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2018 (3) TMI 1813

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..... nistry 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, .....

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..... se 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, 17, 18 and 20 of UA Act in the FIR registered as Crime No. 124/2016; (ii) to quash Notification No. 11011/33-2016-IS-IV passed by the Ministry of Home Affairs; (iii) to quash FIR and RC-04/2016-17 registered by NIA for offences punishable under Sections 109, 120B, 201, 150, 153A, 302 read with 34 IPC and Sections 15, 16, 17, 18 and 20 of UA Act; and (iv) to set aside the order dated 24.1.2017 passed by the Special Court extending minimum investigation period to 180 days. 9. The main grounds urged by the petitioners in support of their writ petitions are: that one of the petitioners is the District President of a Social organization called 'Popular Front of India'; that petitioners are not involved in any anti-social or anti-national activities; that inclusion of offences under the UA Act, has maligned the image of the organization; and that NIA is meant for investigation of offences .....

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..... 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 strongly urged that, it is the prerogative of the executive to choose the investigating agency and the scope of judicial review of Executive's decision is very limited. He argued that, the decision rendered by the Hon'ble Single Judge is unsustainable in law as it amounts to substitution of Executive's opinion by the Court. 18. He further submitted that, the Central Government had placed two sealed covers containing sensitive information of this case before the Hon'ble Single Judge. He prayed that, this Bench may also peruse the material placed to satisfy itself with regard to the decision taken by the Central Government. 19. Shri Navadgi, placing reliance on two authorities concluded his arguments with a prayer to set aside the order passed by the Hon'ble Single Judge. 20. Shri P. Prasanna Kumar, appearing for NIA and Shri V. Sreenidhi, appearing for State Police, argued in s .....

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..... 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 been dealt by the Local Police. Central Government has blown up the incident out of proportion and directed the NIA to investigate the matter. Hence, this is a case of arbitrary exercise of executive power. With these submissions, he prayed for dismissal of writ appeals. 26. We have carefully considered submissions made on behalf of Union of India, State Government, NIA and Writ Petitioners. We have also perused the records contained in the two sealed covers submitted by the learned Additional Solicitor General. 27. In the conspectus of the facts recorded hereinabove, the question that arises for our consideration is: "Whether a Court can interfere with the Executive's choice of Investigating Agency in Criminal Investigation?" 28. Indisputably, FIR discloses offences punishable under Sections 302 and 34 IPC. On 5.11.2016, the Assistant Commissioner of Police, K.R. Puram, Beng .....

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..... 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 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." (emphasis supplied) 31. As could be seen from the above extracted Section, discretion is conferred by the Parliament upon the Central Government under sub-Section 5 of Section 6 of NIA Act, to suo motu direct investigation of an offence by the Agency, if in the opinion of the Central Government, the offence committed is a scheduled offence. 32. Therefore, the question, which needs to be considered is, whether the opinion of the Central Government is based on the material on record. If the decision by the Central Government, is based on proper appreciation of mate .....

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..... tion 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 said case." 36. 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. 37. We may now deal with the authorities relied upon by the learned Additional Solicitor General. 38. In the case of Ex-Armymen's Protection Services .....

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..... 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 ER 122 (HL)] : (AC p. 192C) "... [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive." (emphasis supplied) 39. In the case of Central Bureau of Investigation and Another v. Rajesh Gandhi and Another reported in (1996) 11 SCC 253, the Hon'ble Supreme Court, has held as follows: "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 prov .....

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..... 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 above principles have been accepted even by this Court in a long line of decisions handed down from time to time. We may, however, refer only to some of those decisions where the development of law on the subject has been extensively examined and the principles applicable clearly enunciated. 62. In Tata Cellular v. Union of India [ (1994) 6 SCC 651] this Court identified the grounds of judicial review of administrative action in the following words: (SCC pp. 677-78, para 77) "77. The duty of the court is to confine itself to the question of legality. Its concern should be: (1) Whether a decision-making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached or, (5) abused its powers. Therefore, it is not for the court to determine whether a particular polic .....

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..... er 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 judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land. (See Union of India v. S.B. Vohra [ (2004) 2 SCC 150 : 2004 SCC (L & S) 363], Shri Sitaram Sugar Co. Ltd. v. Union of India [ (1990) 3 SCC 223] and Thansingh Nathmal v. Supdt. of Taxes [AIR 1964 SC 1419].)" 44. We may summarise that, Home Ministry, based on the communication by the Commissioner of Police, had on its record, inclusion of offences under UA Act in Crime No. 124/2016. Though requested, the State Government did not send th .....

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..... e 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 other Judges of the High Court. This aspect was considered by a Full Bench of this Court in the case of M/s. Ritz Hotels (Mysore) Limited v. State of Karnataka and Others reported 1996 (7) Kar. L.J. 600 (FB), wherein, it is held as follows: "In the instance case also, the writ petition was filed both under Articles 226 and 227 of the Constitution. A perusal of the pleadings and the judgment of the learned Single Judge clearly indicated that in fact and substance the petition was under Article 226 of the Constitution. After referring to the various provisions of law and the judgments as noted herein above, we are of the opinion that the Division Bench in Kalpana Theatre's case, supra, was not justified in holding that no appeal against an order passed by the Single Judge in a proceeding arising out of a petition filed under Article 227 of the Constitution was maintainable. The scope o .....

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