The Government of India does not have unbridled power under the NIA Act, 2008, to hand over investigation of cases of suspected terrorism in the states to the NIA and it must make an informed decision after ascertaining if offences amounting to terrorism under the Unlawful Activities Prevention Act, 1967, have occurred, the Karnataka High Court has stated.
The court made this observation in a 55-page order setting aside a December 7, 2016, decision of the Ministry of Home Affairs to hand over investigation into the murder of RSS leader R Rudresh in Bengaluru on October 16, 2016, by alleged activists of the Popular Front of India to the NIA.
A single-judge of Justice John Michael Cunha set aside the NIA probe on March 21 on a plea by the five accused in the case.
In its order, the court observed that the NIA seems to have played the role of an interested party in taking over investigations since it was involved in collecting information on the case from the Bengaluru police without the state government referring the matter to the MHA. “The impugned order smacks of arbitrariness and is issued in utter disregard of the requirements of Section 6(5) of the NIA Act. The order and the documents produced before the court do not disclose that the central government has applied its mind to the facts of the case,’’ the court observed.
The court found that though the MHA claimed to have handed over the murder probe to the NIA on the basis of a report provided by the Karnataka government, the actual takeover was done under clause 6 (5) of the NIA Act, which allows suo motu takeover.
“This is not an unbridled power conferred on the central government. The section empowers the central government to exercise suo motu powers only when it is of the opinion that a Scheduled Offence has been committed. Formation of opinion is a ‘sine qua non’ for exercise of suo motu powers under section 6(5) of the NIA Act,” the high court said in its final order.
The NIA had argued during the case that it took over investigations after receiving a letter from the police commissioner of Bengaluru stating the details of the case with the scheduled offences. “A bare perusal of the said communication reveals that it was addressed to the Inspector General (Policy), National Investigation Agency which again indicates that much before the order passed by the central government authorising the NIA to investigate into the alleged offences, the Inspector General (Policy) of NIA had already taken up the collection of information which again speaks of the interested role played by the NIA,’’ the court has observed.
The accused in the case – PFI leader Asim Shariff and others – had alleged that the MHA handed the probe of the case to the NIA without following procedure due to political pressure.
The MHA and NIA are expected move the Supreme Court against the high court order.