2013 Supreme(Bom) 2067

High Court of Judicature at Bombay
S.C. DHARMADHIKARI & S.B. SHUKRE, JJ.
Pragyasingh Chandrapalsingh Thakur & Another
Versus
State of Maharashtra Through Additional Chief Secretary, Home Department & Others
Criminal Writ Petition Nos.4049 of 2012 & 1325 of 2012
Decided On : 11-10-2013

Headnote:Criminal Procedure Code, 1973 - Section 156 - Investigation of offences. - Accused, cannot insist on being investigated by a particular agency or by a particular investigating officer at a particular police station. - The petitioners in these writ petitions are the accused. They are facing trial in criminal case arising out of the C.R. No. 130/2008 lodged at Azad Nagar Police Station, Malegaon on 30.9.2008 alleging offences punishable under Sections 302, 307, 324, 326, 427, 153-A and 120-B of the Indian Penal Code etc.. Once they are accused of such serious offences and are facing trial Court cannot forget that challenge to the constitutional validity of the NIA Act is being raised at their instance. The law is too well settled to require any reiteration and namely that it is not for the accused to decide as to who should investigate and put them to trial. They cannot insist on being investigated by a particular agency or by a particular investigating officer at a particular Police Station. The accused has no right in such matters.

       NATIONAL INVESTIGATION AGENCY ACT, 2008 - Sections 2 and 6 - Constitution of India, Articles 245 and 246, Sch. VII - Constitutional Validity of Act, 2008. - Since Parliament was competent to enact NIA Act, 2008 hence Act, 2008 cannot be declared as unconstitutional. - The Parliament‘s exclusive power to make laws with respect to any of the matters enumerated in List-I in the VIIth Schedule is set out in clause (1) Article 246. Clause (2) refers to the Concurrent List, namely, List-III in the VIIth Schedule and in the matters enumerated in List-Ill, both the Parliament and subject to Clause (1), the Legislature of any State also has power to make laws with respect to any of the matters enumerated in List-III in the VIIth Schedule. If one peruses Entry-2 in List-II entitled “police“ that is not an entry worded in absolute terms, but it includes Railway and Village Police. But, while including Railway and Village Police, it is subject to provisions of Entry-2-A of List-I and it is importantly excluding an entry in List-III, namely, “criminal law and criminal procedure“ which are enumerated in Entry 1 and Entry 2 of the Concurrent List and in regard to which both the Parliament and the States can make laws.

       Therefore, when it comes to defence of India and matters relating to Naval, Military and Air Force, any other Armed Forces of the Union, Atomic Energy and mineral resources, so also, Central Bureau of Intelligence and Investigation, then, in relation to the same the Parliament is not incompetent to make any law. Therefore, assuming that the State has power to make a law in relation to Police, still going by the wide wording of Entry-1 and Entry-2 of List-III, namely, Concurrent List, it is clear that the Parliament is competent to enact the NIA Act, 2008.

       The power to legislate is given by Article 246 and other articles of the Constitution of India. The entries in the Lists are mere legislative heads and are of an enabling character. They are designed to define and delimit the respective areas of legislative competence of the Union and State Legislatures. They neither impose any implied restrictions on the legislative power conferred by the Article nor prescribe any duty to exercise that legislative power in any particular manner. Further, in case of apparent overlapping between two entries, the doctrine of Pith and Substance has to be applied to find out the true nature and character of the legislation and the entry within which it would fall.

       The N.I.A. Act does not create any offence by itself. It only provides for creation of a machinery for investigation and prosecution of certain offences and which are carved out in the laws made by the Parliament. Pertinently the Acts in the schedule to the NIA Act are the Acts of the Parliament. They are referable to different entries in List-I. Therefore, if the doctrine of Pith and Substance is applied, the NIA Act would squarely fall under Entry-2 in List-III of the Concurrent List, namely, Criminal Procedure including all matters included in the Code of Criminal Procedure at the commencement of the Constitution. The Parliament has power to make laws in respect of any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. [see Article 246 (4)]. Further, Article 249 of the Constitution of India also puts in the forefront a matter in the State List which is in the national interest and confers the power on the Parliament to legislate with respect thereto. Further, the constitutional theme going from Article 250 to Article 253 also enables us to hold that the Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

       In such circumstances it is not accepted that the Parliament was incompetent to legislate and enact the NIA Act. Thus reading the entries in List-I and List III together and harmoniously would lead to conclusion that the Parliament was competent to enact the NIA Act. It cannot be declared as unconstitutional and vitiated for lack of legislative competence in the Indian Parliament. If the investigating agencies are set up, but there is no prohibition against the investigations being carried out or handed over to any agency other than a named agency, then by mere change or shifting of agency the Parliament cannot be said to have encroached upon the powers of the State Legislature.

       Even in matters confined to the State the investigations can be handed over or taken over by a Central Investigation Agency like CBI and in exceptional circumstances. If that does not violate or contravene the constitutional provisions and particularly dealing with distribution of legislative powers, then, all the more the NIA Act cannot be declared as unconstitutional. In other words, by a holistic approach and harmonious reading of the constitutional provisions and entries in the schedule, it will be permissible to hold that the Parliament was competent to enact the NIA Act, 2008.

       National Council for Teacher Education Act, 1993 - Section 6 - Constitution of India, Articles 14, 16 and 21 - Constitutional validity of Section 6 of Act. - Since Powers under Section 6 of Act, conferred on Central Government to direct NIA to investigate scheduled offences is to be exercised consistent with object hence provision of Section 6 of Act not ultra vires Articles 14 and 21 of Constitution. - Perusal Section 6 of NIA Act would reveal that it is on receipt of information and recording thereof under Section 154 of the Code of Criminal Procedure, 1973 relating to any scheduled offence that the officer-in-charge of Police Station shall forward a report to the State Government forthwith. What is to be done on receipt of a report under sub-section (1) is then provided by sub-section (2). Thus, receipt of information and report to the State Government by the officer in-charge of the Police Station is one step. The second is receipt of a report under sub-section (1) and thereafter, forwarding that report to the Central Government as expeditiously as possible. Both are thus mandatory. Thereafter, the Central Government shall determine on the basis of the information made available by the State Government or received from other sources within 15 days from the date of receipt of the report, whether, the offence is scheduled offence or not and also having regard to the gravity of the offence and other relevant factors, whether it is a fit case to be investigated by the agency. Thus, sub-section (3) of Section 6 enables the Central Government to take a decision in terms thereof, on receipt of the report from the State Government and the information contained in same or received from other sources, whether the offence is scheduled offence or not and also whether, having regard to the gravity thereof and other relevant factors it is fit enough to be investigated by the NIA. Merely because it is a scheduled offence, the Central Government will not be in a position to direct that it shall be investigated by the agency. It will have to apply its mind to the gravity of the offence and other relevant factors. "Gravity of the offence and other relevant factors" are not words of inexactitude.

       They cannot be termed as vague either. The ordinary meaning of the term "grave" is serious. The word "gravity" is used advisedly because the scheduled offence is grave enough for the NIA to step in, it is because it is not only grave and serious, but because it has such repercussions and ramifications which affect the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under the Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organizations and for matters connected therewith or incidental thereto. Thus, as spelled out in the statement of objects and reasons, if the offences are grave and other relevant factors have to be taken into account it is then alone the Central Government can arrive at/and record a satisfaction that it is a fit case to be investigated by the NIA. Thus, there are inbuilt checks and safeguards and it is not as if uncanalized, unbridled or totally arbitrary powers have been conferred in the Central Government by sub-sections (3), (4) and (5) of Section 6 of the NIA Act. Apart from gravity of offence and other relevant factors, the Central Government will also have to satisfy itself that it is a fit case to be investigated by the agency and then alone it can direct the agency to investigate the said offence. Just because the Central Government is conferred with the power to direct that investigation of the scheduled offences be carried out by the NIA that the constitutional mandate is not violated or breached. The powers conferred in the Central Government including suo motu have to be exercised consistent with the object and purpose sought to be achieved by the NIA Act. The powers cannot be exercised merely for the asking or in a routine manner. The powers can be exercised only if the requisite satisfaction is reached and in the manner permissible in law. That satisfaction will have to be recorded and for recording the same, reasons will have to be assigned. It is not as if on receipt of the report from the State Government or information from other sources that the Central Government is obliged to handover the investigation to the NIA or direct the NIA to take over investigation of the scheduled offences. Everything depends upon the facts and circumstances in each case. There is a presumption that the power will be exercised fairly, reasonably and bona fide. That presumption can be rebutted by an aggrieved person and after discharging the burden and proving that it has been misused and abused, then, in an appropriate case the superior Courts will exercise their inherent powers and issue prerogative writs so as to prevent such abuse or misuse. However, the burden will be on those who allege such misuse or abuse. So long as the power is conferred in the Central Government and there are inherent and inbuilt checks and balances, then, the provision cannot be declared as unconstitutional and ultra vires Articles 14 and 21 of the Constitution of India. Even for suo motu power to be exercised, the Central Government must have before it some definite material and which would enable it to hold that the offence is scheduled offence and having regard to its gravity and other relevant factors it is fit to be investigated by the NIA. Merely because suo motu power can be exercised without any report from the State Government does not mean that the same can be exercised without any material or information at all. It cannot be said that the Central Government will exercise suo motu powers vide Section 6 (5) by ignoring and brushing aside the mandate flowing from the NIA Act or from sub-sections (3) and (4) of Section 6. As there are enough provisions in the statute in question which controls the exercise of powers under the same. There is presumption of constitutionality of the statute and not otherwise. Thus, there is no basis for submission that Section 6 is unconstitutional.

       National Council for Teacher Education Act, 1993 - Sections 3 and 6 - DSPE Act, 1946 - Investigation of Scheduled Offences. - Absence of provision like Section 6 of DSPE Act, 1946 would not render Section 6 of NIA Act or any of its sub-sections unconstitutional, null and void.

       National Council for Teacher Education Act, 1993 - Sections 3 and 6 - Constitution of India, Articles 245 and 246, Sch. VII, List II - - Enactment of Act, 2008. - Mere presence of entry "Police" in List II, will not mean that NIA Act, 2008 is an Act to establish and constitute a Police Force in garb of agency called NIA

       National Council for Teacher Education Act, 1993 - Section 6 - Cr PC, 1973, Section 123 - Jurisdiction to investigate scheduled offences. - Jurisdiction and authority of competent Criminal Court and equally that of superior Courts, cannot be said to be taken away. - Ordinarily, the term "prosecution" signifies the procedure for obtaining the adjudication of a Court of justice with respect to acts and omissions punishable by penal or criminal sanction, as action or suit describes the procedure for obtaining civil remedies for the alleged infraction of civil rights. It is also a judicial proceeding before a Court or legal tribunal. Hence, it is not as if the investigation and for the purpose of prosecution before the competent Criminal Court will be without any control or supervision of the Court. Ultimately, the investigation culminates into filing of a report before the competent Criminal Court and it is that Court which exercises the powers in relation to prosecution of the case. The NIA, therefore, will have to file these reports and in terms of Section 173 of the Code of Criminal Procedure, 1973 in the competent Criminal Court.

       It is for that Court then to consider the matter. If there is grievance in relation to the investigation that can be voiced before the competent Criminal Court. If there is abuse of the powers conferred in that behalf, then, that issue can be raised by the aggrieved parties or persons before the competent Criminal Court. If the competent Criminal Court does not take cognizance thereof and refuses to redress that grievance, then, the jurisdiction of superior Courts can always be invoked. Therefore, the jurisdiction and authority of the competent Criminal Courts and equally that of superior Courts cannot be said to be taken away. Thus, there is no warrant for reading down the provision in question and once the settled principle of harmonious construction is applied. If in the garb of a fresh investigation or additional investigation, the NIA proceeds to reinvestigate or undertakes a denovo investigation, then, it is not as if parties like the petitioners are remedyless.

       They can bring to the notice of the competent Criminal Court all their grievances and complain about the manner in which the investigation is carried out and extent thereof. They can also seek intervention of the superior Courts by approaching them. There is adequate protection and it is not as if the investigations are found to be unfair or partial and improper that the petitioners or persons similarly situate are prevented from invoking appropriate powers of the competent Court. There is a guarantee flowing from the constitutional provisions and particularly of an independent judiciary. So long as this guarantee is intact and the power, authority and jurisdiction of the competent Courts are untouched leave alone taken away, it cannot be said that NIA will necessarily brush aside all investigations carried out in the pending cases till date and embark upon reinvestigation necessarily.