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2018 (3) TMI 1813

..... t 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 Stat .....

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..... s per their status in the writ petitions. 5. Relevant facts of the case are, on 16.10.2016, a First Information Report (FIR), was registered in Crime No. 124/2016 with the Commercial Street Police Station, Bengaluru, for offences punishable under Sections 302 and 34 IPC. During investigation, police arrested accused No. 1 to 4. Based on their statements, accused No. 5 was arrested. 6. On 05.11.2016, police filed an application before the learned Magistrate to include Sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 ('UA Act' for short) and the learned Magistrate accepted the prayer. 7. By an order dated 07.12.2016, the Ministry of Home Affairs, Government of India, exercising power under Section 6(5) and Section 8 of National Investigation Agency Act ('NIA Act' for short) directed the Superintendent of Police, NIA, Hyderabad to register the case and take up investigation. Accordingly, an FIR bearing No. RC-04/2016-17 was filed by the NIA. 8. Feeling aggrieved, petitioners presented two writ petitions with following prayers: (i) to set aside the order dated 05.11.2016 passed by the learned Magistrate permitting to add Sections 15, 16, .....

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..... that, by a communication dated 24.11.2016, the Commissioner of Police, Bengaluru City, informed the National Investigating Agency about Crime No. 124/2016 and inclusion of Sections 15, 16, 17, 18 and 20 of the UA Act and Sections 109, 150, 153A, 120B, 201 IPC and Sections 3 & 27 of the Arms Act, 1957 by the State Police. 15. Having regard to the gravity of the offence, Central Government were of the opinion that the 'scheduled offences' were required to be investigated by the National Investigation Agency. Accordingly, Central Government, suo motu, directed the NIA to take up the investigation. 16. Shri Navadgi, further submitted that, an offences under the UA Act, are scheduled offences under the NIA Act. Sections 15, 16, 17, 18 and 20 of UA Act were included by the State Police. The NIA Act confers power upon the Central Government to direct the Agency to investigate into the matter either suo motu or upon a report received from the State Government. 17. Shri Navadgi, further submitted that, National Security is a matter of prime importance and concern. Scheduled Offences are required to be investigated thoroughly to ensure that offenders brought to justice. He strong .....

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..... r contended that, the 'Popular Front of India', of which, one of the petitioners (Asim Shariff) is the District President, is a Social Organization registered under the Society's Registration Act. To achieve the objectives of the organization, only constitutional and democratic ways are employed by the members of the Institution. The organization, vehemently opposed the divisive agenda of communal forces and thus invites the irk of such divisive forces, which indulge in defaming petitioners' organization. 24. He further submitted that, inclusion of provisions of UA Act, is an attempt to malign the image of the organization. The scope and object of the said UA Act is to deal with terrorists defined under Section 15, when such acts are done by 'banned organizations'. The 'Popular Front of India', is not a banned organization and therefore, inclusion of offences under the UA Act, was unwarranted. 25. He further submitted that, the National Investigation Agency is established to investigate into such matters, which involve sovereignty, security and integrity of India. The offences punishable under Sections 302 and 34 IPC, mentioned in the FIR, could have .....

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..... (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 .....

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..... ments for consideration of the Central Government, which again goes to show that, the contention taken up by the Central Government that, it has based its decision on the report submitted by the State Government is false. ................" (emphasis supplied) 35. We may record that, the Central Government, in their Statement of Objections, have stated thus: "4. The Central Government vide letter dated 18.11.2016, requested the Government of Karnataka to furnish information about the case FIR No. 124/2016 in accordance with Section 6(2) of the NIA Act, 2008. The Commissioner of Police, Bengaluru City, vide his Letter No. Addl.CP/CRM/CC/14416 dated 24.11.2016 confirmed invocation of section 15, 16, 17, 18 and 20 of the UAPA in this case. The copy of communication dated 24.11.2016 is produced herewith as annexure R-1. Based on the report of the Government of Karnataka and the information received from other sources, the Central Government was of the opinion that scheduled offences has been committed and keeping in view, the gravity of the offence, the Central Government directed the NIA in accordance with section 6(5) of the NIA Act, 2008 who take up the investigation of the .....

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..... aw or otherwise discussed in public." (emphasis supplied) 14. According to Lord Cross in Crompton Alfred Amusement Machines v. Customs and Excise Commissioners (No. 2) [1974 AC 405 : (1973) 3 WLR 268 : (1973) 2 All ER 1169 (HL)] : (AC p. 434 F-G) "... In a case where the considerations for and against disclosure appear to be fairly evenly balanced the courts should, I think, uphold a claim to privilege on the grounds of public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill effects of non-disclosure." 15. It is difficult to define in exact terms as to what is "national security". However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc. 16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002) 1 All .....

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..... he case of T.N. v. State of Kerala reported in (2014) 12 SCC 696. "126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs-legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers." 43. So far as the scope of the judicial review is concerned, we may quote following passages from the decision of the Hon'ble Supreme Court in the case of Heinz India (P) Ltd. v. State of U.P., reported in (2012) 5 SCC 443: 61. The ab .....

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..... herwise void on well-established grounds. The constitutional balance cannot be upset." 64. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision-making process. (See Chief Constable of the North Wales Police v. Evans [(1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)]). As a matter of fact, the juristic basis for such limitation on the exercise of the power of judicial review is that unless the restrictions on the power of the court are observed, the courts may themselves under the guise of preventing abuse of power, be guilty of usurping that power. 65. Frankfurter, J.'s note of caution in Trop v. Dulles [2 L Ed 2d 630 : 356 US 86 (1958)] is in this regard apposite when he said: (L Ed p. 653) "... All power is, in Madison's phrase, 'of an encroaching nature'. ... Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint." 66. That the court dealing with the exercise of power of judicial review does not substitute its judgm .....

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..... , nature and relief sought pertain to anything connected with criminal jurisdiction, intra-court appeal would not lie as the same is not provided in Clause 10 of the Letters Patent. Needless to emphasise, if an appeal in certain jurisdictions is not provided for, it cannot be conceived of. Therefore, the reliance placed upon the larger Bench authority in Hari Vishnu Kamath [Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233] does not render any assistance to the argument advanced by the learned counsel for the respondent State. (emphasis supplied) 46. In these appeals, Union of India are aggrieved by the decision of the Hon'ble Single Judge, setting aside Home Ministry's Order. Challenge to the Executive's decision, in our view, cannot be brought within the purview of 'anything connected with the criminal jurisdiction'. Therefore, in our view, the ratio laid down in the said decision does not apply to the facts of this case, as no criminal proceedings are adjudicated in the Writ Petitions. 47. Further, Section 4 of the Karnataka High Court Act, 1961, provides for an appeal from an order passed by the Hon'ble Single Judge before a Bench consisting of two ot .....

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