Sadiq Sarraf S/O Samer vs Union Of India
2023 Latest Caselaw 2255 Raj/2

[2023/RJJP/003197]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               D.B. Habeas Corpus Petition No. 24/2023

1.       Sadiq Sarraf S/o Samer, Aged About 54 Years, R/o PS
         Kotwali, Dist- Baran, Rajasthan
2.       Mohammad Asif S/o Late Ashfaq Mirza, Aged About 38
         Years, R/o Ritipada, Sangod, District- Kota, Rajasthan.
         Both Are Represented By Mohammed Shoeb S/o Sadiq
         Sarraf, Age About 29 Years, R/o PS Kotwali, Dist- Baran,
         Rajasthan (Since Petitioner No. 1 And 2 Are In Illegal
         Custody)
                                                                   ----Petitioners
                                    Versus
1.       Union Of India, By Under Secretary Ministry Of Home
         Affairs North Block, New Delhi, Rep By Addl. Solicitor
         General Office At High Court Complex Jaipur
2.       National Investigation Agency, New Delhi Represented By
         Special Counsel
                                                                 ----Respondents

For Petitioner(s)          :    Mr. Mohammad Tahir
For Respondent(s)          :    Mr. Tej Prakash Sharma



           HON'BLE MR. JUSTICE PANKAJ BHANDARI
              HON'BLE MR. JUSTICE BHUWAN GOYAL

                                     Order

RESERVED ON                              ::                        15/02/2023
PRONOUNCED ON                            ::                        21/02/2023

1. 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

[2023/RJJP/003197] (2 of 11) [HC-24/2023]

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 power conferred to the Union of India

is under union list of Entry No.8 i.e. Central Intelligence Bureau

and Investigation. It is also contended that the respondents have

misconceived their power under non-obstante clause under

Section 6(5) of the NIA Act, which only prevails over the

scheduled offences. It is further contended that only direction to

investigate can be given when an FIR is registered under Section

154 of Cr.P.C. and the National Investigating Agency had no

jurisdiction to register an FIR at Delhi. It is also argued that it is

only the State that can notify a Police Station under the provisions

of Cr.P.C. and the NIA had no jurisdiction to register an FIR at

Delhi.

[2023/RJJP/003197] (3 of 11) [HC-24/2023]

4. It is also argued by the counsel for the petitioners that

throughout the territory of India, FIRs in relation to offences under

the NIA Act are being registered at the Police Stations, which do

not have the power to register the FIR. My attention has been

drawn to the various documents where FIR has been registered by

such Police Stations. My attention has also been drawn to certain

notifications issued by the State Government for establishment of

NIA Police Station(s). Counsel for the petitioners has placed

reliance on Priyanka Srivastava & Ors. Versus State of U.P. &

Ors.: (2015) 4 AD(SC) 242, Pragyasingh Chandrapal Singh

Thakur Versus State of Maharashtra & Ors.: (2014) 1 BomCR

(Cri) 135 and Priyanka Srivastava & Ors. Versus State of UP &

Ors.: (2015) 6 SCC 287.

5. Reply to petition has been filed on behalf of the respondent -

Union of India. It is contended by the counsel for the respondent -

Union of India that the FIR has been registered at Police Station,

NIA, New Delhi and the petitioners without availing remedies have

preferred this Habeas Corpus Petition. If the petitioners are

aggrieved by the registration of the FIR, the proper course

available to them is to file a petition for quashing of the said FIR.

It is argued that after the arrest of the petitioners, they were

given remand by the Court and a judicial order has been passed

by the Court extending the judicial custody. The petitioners are

thus in judicial custody in accordance with the directions of the

Court and cannot be said to be in illegal detention so as to

exercise writ jurisdiction. It is also argued that the petitioners are

in judicial custody and under the supervision of the learned

[2023/RJJP/003197] (4 of 11) [HC-24/2023]

Special Judge, NIA, Jaipur and therefore, are not in illegal

detention of NIA.

6. It is contended that the NIA, Delhi, was declared as a Police

Station under Section 2(s) of the Cr.P.C. by a notification dated

27.09.2013 and the NIA being a Police Station was fully

empowered to register the FIR. The FIR was registered on

19.09.2022 in pursuance of the order of the competent authority

dated 16.09.2022. It is argued that the Central Government

directed the NIA to take up the investigation after applying mind

to the facts of the involvement of the petitioners and therefore,

the said order vide which directions were given to NIA to

investigate the case cannot be said to be in violation of the

provisions of the law. It is also argued that sub-section (3) of

Section 3 of the NIA Act provides that the Officers of the NIA shall

have all the powers, privilege and liability, which Police Officers

have in connection with the investigation of Officers specified in

Schedule under the Act.

7. We have considered the contentions raised by the counsel for

the parties and have carefully gone through the material on

record.

8. For the disposal of the present Habeas Corpus Petition, it will

be prudent to quote the relevant provisions which, have been

argued before us and therefore, the same are reproduced

hereinunder:

"Section-3 Constitution of National Investigation Agency-

[2023/RJJP/003197] (5 of 11) [HC-24/2023]

(1) Notwithstanding anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special agency to be called the National Investigation Agency for investigation and prosecution of offences under the Acts specified in the Schedule.

(2) Subject to any orders which the Central Government may make in this behalf, officers of the Agency shall have throughout India in relation to the investigation of Scheduled Offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein. (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- incharge of a police station discharging the functions of such an officer within the limits of his station. Section-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.

[2023/RJJP/003197] (6 of 11) [HC-24/2023]

(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. Section-41. When police may arrest without warrant.--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--

[(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person

[2023/RJJP/003197] (7 of 11) [HC-24/2023]

acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

[2023/RJJP/003197] (8 of 11) [HC-24/2023]

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]

9. The main crux of the arguments of the counsel for the

petitioners is that the NIA cannot register an FIR and it is only the

Police Station, which is authorized, that can register an FIR. From

perusal of Section 6 of the NIA Act, it is revealed that if a

scheduled offence is committed and an information is recorded

under Section 154 of Cr.P.C., the officer-in-charge of the police

station shall forward the report to the State Government. The

State Government shall then forward the report to the Central

Government and on receipt of the report by the Central

Government, Central Government shall within fifteen days from

the receipt of the report would consider that whether the

scheduled offence is made out and whether having regard to the

gravity of the offence, it is a fit case to be investigated by the

Agency and if it comes to the conclusion that it is required to be

investigated by the Agency, then they shall direct the Agency to

investigate the said offence. Sub-section (5), however, is a non-

obstante clause, which provides that notwithstanding anything

contained in this section, if the Central Government is of the

opinion that a Scheduled Offence has been committed which is

[2023/RJJP/003197] (9 of 11) [HC-24/2023]

required to be investigated under this Act, it may, suo-motu,

direct the Agency to investigate the said offence. Thus, the

requirement of registration of an FIR at the State level,

requirement of State informing the Central Government and

Central Government then directing the NIA is covered under this

non-obstante clause and the Central Government can suo-moto on

receipt of the information direct the NIA to investigate the aid

offence. If the Central Government has directed NIA to investigate

it ipso-facto enables the Agency with powers to arrest any person.

10. In the present case in hand, the Ministry of Home Affairs

vide order dated 16.09.2022 on receipt of information about

commission of a scheduled offence exercising the power conferred

under sub-section (5) of Section 6 read with Section 8 of the NIA

Act directed the National Investigating Agency to take up

investigation of the case. Thereupon, the NIA registered the case

under Section 154 of Cr.P.C. on 19.09.2022. Sub-section (1) of

Section 3 authorizes the Central Government to constitute the

special Agency to be called the National Investigating Agency for

investigation and prosecution of offences under the Act specified

in the Schedule. Sub-section (2) of Section 3 of the NIA Act

provides that the officers of the Agency shall have throughout

India, in relation to the investigation of Scheduled Offences and

arrest of persons concerned in such officers, all the powers,

duties, privileges and liabilities which police officers have in

connection with the investigation of offences committed therein.

Sub-section (3) of Section 3 of the NIA Act makes it clear that 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

[2023/RJJP/003197] (10 of 11) [HC-24/2023]

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-incharge of a police station discharging the functions of

such an officer within the limits of his station. Thus, an Officer of

the investigating Agency is treated at par with an officer-in-charge

of the police station and is authorized to register an FIR.

11. From perusal of the reply, it is evident that NIA, New Delhi

has been declared as a police station under Section 2(s) of the

Cr.P.C. by notification dated 27.09.2013 and NIA, New Delhi being

a police station and officers therein being officer-in-charge, a

police station is fully empowered to register the FIR. Thus, we are

of the considered view that the impugned direction of the Central

Government dated 16.09.2022 whereby it has directed the NIA to

take up investigation, cannot be said to be infringing the rights of

the petitioners and the registration of the FIR in pursuance of the

secret information received by the commission of the offence

under the NIA Act, cannot be said to be dehors the Act as the NIS,

New Delhi has been notified as a police station and the FIR has

been registered by the officer-in-charge of the Police Station, NIA

Delhi.

12. It is evident that after arrest in the aforesaid case, the

petitioners have been produced before the concerned Court and

have been remanded time and again by the Judicial Officer to

judicial custody. The custody of the petitioners is judicial custody

and is in no way an illegal custody. The constitutional validity of

the NIA Act was challenged before the Division Bench of the

[2023/RJJP/003197] (11 of 11) [HC-24/2023]

Bombay High Court in Pragyasingh Chandrapal Singh Thakur

Versus State of Maharashtra & Ors.(supra) wherein it was

subsequently upheld by the Division Bench. State of Haryana &

Ors. Versus Ch. Bhajan Lal & Ors.: (1992) AIR (SC) 605,

reliance on which has been placed by the counsel for the petitioner

was a case where SHO was not having valid legal authority to take

up the investigation and proceed with the same under the

Prevention of Corruption Act. In the present case in hand, the NIA,

Delhi has been notified by a police station and power to

investigate includes power to register an FIR. Since the Central

Government has directed the NIA to take up investigation, it

implies that taking up investigation includes the power to register

an FIR, as provided under the NIA Act and the judgment of Ch.

Bhajan Lal's case would have no applicability to the facts of the

present case.

13. Priyanka Srivastava & Ors. Versus State of U.P. & Ors.

(supra) was a case pertaining to SARFAESI Act and registration of

the FIR under Section 156(3) of Cr.P.C. The said judgment does

not have any applicability to the facts of the present case.

14. We are of the considered view that there is no illegality in

registering the FIR, in arrest of the petitioners and subsequent

custody of the present petitioners under judicial orders of the

Court. The custody of the petitioners cannot be said to be illegal

and hence, there is no force in the present Habeas Corpus Petition

and the same is accordingly dismissed.

15. Costs made easy.

(PANKAJ BHANDARI),J (BHUWAN GOYAL),J

SUNIL SOLANKI /PS

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