of the Evidence Act."
44. However, the order dated 16.11.2017 which was passed on an application preferred by the NIA not to issue the certified copy of the statement recorded under Section 164 of Cr.P.C. is not under challenge in -31- the present application and the said issue is not being gone into for the present and is left open.
45. The Unlawful Activities (Prevention) Act, 1967 defines a terrorist act as envisaged in Section 15 which reads as follows:
"15. Terrorist act.-- [(1)] Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [, economic security,] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or [(iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or 6[an international or inter-governmental organisation or any other person to do or abstain from doing any act; or], commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates compromises with the key security features as specified in the Third Schedule.] [(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.]"
46. Handing over the investigation to the NIA after 9 years from the date of incident cannot be scuttled only on the ground of lapse of time as claimed by the learned counsel for the petitioner. The original FIR being Bundu P. S. Case No. 65 of 2008 clearly discloses that a terrorist act was -32- caused in which a sitting MLA was brutally murdered along with his bodyguard and others. The extremists had left the place of occurrence by shouting slogans in favour of the banned organisation MCC. The act itself was to create terror in the heart of the people to surrender to its ideology and sinister design. Such devastating act threatening to strike at the integrity, security and sovereignty of the country without doubt cannot be termed to be an act of culpable homicide. The State investigation agency had investigated into the case as if it was a simple case of murder without at all considering that the said act constituted an act of terrorism. Surprisingly enough when the incident itself prima- facie reveals the involvement of the extremists organization - MCC, the investigating agency opted to remain silent and only when the Criminal Investigation Department took steps for adding Section 18, 20 & 38 of the UAP Act and informed the concerned department of the Central Government did immediate and effective steps taken to handover the investigation to the National Investigation Agency.
47. The impugned notification dated 28.06.2017 therefore, cannot be said to have been passed on an unreasonable and colourable exercise of powers and the same is in consonance with the provisions of the National Investigation Agency Act, 2008.
48. Consequent to the discussions made hereinabove, I am not inclined to entertain this writ application, which accordingly stands dismissed.
Pending I.A(s) stands disposed of.
(Rongon Mukhopadhyay, J) R. Shekhar Cp 3/AFR