2018 (3) TMI 1813 - HC - Indian Laws

Doctrine of separation of powers - scope of judicial review - offences punishable under the Indian Penal Code and Unlawful Activities (Prevention) Act 1967 - Scheduled offences - Whether a Court can interfere with the Executive s choice of Investigating Agency in Criminal Investigation? HELD THAT - We have carefully examined the original file of the Home Ministry placed for our perusal in sealed covers by the learned Additional Solicitor General. The proceedings recorded therein clearly indicate that the Home Ministry had received information that one of the accused was a senior leader of Popular Front of India . The Home Ministry sought information from the State Government. The State Government did not send any report. However in the meanwhile the Commissioner of Police conveyed to the NIA that offences under UA Act were included after obtaining permission from the Jurisdictional Magistrate. In the circumstances the Home Ministry have passed the order directing investigation by the NIA. We may record that the matter was considered at various levels of the Home Ministry and finally placed for consideration of the Minister of State (Home) as also the Union Home Minister. A careful and harmonious reading of the Statement of Objections filed by the Central Government in juxtaposition with the file notings leads to an inference that though the State Government had not sent any report to the Central Government the communication sent by the Commissioner of Police was on the file of the Home Ministry and the same was considered. We may further record that the Home Ministry s notings clearly refers to the communication sent by the Commissioner of Police. In the circumstances we find no error in Central Government invoking suo motu power. As a corollary the view taken by the Hon ble Single Judge amounts to substitution of Executive s opinion and therefore not sustainable. It is also fairly well-settled that doctrine of separation of power does not permit transgression of jurisdictions between the Legislature the Executive and the Judiciary. We may hasten to add that the Executive s decision may be called in question seeking judicial review. But judicial review is permissible strictly within well-defined parameters. Thus the Writ Petitions were filed invoking Article 226 of the Constitution of India and they were adjudicated as such - these Writ Appeals are maintainable - appeal allowed.

Summary

Issues Involved:
1. Doctrine of Separation of Powers
2. Scope of Judicial Review
3. Validity of Central Government's order directing NIA investigation
4. Maintainability of Writ Appeals

Detailed Analysis:

1. Doctrine of Separation of Powers:
The judgment examines whether the judiciary can interfere with the executive's choice of the investigating agency in criminal investigations. The court emphasizes that national security matters are policy decisions, not legal questions, and are within the executive's purview. The court quotes several precedents reinforcing that decisions on national security should be left to the executive, as they have access to necessary information and are better suited to make such judgments.

2. Scope of Judicial Review:
The court discusses the limited scope of judicial review concerning executive decisions on national security. Judicial review is permissible only within well-defined parameters, such as illegality, irrationality, and procedural impropriety. The court cites the Supreme Court's decisions, asserting that judicial review focuses on the decision-making process rather than the decision itself. The court concludes that the executive's decision to involve the NIA in the investigation does not suffer from legal infirmity and is based on proper material and considerations.

3. Validity of Central Government's Order Directing NIA Investigation:
The court analyzes whether the Central Government's order directing the NIA to investigate was based on appropriate material. The court finds that the Home Ministry had sufficient information, including a communication from the Commissioner of Police, indicating the inclusion of offences under the Unlawful Activities (Prevention) Act (UA Act). The court holds that the Central Government's decision was justified and did not constitute an arbitrary exercise of power. The court criticizes the Single Judge's decision to set aside the Home Ministry's order, stating it amounted to substituting the executive's opinion with the court's view.

4. Maintainability of Writ Appeals:
The court addresses the maintainability of the writ appeals, noting that the petitions were filed under Articles 226 and 227 of the Constitution. The court refers to a Full Bench decision, which held that appeals against orders passed by a Single Judge in proceedings under Articles 226 and 227 are maintainable. The court concludes that the writ appeals are maintainable and dismisses the writ petitions.

Conclusion:
The appeals are allowed, and the Single Judge's order setting aside the Home Ministry's directive for NIA investigation is reversed. The writ petitions challenging the Central Government's order are dismissed, and all pending interlocutory applications are disposed of. The court makes no order as to costs.