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PANKAJ BHANDARI, BHUWAN GOYAL
Sadiq Sarraf – Appellant
Versus
Union Of India – Respondent
ORDER :
The petitioners have filed this Habeas Corpus Petition praying therein that the custody of the petitioners be declared as illegal and they be set at liberty.
2. In the petition, the petitioners have pleaded that an FIR No.RC-41/2022/ NIA /DLI dated 19.09.2022 was registered at Police Station, NIA , New Delhi under Sections 120-B and 153-A of IPC and Sections 13 and 18 of UA(P)A, 1967 is illegal and without any jurisdiction. The said FIR was registered after receipt of an order bearing number F.No.11011/83/2022/ NIA dated 16.09.2022 from respondent No.1 i.e. under Secretary to the Ministry of Home Affairs, Union of India, which order was passed under Section 6 (5) of the National Investigating Agency Act, 2008 (hereinafter referred to as "the NIA Act"). The petitioners were arrested in connection with the impugned FIR from Kerala where they were attending organizational meeting conducted by the Popular Front of India (hereinafter referred to as "the PFI").
3. It is contended by the counsel for the petitioners that the respondents had no statutory power or constitutional power to pass any order under Section 6 (3) of the NIA Act as law and order is the State subject and the
Point of law: It emanates from the scheme of the NIA Act that the scheduled offence is one enumerated in the schedule appended to the NIA Act. Thus, any further declaration in this regard by the Cent....
The investigation of non-cognizable offences without the order of a Magistrate is illegal and cannot be cured. The impugned FIR must disclose a cognizable offence to justify an investigation by the p....
The police must obtain a Magistrate's permission before investigating a non-cognizable offence and registering an FIR based on the same facts, according to the Bharatiya Nyaya Sanhita, 2023.
Cognizance of an offence under Section 188 IPC requires a written complaint by a public servant; FIRs based solely on police reports are prohibited and rendered void.
The registration of FIR under Section 188 IPC without a written complaint from the concerned public servant is impermissible and renders the proceedings void ab initio.
A prior inquiry under Section 174 does not constitute an FIR, hence a second FIR can be registered based on new evidence, permitting continued investigation regardless of jurisdictional issues.
The accused has no right to a hearing before the registration of an FIR, and anyone can initiate criminal proceedings unless explicitly barred by law.
The police are mandated to register an FIR when information discloses a cognizable offense, without questioning the reliability of the information at that stage.
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