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24. It is submitted by learned counsel for Appellant that, the Report of Inquiry also reveals that the RDX was planted by ATS officer in the house of Accused No.11-Sudhakar Chaturvedi. There are statements to that effect of PW-180 and PW-183, recorded by NIA and, accordingly, NIA has also, after thorough investigation, 15 APEAL-664-16-Prasad Purohit.doc disbelieved the story of ATS, that of RDX traces found in the house of Accused No.11-Sudhakar Chaturvedi. According to learned counsel for the Appellant, the Trial Court has, however, ignored these statements of witnesses and also the investigation conducted by the NIA.

Re-investigation / Further Investigation Carried Out by NIA

92. In the present case, admittedly, two Investigating Agencies have conducted the investigation. Initially, ATS has filed Charge- Sheet against, in all, twelve accused persons, including the present Appellant, showing two accused, by name, Ramji @ Ramchandra Gopalsingh Kalsangra and Sandip Dange, as 'absconding accused'. Thereafter, NIA has made investigation in the matter, as per the direction of the Central Government, and has submitted further Investigation Report, under Section 173(8) of the Code. The Report filed by NIA reveals that NIA is not in agreement with the investigation done by ATS on certain points, but, at the same time, NIA has accepted the investigation done by ATS on several other aspects of the matter. NIA has recorded the statements of some more witnesses and re-recorded the statements of the witnesses already examined by ATS. NIA has also exonerated some of the 59 APEAL-664-16-Prasad Purohit.doc Accused, like, Accused No.1-Pragya Singh Thakur, Accused No.2- Shivnarayan Kalsangra, Accused No.3-Shyam Sahu, Accused No.12- Praveen Takkalki, Accused No.15-Lokesh Sharma and Accused No.16-Dhan Singh Choudhary, of all the charges levelled against them. However, so far as Appellant is concerned, NIA has, admittedly, not exonerated him from the charges levelled against him, though the charges under MCOC Act are dropped against him also, along with the other co-accused.

94. Reading of above observations make it clear that power of ordering fresh or de novo investigation needs to be exercised by the higher judiciary sparingly and in the rarest of rare cases. There is no dispute that NIA in the present case has not undertaken such further investigation on the basis of any order passed by the higher judiciary but the Central Government in exercise of powers under section 6(5) of the NIA Act, by the order dated 1st April 2011 transferred the investigation of the subject crime to the NIA and accordingly NIA re-registered the offence and started further investigation. The order of the Central Government transferring the 61 APEAL-664-16-Prasad Purohit.doc investigation of the subject crime to the NIA was challenged by the present Appellant by filing Criminal Writ Petition No.4049 of 2012 which was decided by this Court by its order dated 11 th October 2013. In the said writ petition the Appellant herein challenged the handing over of the investigation to the NIA and sought a writ restraining NIA from exercising any power in pursuance of the NIA Act for doing fresh or further investigation of the subject crime. However, after hearing the parties and analysing the provisions of NIA Act, this Court concluded that the power of NIA to investigate is absolute and it is a matter of procedure, then there is no vested right created in the accused to object to the course permitted by the statute and there is no need to read down section 6 of the NIA Act. It was further held by this Court that when the NIA comes into picture for the purpose of investigation and prosecution of the scheduled offence, then, that very object and purpose will be defeated if the investigating agency is prevented from investigating the crime.

107. In the instant case, the investigation done earlier by ATS, therefore, cannot be said to be wiped out totally from the record merely because, subsequently, NIA has carried out fresh / de novo or re-investigation. Admittedly, the NIA has not undertaken such "further", "fresh" / "de novo", or, re-investigation on the basis of or in pursuance of any order passed by the higher judiciary, but NIA has done so under the provisions of Section 6(5) of the NIA Act, which empowers the Central Government to suo-motu direct the investigation by NIA, if the Central Government is of the opinion that a scheduled offence has been committed. Therefore, as investigation was directed by Central Government, there was no question of higher judiciary making any specific order that the earlier report of investigation carried out by ATS or any part thereof 69 APEAL-664-16-Prasad Purohit.doc was to be excluded or struck-off the record and to be treated as non est. In such situation, both, the report of the investigation filed by ATS and also the report of investigation filed by NIA are required to be considered and read conjointly to decide whether any prima facie case exists against the Appellant.