Kerala High Court
Asharaf S. @ Karamana Ashraf Moulavi vs Union Of India on 1 December, 2023
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA,
1945
CRL.MC NO. 8198 OF 2023
RC NO.2/2022 OF NATIONAL INVESTIGATION AGENCY KOCHI,
Ernakulam
SC 2/2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM
PETITIONERS/ACCUSED NOS.38, 40, 41, 44, 45, 46, 56, 57,
58:
1 ALI K @ RAGAM ALI, AGED 56 YEARS
S/O.MOIDEENKUTTY, KUNNATHU HOUSE, UMI KUNNU,
PATTAMBI-P.O, PALAKKAD DISTRICT, PIN - 679303
2 FAYAS, AGED 29 YEARS
S/O.ABDUL RASHEED, RMF MANZIL,
BEHIND JAMAT MOSQUE, THOTTUPALAM,
CHANDANAMKRUSSI, NURANI P.O,
PALAKKAD DISTRICT, PIN - 678001
3 SADDAM HUSSAIN M.K., AGED 31 YEARS
S/O.ALI, MULAYANKAYIL HOUSE, KALLAMKUZHI,
KANJIRAPPUZHA P.O, MANNARKKAD,
PALAKKAD DISTRICT, PIN - 678591
4 ASHRAF, AGED 30 YEARS
S/O.SAINUDEEN, KALLAMPARAMBIL HOUSE,
LAKSHAM VEEDU, KAVILPAD, OLAVAKKODE,
PALAKKAD DISTRICT, PIN - 678002
5 AKBAR ALI, AGED 26 YEARS
S/O.FAROOQ, PEZHUMKARA, PALLIPURAM P.O,
PALAKKAD DISTRICT, PIN - 678004
6 NISHAD, AGED 39 YEARS
S/O.ABOOBACKER, NISHAD MANZIL, PALLIPARAMBU,
PUDANUR, MUNDUR, PALAKKAD DISTRICT, PIN - 678592
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023 -: 2 :-
7 RASHED K.T @ KUNJUTTY, AGED 41 YEARS
S/O.ASSAINAR, KOTTILINGAL THODI, MANNENGOD,
KARINGANAD, KOPPAM, PATTAMBI,
PALAKKAD DISTRICT, PIN - 679307
8 SAIDALI @ MUTHU, AGED 38 YEARS
S/O.MOOSA, THOTTINGAL HOUSE, KULUKKALLUR,
MAPPATTUKARA, KOPPAM, PATTAMBI,
PALAKKAD DISTRICT, PIN - 679307
9 NOUSHAD M, AGED 41 YEARS
S/O.AVARA, MULLAPATTA, PATTAMBI,
VILAYUR WEST P.O,
PALAKKAD DISTRICT, PIN - 679309
BY ADVS.
E.A.HARIS
P.P.HARRIS
S.SREEKUMAR (SR.)
RESPONDENTS/COMPLAINANT:
1 UNION OF INDIA
REPRESENTED BY SECRETARY,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
NEW DELHI, PIN - 110001
2 NATIONAL INVESTIGATION AGENCY
REP. BY SUPERINTENDENT OF POLICE, NIA,
KOCHI., PIN - 682020
3 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY,
KOCHI., PIN - 682020
BY ADVS.
MANU S. DSG OF INDIA
sasthamangalam S. Ajithkumar FOR NIA
SRI. ALEX M.THOMBRA, SENIOR GOVERNMENT PLEADER
SRI.S.U.NAZAR, SPECIAL GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 13.11.2023 ALONG WITH WP(Crl.).1044/2023, THE
COURT ON 01.12.2023, PASSED THE FOLLOWING:
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023 -: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA,
1945
WP(CRL.) NO. 1044 OF 2023
CRIME NO.2/2022 OF NATIONAL INVESTIGATION AGENCY KOCHI,
Ernakulam
SC 2/2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM
PETITIONERS:
1 ASHARAF S. @ KARAMANA ASHRAF MOULAVI
AGED 57 YEARS,
S/O SHAHUL HAMEED THOUFEEK MANZIL,
PALLI STREET, KARIMBUVILA, POONTHURA POST,
THIRUVANATHAPURAM, KERALA, PIN - 695026
2 SADIK A P @ SADIQ AHMED
AGED 35 YEARS
S/O. K. AHAMMED, PUTHUPARAMBIL HOUSE, PARAL
MUNDUKOTTACKAL POST, PATHANAMTHITTA DISTRICT,
KERALA, PIN - 689649
3 SHIHAS @ SHIHAS M.H., AGED 41 YEARS
S/O. HASSAN MAILADIYIL HOUSE, NADAKKAL POST,
THEVARUPPARA, KARAKKAD, ERATTUPETTA KOTTAYAM,
KERALA, PIN - 686121
4 ANSARI E.P @ ANSARI, AGED 45 YEARS
S/O. PAREEKOCHU ELAKKAYAM HOUSE, NADAKKAL POST,
KARAKKAD, ERATTUPETTA, KOTTAYAM
KERALA, PIN - 686121
5 MUJEEB @ M M MUJEEB, AGED 45 YEARS
S/O. MUHAMMED KUTTY MANKUZHAKKAL HOUSE, NADAKKAL
P O KARAKKAD, ERATTUPETTA, KOTTAYAM DISTRICT
KERALA, PIN - 686121
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023 -: 4 :-
6 NEJIMON @ NAJUMUDEEN, AGED 47 YEARS
S/O. ARSHUDHEEN NEDUMPACHAYIL HOUSE,
VANDANPATHAL, RPC POST, MUNDAKKAYAM,
KOTTAYAM KERALA, PIN - 686513
7 SAINUDEEN @ SAINUDEEN T S. AGED 47 YEARS
S/O.SAIDUMUHAMMAD, THAVALATHIL HOUSE,
PERUVANTHANAM POST, IDUKKI DISTRICT,
KERALA, PIN - 685531
8 P K USMAN @ USMAN, AGED 45 YEARS
S/O. KUNJIPPO PB PANNITHADAM,
NEAR GOVERNMENT LP SCHOOL, PATHIKKARA ROAD,
KUNNAMKULAM THRISSUR DISTRICT,
KERALA, PIN - 680519
9 MUHAMMEDALI @ KUNJAPPU, AGED 57 YEARS
S/O.KARAYIL MARAKKAR, KARAYIL HOUSE,
VALANCHERRY POST, KATTIPARUTHI,
MALAPPURAM, KERALA, PIN - 676552
10 SULAIMAN C T, AGED 48 YEARS
S/O. ABDUL AZEEZ VPM METTAMMAL HOUSE, ELAMBACHI,
SOUTH THRIKKARIPUR, KASARGOD DISTRICT,
KERALA, PIN - 671310
BY ADVS.
E.A.HARIS
RENJITH B.MARAR
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
NEW DELHI, PIN - 110001
2 NATIONAL INVESTIGATION AGENCY
REPRESENTED BY SUPERINTENDENT OF POLICE, NIA,
KOCHI., PIN - 682020
3 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY,
KOCHI, PIN - 682020
4 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023 -: 5 :-
HIGH COURT OF KERALA, PIN - 682031
5 ASSISTANT REGISTRAR
D1 SECTION, HIGH COURT OF KERALA,
KOCHI, PIN - 682031
ADDL.R6 HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTED BY THE REGISTRAR GENERAL
IS SUO MOTU IMPLEADED AS PER ORDER DATED
11/10/2023 IN WP(CRL.) 1044/23
BY ADVS.
MANU S. DSG OF INDIA
sasthamangalam S. Ajithkumar S
ADVOCATE GENERAL OFFICE KERALA
HARINDRANATH B G FOR R5 AND R6
DIRECTOR GENERAL OF PROSECUTION(AG-10)
P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC
PROSECUTOR()
SHRI.SAJJU.S., SENIOR G.P.()
AMITH KRISHNAN H.(K/000666/2015)
LEJO JOSEPH GEORGE(K/357-C/2017)
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 13.11.2023 ALONG WITH Crl.MC.8198/2023, THE
COURT ON 01.12.2023, DELIVERED THE FOLLOWING:
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023 -: 6 :-
C.R.
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
-----------------------------------------------
Crl.M.C.No.8198 of 2023
&
W.P.(Crl.) No.1044 of 2023
-----------------------------------------------
Dated this the 1st day of December, 2023
JUDGMENT
P.B.Suresh Kumar, J.
As some of the questions raised in these matters
are common, they are disposed of by this common judgment.
Parties and documents are referred to in this judgment, unless
otherwise mentioned, as they appear in Crl.M.C.No.8198 of
2023.
2. A crime was registered on 16.04.2022 by
Palakkad Town South Police Station as Crime No.318 of 2022 in
connection with the murder of one Srinivasan, an activist of
Rashtriya Swayamsevak Sangh (RSS)/Bharatiya Janata Party
(BJP). After investigation, a final report was filed in the said
case against 43 accused under Sections 120B, 34, 118, 119,
109, 143, 144, 147, 148, 449, 341, 201, 212 and 302 read with
Section 149 of the Indian Penal Code (IPC) and Section 3(a)(b)
(d) read with Section 7 of the Religious Institutions (Prevention
&
of Misuse) Act, 1988. The allegations in the final report, in
essence, are that in retaliation of RSS/BJP activists committing
murder of one Subair on 15.04.2022 who was an activist of the
organisation, Popular Front of India (PFI), the accused who are
activists of PFI conspired together and committed murder of
Srinivasan. After complying with the procedures prescribed,
the Jurisdictional Magistrate committed the accused for trial to
the Court of Session and the case was taken to file by the
Court of Session as S.C.No.982 of 2022 and made over the
same to the files of the Additional Sessions Court-I, Palakkad.
3. The investigation in the case continued even
after submission of the final report and it culminated in two
supplementary final reports also, arraying some more persons
as accused in the case. The persons arrayed as accused in the
supplementary final reports were however not committed for
trial and while committal proceedings initiated against them
were pending before the Jurisdictional Magistrate as C.P.
Nos.41 of 2022 and 61 of 2022, Central Government issued
Annexure A2 order on 16.09.2022 invoking sub-section (5) of
Section 6 and Section 8 of the National Investigation Agency
Act, 2008 (NIA Act) in terms of which, the NIA (National
Investigation Agency) was directed to take up investigation of
&
the offences committed by the leaders, activists and members
of PFI. It is stated in Annexure A2 order that the Central
Government received information that the office bearers and
activists of PFI and its affiliates in Kerala have conspired to
instigate communal violence and radicalise its cadres to
commit terrorist acts in the State and various other parts of
the country; that the office bearers and activists of PFI based in
Kerala maintain operational nexus with other proscribed
international terrorist organisations like Lashkar-e-Taiba (LeT),
Islamic State of Iraq and Syria (ISIS)/Daesh and Al-Qaida; that
some of the activists of PFI are also members of these
proscribed terrorist organisations and that PFI has created an
organisational web which is stretched to recruit vulnerable
Muslim youths into proscribed international terrorist
organisations to commit terrorist acts and that the activists of
PFI are indulging in activities prejudicial to the maintenance of
harmony by creating feeling of enmity between people of
different religions and groups through violent speeches,
publications, articles, social media posts etc. with the intention
to disrupt public tranquillity and have been seen to organize a
movement intending that the participants be trained to use
criminal force against people of other religions and groups so
&
as to cause fear and alarm besides creating a feeling of
insecurity among members of other religions and groups. It is
also stated in Annexure A2 order that in the last few years, the
said activists have been responsible for many violent incidents
and murders in Kerala which have created terror in the minds
of general public; that the activists are also indulging in
Unlawful Activities which are intended to cause disaffection
against India by inciting people and innocent Muslims to defy
the Government and Institutions established by law and are
thereby committing disruption of the sovereignty and integrity
of India and that the above activities attract Sections 120B and
153A of IPC as also Sections 13, 18, 18B, 38 and 39 of the
Unlawful Activities (Prevention) Act, 1967 (the UA(P) Act). It is
also stated in Annexure A2 order that the Central Government
is of the opinion that a Scheduled Offence under the NIA Act
has been committed and having regard to the gravity of the
offence and its repercussion on national security, it is required
to be investigated by the NIA in accordance with the NIA Act.
4. Pursuant to Annexure A2 order, the NIA
registered a case on 19.09.2022 as RC-02/2022/NIA/KOC
against the persons named in Annexure A2 order. Annexure A3
is the First Information Report in RC-02/2022/NIA/KOC. While
&
the investigation in RC-02/2022/NIA/KOC was progressing, the
Central Government issued Annexure A4 order invoking sub-
section (5) of Section 6 and Section 8 of the NIA Act in
continuation of Annexure A2 order directing the NIA to
investigate Crime No.318 of 2022 also, which was initially
registered at the Palakkad Town South Police Station relating to
the murder of the RSS/BJP activist Srinivasan by PFI activists. It
is stated in Annexure A4 order that the NIA forwarded a report
on 13.12.2022 stating that the said crime is an offence
connected to RC-02/2022/NIA/KOC of the NIA and it has come
to light that in both the cases, there is a larger conspiracy
hatched by the leaders of PFI whose involvement is noted by
the presence of senior leaders at Palakkad on the day of the
murder of Srinivasan where the conspiracy was hatched and
that therefore Crime No.318 of 2022 has grave national and
international ramifications which need to be thoroughly
investigated to unearth the wider conspiracy and to identify
the other accused.
5. In the light of Annexure A4 order, the
Superintendent of Police, NIA requested the High Court to
transfer the case records relating to S.C.No.982 of 2022
pending before the Additional Sessions Court-I, Palakkad
&
relating to Crime No.318 of 2022 and the case records relating
to the committal proceedings namely, C.P Nos.41 of 2022 and
61 of 2022 to the Special Court for Trial of NIA Cases,
Ernakulam. As per Annexure A5 order, High Court allowed the
said request and transferred S.C. No.982 of 2022 and C.P.Nos.
41 of 2022 and 61 of 2022 to the Special Court for Trial of NIA
Cases, Ernakulam.
6. Thereupon, the NIA continued investigation in
Crime No.318 of 2022 also and submitted a consolidated final
report before the Special Court for Trial of NIA Cases,
Ernakulam in the said case as also in RC-02/2022/NIA/KOC
registered pursuant to Annexure A2 order. Annexure A6 is the
consolidated final report, and the same has been taken to file
by the Special Court for Trial of NIA Cases, Ernakulam as S.C.
No.2 of 2023.
7. The petitioners in the Criminal Miscellaneous
Case are some among the persons who were arrayed as
accused in the initial final report filed by the local police in
Crime No.318 of 2022. They seek in this proceedings, orders
quashing Annexure A3 First Information Report and all further
proceedings thereto including S.C.No.2 of 2023 pending before
the Special Court for Trial of NIA Cases, Ernakulam. The
&
petitioners in the writ petition (crl) are some among the
accused in RC-02/2022/NIA/KOC. They seek in the Criminal
Miscellaneous Case, orders quashing Annexures A2 and A4
orders of the Central Government, Annexure A3 First
Information Report, Annexure A5 order issued by the High
Court as also Annexure A6 consolidated final report. In
essence, the grievance of the petitioners in both the
proceedings pertain to Annexures A2 and A4 orders issued by
the Central Government and the consequential proceedings.
8. Heard Sri.S.Sreekumar, the learned Senior
Counsel for the petitioners in Crl.M.C.No.8198 of 2023,
Sri.Renjith B. Marar, the learned counsel for the petitioners in
W.P.(Crl.) No.1044 of 2023, Sri.Sasthamangalam S. Ajithkumar,
the learned Standing Counsel for the NIA, and
Sri.B.G.Harindranath, the learned counsel for the High Court.
9. In order to appreciate the arguments
advanced by the learned counsel for the petitioners in both the
matters, it is necessary to refer to Sections 6 and 8 of the NIA
Act, which read thus:
6. Investigation of Scheduled Offences.--(1) On receipt
of information and recording thereof under section 154 of the
Code relating to any Scheduled Offence the officer-in-charge
of the police station shall forward the report to the State
Government forthwith.
&
(2) On receipt of the report under sub-section (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 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.
(8) Where the Central Government is of the opinion
that a Schedule Offence has been committed at any place
&
outside India to which this Act extends, it may direct the
Agency to register the case and take up investigation as if
such offence has been committed in India.
(9) For the purposes of sub-section (8), the Special
Court at New Delhi shall have the jurisdiction.
xxxx xxxx xxxx
8. Power to investigate connected offences.--While
investigating any Scheduled Offence, the Agency may also
investigate any other offence which the accused is alleged to
have committed if the offence is connected with the
Scheduled Offence.
10. The learned Senior Counsel for the petitioners
in the criminal miscellaneous case submitted that under sub-
section (5) of Section 6 of the NIA Act, the Central Government
is empowered to direct the NIA to investigate only a pending
case and that the Central Government is empowered to direct
the NIA to register and investigate a case only under sub-
section (8) of Section 6 where the Central Government is of the
opinion that a Scheduled Offence has been committed at any
place outside India to which the NIA Act extends. The learned
Senior Counsel attempted to reinforce the said contention by
drawing our attention to the different phraseology used in sub-
sections (5) and (8) of Section 6. It was argued that while sub-
section (8) categorically uses the expression "to register the
case and take up investigation", such an expression is
&
conspicuously absent in sub-section (5) and the said sub-
section, on the other hand, only uses the expression "direct
the Agency to investigate the said offence". It was also pointed
out by the learned Senior Counsel that the Central Government
has the power to direct the NIA to investigate a pending case
under sub-section (4) of Section 6 also, but in order to exercise
the said power, there has to be a reference from the State
Government in terms of sub-section (2) of Section 6. In short,
according to the learned Senior Counsel, sub-section (5) of
Section 6 is only a provision which confers power on the
Central Government to order investigation of a pending case
by the NIA without there being a reference under sub-section
(2) of Section 6 and the said power cannot be exercised to
pass an order directing the NIA to register a new case and
investigate the same. The decision of the Apex Court in Naser
Bin Abu Bakr Yafai v. State of Maharashtra, (2022) 6 SCC
308 was placed by the learned Senior Counsel in support of his
argument with a caveat that though the said point did not
directly arise in the said case, the said decision, according to
him, would give an insight for resolving his contention. The
learned Senior Counsel has also relied on the decision of the
Apex Court in State of West Bengal v. Suvendu Adhikari,
&
2023 KHC 6736 for the said purpose. The learned Senior
Counsel has also submitted fairly that a contrary view has
been taken by the Madras High Court in Crl.A.No.98 of 2023
and connected cases, and the Rajasthan High Court in Habeas
Corpus Petition No.24 of 2023. According to the learned Senior
Counsel, the law on the point has not been correctly laid down
by the Madras High Court and the Rajasthan High Court in the
above referred cases.
11. The learned counsel for the petitioners in the
writ petition(crl) endorsed the arguments advanced by the
learned Senior Counsel for the petitioners in the criminal
miscellaneous case. In order to supplement the contention
raised by the learned Senior Counsel for the petitioners in the
criminal miscellaneous case, the learned counsel drew our
attention to sub-section (6) of Section 6 of the Act which
provides for transmission of relevant documents when a
direction is issued either under sub-section (4) or sub-section
(5) and contended based on sub-section (6) that had the
intention of the legislation been to confer power on the Central
Government to direct registration of a case, there would not
have been a provision at all for transmission of relevant
records in sub-section (6). In addition, it was also argued by
&
the learned counsel that the offence involved in Crime No.318
of 2022 cannot be treated as an offence connected to the
offence involved in Crime No.RC-02/2022/NIA/KOC. The
expression "connected with the Scheduled Offence", according
to the learned counsel, relates only to those offences which are
committed by the accused during the course of the transaction
pertaining to the commission of the Scheduled Offence. The
learned counsel drew support for the said proposition from
Section 14 of the NIA Act which provides that when trying any
offence, a Special Court may also try any other offence with
which the accused may, under the the Code of Criminal
Procedure (the Code) be charged, at the same trial if the
offence is connected with such other offence. In addition, it
was also argued by the learned counsel that Annexures A2 and
A4 orders issued by the Central Government are vitiated by
non-application of mind as it contains only generic allegations.
In addition, it was argued by the learned counsel that
Annexure A5 order issued by the High Court is non-est in the
eye of law inasmuch as the High Court cannot, on the
administrative side, transfer cases from one court to another,
and the said power is to be exercised by the High Court only on
the judicial side.
&
12. The learned Standing Counsel for the NIA
argued that going by the plain meaning of the words used in
sub-section (5) of Section 6 and the non-obstante clause
contained therein, the power of the Central Government to
direct the NIA to investigate a case cannot be doubted at all
and the only condition to be satisfied for the exercise of the
said power is the subjective satisfaction of the Central
Government that a Scheduled Offence which is required to be
investigated under this Act has been committed. It was
asserted by the learned Standing Counsel that the expression
"direct the Agency to investigate the said offence" includes
registration of a case. It was pointed out that without a
direction by the Central Government under sub-sections (4) or
(5) of Section 6 of the Act, the NIA cannot conduct
investigation and Annexure A4 is an order issued by the
Central Government directing the NIA to investigate Crime
No.318 of 2022. According to the learned Standing Counsel,
once the NIA is authorised to investigate a Scheduled Offence,
it is well within the powers of the NIA to investigate any other
offence also which the accused is alleged to have committed, if
the offence is connected with the Scheduled Offence. Placing
reliance on the proposal made by the NIA before the Central
&
Government seeking orders for transfer of Crime No.318 of
2022 for investigation by NIA, being an offence connected with
the Scheduled Offence involved in RC-02/2022/NIA/KOC and
the letter addressed by the District Police Chief to the Director
General of Prosecution on 13.12.2022, it was asserted by the
learned Standing Counsel that the offence involved in Crime
No.318 of 2022 is connected to the Scheduled Offence
involved in RC-02/2022/NIA/KOC.
13. Sri.B.G.Harindranath, the learned counsel for
the High Court contended that the High Court is certainly
empowered to issue orders for transfer of cases on the
administrative side as well and as such, Annexure A5 order is
perfectly in order. The learned counsel relied on the decisions
of the Apex Court in Ranbir Yadav v. State of Bihar, (1995)
4 SCC 392 and Kamlesh Kumar v. State of Jharkhand,
(2013) 15 SCC 460, in support of the said arguments.
Inasmuch as it was alleged by the petitioners in the writ
petition(crl) that Annexure A5 is only an order passed by the
Assistant Registrar of the High Court, it was pointed out by the
counsel that Annexure A5 is an order issued on behalf of the
High Court and not one issued by the Assistant Registrar.
14. We have examined the arguments advanced
&
by the learned counsel for the parties on either side.
15. The first and foremost question to be
considered is whether the power conferred on the Central
Government under sub-section (5) of Section 6 of the NIA Act
includes the power to direct investigation into a Scheduled
Offence after registering a case. At the outset, it has to be
mentioned that the said question has not been considered by
the Apex Court either in Naser Bin Abu Bakr Yafai or in
Suvendu Adhikari on which reliance was placed by the
learned Senior Counsel for the petitioners in the criminal
miscellaneous case. As noted, the crux of his arguments is that
while sub-section (8) of Section 6 categorically uses the
expression "to register the case and take up investigation",
such an expression is conspicuously absent in sub-section (5)
of Section 6 and the said sub-section, on the other hand, uses
only the expression "direct the agency to investigate the said
offence". In other words, it is in the light of the different
phraseology used in the said sub-sections, it was contended by
the learned Senior Counsel that sub-section (5) is intended
only to confer on the Central Government the power to direct
investigation of a pending case by the NIA, notwithstanding
the procedure prescribed for the same in terms of sub-sections
&
(1) to (3) of Section 6. The said argument was attempted to be
reinforced by the learned counsel for the petitioners in the writ
petition(crl) by placing reliance on the provision contained in
sub-section (6) of Section 6 dealing with transmission of the
relevant documents and records of the case, once an order is
passed by the Central Government either under sub-section (4)
or under sub-section (5) of Section 6. No doubt, sub-section (5)
is also intended to confer on the Central Government the
power to direct investigation of a pending case by the NIA,
notwithstanding the procedure prescribed for the same in
terms of sub-sections (1) to (3) of Section 6, but that does not
lead to the inference that the Central Government cannot
direct investigation of a Scheduled Offence which is yet to be
reported, after registering a case for the said purpose.
According to us, the argument put forward by the learned
counsel for the petitioners in both matters omits to take note
of the fact that the non-obstante clause contained in sub-
section (5) is not a non-obstante clause which overrides the
provisions contained in sub-sections (1) to (3) of Section 6
only, but it is a non-obstante clause which overrides all the
remaining provisions in Section 6 including sub-sections (6)
and (8) as well and the words "notwithstanding anything
&
contained in this section" must be given full effect [See
Vaishali Abhimanyu Joshi v. Nanasaheb Gopal Joshi,
(2017) 14 SCC 373]. In other words, the provision contained in
sub-section (5) has to be understood as an independent
provision. If sub-section (5) is understood as an independent
provision, the information, on the basis of which power under
that sub-section is exercised in respect of a Scheduled Offence,
shall be deemed to be information received by the Central
Government from other sources. It is profitable at this stage to
refer to the long title of the NIA Act. The long title of the NIA
Act reads thus:
"An Act to constitute an investigation agency at the national
level to investigate and prosecute offences affecting the
sovereignty, security and integrity of India, security of State,
friendly relations with foreign States and offences under Acts
enacted to implement international treaties, agreements,
conventions and resolutions of the United Nations, its
agencies and other international organisations and for
matters connected therewith or incidental thereto".
If the provision contained in sub-section (5) is understood
having regard to the very object of the legislation as explained
in its long title, there will not be any difficulty in understanding
sub-section (5) as a provision which confers power on the
Central Government to direct the NIA to investigate a
Scheduled Offence which is brought to the notice of the
&
Central Government on the opinion that the same is one
required to be investigated by the NIA, even if the offence in
respect of which no case has been registered, for criminal
investigation in terms of the provision contained in the Code
presupposes registration of a case, whichever be the
investigating agency. We are fortified in this view by the
provision contained in sub-section (3) of Section 3 of the NIA
Act also which provides that any officer of the NIA has all the
powers of an officer-in-charge of the police station and shall be
deemed to be an officer-in-charge of the police station
discharging the functions of such an officer within the limits of
the police station. Sub-section (3) of Section 3 reads thus:
(3) Any officer of the Agency of, or above, the rank of Sub-
Inspector may, subject to any orders which the Central
Government may make in this behalf, exercise throughout
India, any of the powers of the officer-in-charge of a police
station in the area in which he is present for the time being
and when so exercising such powers shall, subject to any such
orders as aforesaid, be deemed to be an officer-in-charge of a
police station discharging the functions of such an officer
within the limits of his station.
Since an officer of the NIA has been conferred with the powers
of an officer-in-charge of a police station, the power to register
an FIR under Section 154 of the Code is also deemed to have
been conferred on the officer of the NIA. We take this view also
for the reason that the materials indicate that in terms of a
&
notification issued by the State Government in exercise of the
power under clause (s) of Section 2 of the Code, read with
Section 5 of the Kerala Police Act, 2011, the Government of
Kerala declared with effect from 18.06.2013, the whole State of
Kerala as the area of jurisdiction of the police station of the NIA
functioning at Ernakulam in respect of the investigation of the
offences scheduled in the NIA Act for exercise of the powers
under the Code. Identical view has been expressed by the
Madras High Court as also the Rajasthan High Court on similar
matters in the cases pointed out by the learned Senior Counsel
for the petitioners in the criminal miscellaneous case, and we
are in respectful agreement with the view expressed by the
learned Judges in the said cases.
16. The next question is whether the offence
involved in Crime No.318 of 2022 can be said to be an offence
connected with the Scheduled Offence involved in RC-
02/2022/NIA/KOC, justifying investigation of the former case
also by the NIA in terms of the power conferred on it under
Section 8 of the Act. Section 8 of the Act reads thus:
"8. Power to investigate connected offences.--While
investigating any Scheduled Offence, the Agency may also
investigate any other offence which the accused is alleged to
have committed, if the offence is connected with the
Scheduled Offence."
&
As explicit from the section itself, what is provided therein is
only that while investigating any Scheduled Offence, the
Agency may also investigate any other offence which the
accused is alleged to have committed if the offence is
connected with the Scheduled Offence. Section 8 does not
mandate permission of the Central Government for conducting
such investigations. Be that as it may, Section 14 of the NIA
Act which empowers the Special Court in such cases to try and
convict the accused in the connected offence as well, is
intended to take care of situations where investigations are
conducted by the NIA in exercise of its power under Section 8
of the NIA Act and consolidated final reports are filed. A
conjoint reading of Sections 8 and 14, in the light of the object
of the NIA Act as contained in its long title and the remaining
provisions contained in the NIA Act, indicate to us that the
expression "connected with the scheduled offence" as
contained in Section 8 ought to be understood in a wider
perspective as an offence alleged to have been committed by
an accused involved in a Scheduled Offence which is being
investigated by the NIA and which has a bearing on the
Scheduled Offence committed by the accused.
17. Reverting to the facts, the materials indicate
&
that some of the accused in RC-02/2022/NIA/KOC are accused
in Crime No.318 of 2022 also. Further, the proposal submitted
by the NIA before the Central Government on 13.12.2022
indicates that during the investigation in RC-02/2022/NIA/KOC,
it was revealed that the organisation PFI and its leaders named
as accused therein have played a vital role in the conspiracy
and subsequent murder of Srinivasan, which is the subject
matter of Crime No.318 of 2022. It is in the light of the said
facts, the Central Government issued Annexure A4 order
directing the NIA to investigate Crime No.318 of 2022 as well,
in exercise of the power of the Central Government under sub-
section (5) of Section 6, in continuation to Annexure A2 order,
treating the offence involved in Crime No.318 of 2022 as an
offence connected to the Scheduled Offence involved in RC-
02/2022/NIA/KOC. We are unable to find in the above factual
background that the offence involved in Crime No.318 of 2022
cannot be considered as an offence connected to the
Scheduled Offence involved in RC-02/2022/NIA/KOC. The
question is answered against the petitioners in the writ
petition.
18. The next question is whether Annexures A2
and A4 orders issued by the Central Government in exercise of
&
the power conferred on it under sub-section (5) of Section 6 is
vitiated due to non-application of mind. According to the
petitioners in the writ petition, the said orders of the Central
Government only reveal generic allegations of association with
an organisation. We do not agree. Inasmuch as investigations
undertaken pursuant to the said orders disclosed commission
of scheduled offences and culminated in a final report in terms
of Section 173 of the Code, the petitioners in the writ petition
are not entitled to challenge the orders issued by the Central
Government on the ground aforesaid.
19. The last question is whether the High Court
has power to transfer cases pending before one court to
another in exercise of its administrative power. The question,
according to us, is no longer res integra. In Ranbir Yadav, it
was held by the Apex Court that so long as power can be, and
is exercised purely for administrative exigency without
impinging upon and prejudicially affecting the rights or
interests of the parties to any judicial proceeding, there is no
reason why the administrative powers must yield place to
judicial powers simply because in a given circumstance they
coexist. The said decision has been followed by the Apex Court
in Kamlesh Kumar. Paragraphs 21 and 22 of the judgment in
&
Kamlesh Kumar read thus:
"21. The High Court does have the power to transfer the cases
and appeals under Section 407 CrPC which is essentially a
judicial power. Section 407(1)(c) CrPC lays down that, where it
will tend to the general convenience of the parties or witnesses,
or where it was expedient for the ends of justice, the High Court
could transfer such a case for trial to a Court of Session. That
does not mean that the High Court cannot transfer cases by
exercising its administrative power of superintendence which is
available to it under Article 227 of the Constitution of India. While
repelling the objection to the exercise of this power, this Court
observed in para 13 of Ranbir Yadav [Ranbir Yadav v. State of
Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728] as follows: (SCC p.
400)
"13. We are unable to share the above view of Mr
Jethmalani. So long as power can be and is exercised
purely for administrative exigency without impinging upon
and prejudicially affecting the rights or interests of the
parties to any judicial proceeding we do not find any
reason to hold that administrative powers must yield place
to judicial powers simply because in a given circumstance
they coexist."
22. For the reasons stated above, there is no substance in the
objections raised by the petitioners. The High Court has looked
into Section 407 CrPC, referred to Articles 227 and 235 of the
Constitution of India, and thereafter in its impugned judgment
[Kamlesh Kumar v. State of Jharkhand, WP (Cri) No. 95 of 2003,
decided on 19-7-2012 (Jhar)] has observed as follows:
"Having perused Section 407 CrPC and Articles 227 and
235, I have no hesitation to hold that this Court either on the
administrative side or in the judicial side has absolute
jurisdiction to transfer any criminal cases pending before
one competent court to be heard and decided by another
court within the jurisdiction of this Court. This Court in its
administrative power can issue direction that cases of
&
particular nature shall be heard by particular court having
jurisdiction."
In view of what is stated earlier, we have no reason to take a
view different from the one taken by the High Court. Both the
special leave petitions (criminal) are, therefore, dismissed."
The challenge against Annexure A5 decision of the High Court,
therefore, fails.
In the light of the discussion aforesaid, the criminal
miscellaneous case and the writ petition(crl) are devoid of
merits and are accordingly dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
ds 22.11.2023
&
APPENDIX OF WP(CRL.) 1044/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE FIR IN RC 2/2022
/NIA/KOC DATED 19/9/2022
Exhibit P2 TRUE COPY OF THE ORDER DATED 16/9/2022
ISSUED BY SECRETARY TO THE GOVERNMENT
OF INDIA, MINISTRY OF HOME AFFAIRS
CTCR DIVISION
Exhibit P3 TRUE COPY OF THE ORDER DATED
19/12/2022 ISSUED BY 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE RELEVANT PORTION OF
FINAL REPORT IN CRIME NO 318 / 2022 OF
THE PALAKKAD TOWN SOUTH POLICE STATION
Exhibit P5 TRUE COPY OF THE ORDER DATED 23/1/2023
ISSUED BY THE ASSISTANT REGISTRAR HIGH
COURT OF KERALA
Exhibit P6 TRUE COPY OF THE FINAL REPORT IN RC NO
2/2022/NIA/KOC NOW PENDING AS SC
NO.2/2023 BEFORE SPECIAL COURT FOR NIA
CASES, ERNAKULAM
RESPONDENT EXHIBITS
Exhibit R2 (a) The true copy of the order No.
11011/82/2022/NIA dated 16.09.2022 of
Government of India, Ministry of Home
Affairs, CTCR Division
Exhibit R2 (b) The true copy of the Gazette
notification SRO No. 487/2013 dated
13.5.2013 of Government of Kerala
Exhibit R2 (c) The copy of the report submitted by
NIA to the Ministry of Home Affairs,
Government of India dated 13.12.2022
showing that Crime No. 318/2022 of
Palakkad Town South PS
&
Exhibit R2 (d) The true copy of order No.
11011/82/2022/NIA (Part) dated
19.12.2022 of Government of India,
Ministry of Home Affairs, CTCR
Division
Exhibit R2 (e) The copy of the letter dated
30.11.2022 submitted by the District
Police Chief Palakkad.
Exhibit R2 (f) The copy of the legal opinion dated
14.12.2022 submitted by the Ld. Addl.
Director General of Prosecution
&
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE RELEVANT PORTION
OF FINAL REPORT DATED 13.07.2022 IN SC
NO.982/2022 ON THE FILES OF ADDITIONAL
SESSIONS COURT, PALAKKAD IN CRIME
NO.318/2022 OF PALAKKAD TOWN SOUTH
POLICE STATION
Annexure A2 THE TRUE COPY OF THE ORDER
NO.11011/82/2022-NIA DATED 16.09.2022
ISSUED BY THE MINISTRY OF HOME
AFFAIRS, CTCR DIVISION
Annexure A3 THE CERTIFIED COPY OF THE FIR DATED
19.09.2022 IN RC NO.2/2022 OF NATIONAL
INVESTIGATION AGENCY, KOCHI
Annexure A4 THE TRUE COPY OF THE ORDER
NO.11011/82/2022-NIA(PART) DATED
19.12.2022 ISSUED BY THE MINISTRY OF
HOME AFFAIRS, CTCR DIVISION
Annexure A5 THE TRUE COPY OF THE ORDER
NO.HCKL/4301/2022/DI-2 DATED
23.01.2023 ISSUED BY THE ASSISTANT
REGISTRAR, HIGH COURT OF KERALA
Annexure A6 THE TRUE COPY OF THE FINAL REPORT
DATED 17.03.2023 IN SC NO. 2 OF 2023
ON THE FILES OF SPECIAL COURT FOR THE
TRIAL OF NIA CASES, ERNAKULAM
RESPONDENT ANNEXURES
annexure R2(a) True copy of Govt. of Ministry of Home
Affairs, CTCR Division Order No.
11011/82/2022/NIA dated 16/09/2022 in
the above case
Annexure R2 (b) True copy of Gazette notification of
Govt. of Kerala SRO No. 487/2013 dated
13/05/2013
&
annexure R2(c) True copy of Government of India,
Ministry of Home Affairs CTCR
Division, order No.11011/82/2022/NIA
(part) dated 19/12/2022
