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2018 (3) TMI 1813
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....17 passed by the Hon'ble Single Judge in W.Ps. No. 7267-7270/2017 connected with W.P. No. 6005/2017, allowing the petitions in part and setting aside order dated 07.12.2016 passed by the Ministry of Home Affairs directing investigation by the National Investigation Agency. 4. For the sake of convenience, parties shall be referred to as per their status in the writ petitions. 5. Relevant facts of the case are, on 16.10.2016, a First Information Report (FIR), was registered in Crime No. 124/2016 with the Commercial Street Police Station, Bengaluru, for offences punishable under Sections 302 and 34 IPC. During investigation, police arrested accused No. 1 to 4. Based on their statements, accused No. 5 was arrested. 6. On 05.11.2016, police filed an application before the learned Magistrate to include Sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 ('UA Act' for short) and the learned Magistrate accepted the prayer. 7. By an order dated 07.12.2016, the Ministry of Home Affairs, Government of India, exercising power under Section 6(5) and Section 8 of National Investigation Agency Act ('NIA Act' for short) directed the Supe....
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....itor General, principally urged that, all actions taken by the executive with regard to national security are matters of policy and do not involve any question of law and therefore cannot be subject matter of judicial review. 14. Adverting to the facts, he submitted: that, Central Government had received information about registration of Crime No. 124/2016 in Commercial Street Police Station, Bengaluru for offences punishable under Sections 302 read with 34 of IPC; that, by a communication dated 24.11.2016, the Commissioner of Police, Bengaluru City, informed the National Investigating Agency about Crime No. 124/2016 and inclusion of Sections 15, 16, 17, 18 and 20 of the UA Act and Sections 109, 150, 153A, 120B, 201 IPC and Sections 3 & 27 of the Arms Act, 1957 by the State Police. 15. Having regard to the gravity of the offence, Central Government were of the opinion that the 'scheduled offences' were required to be investigated by the National Investigation Agency. Accordingly, Central Government, suo motu, directed the NIA to take up the investigation. 16. Shri Navadgi, further submitted that, an offences under the UA Act, are sch....
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.... his friends Rudresh, Harikrishna and Kumar were chatting in front of Srinivasa Medical Stores, Kamaraja Road, Shivajinagar, at about 12.40 p.m., two unknown persons came on a motor cycle from Commercial Street side and the pillion rider attacked and assaulted Rudresh, grievously on the right side of his neck with a 'machete' and the accused fled from the scene. The alleged weapon used was a conventional one. Therefore, there were no circumstances to label the incident as a 'terrorist act'. 23. He further contended that, the 'Popular Front of India', of which, one of the petitioners (Asim Shariff) is the District President, is a Social Organization registered under the Society's Registration Act. To achieve the objectives of the organization, only constitutional and democratic ways are employed by the members of the Institution. The organization, vehemently opposed the divisive agenda of communal forces and thus invites the irk of such divisive forces, which indulge in defaming petitioners' organization. 24. He further submitted that, inclusion of provisions of UA Act, is an attempt to malign the image of the organization. The scope and object ....
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....by the National Investigation Agency is provided in Chapter-III of the NIA Act. Section 6 confers power upon the Central Government to direct investigation of scheduled offences by the NIA. Section 6 of the NIA Act reads as follows:- "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 offe....
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....igation by the NIA. We may record that, the matter was considered at various levels of the Home Ministry and finally placed for consideration of the Minister of State (Home), as also the Union Home Minister. 34. The Hon'ble Single Judge, has set aside Home Ministry's Order by recording thus: "34. Though in the objection statement it is contended that the Central Government had called upon the State Government by letter dated 18.11.2016 to furnish information regarding the alleged offence, there is nothing to show that in response thereto, the State Government has supplied any information or produced any documents for consideration of the Central Government, which again goes to show that, the contention taken up by the Central Government that, it has based its decision on the report submitted by the State Government is false. ................" (emphasis supplied) 35. We may record that, the Central Government, in their Statement of Objections, have stated thus: "4. The Central Government vide letter dated 18.11.2016, requested the Government of Karnataka to furnish information about the case FIR No. 124/2016 in accordance with Section 6(2) of....
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....rocess is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security." (emphasis supplied) 13. The Privy Council in Zamora [(1916) 2 AC 77 (PC)], held as follows at AC p. 107: "... Those who are responsible for the national security must be the sole Judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public." (emphasis supplied) 14. According to Lord Cross in Crompton Alfred Amusement Machines v. Customs and Excise Commissioners (No. 2) [1974 AC 405 : (1973) 3 WLR 268 : (1973) 2 All ER 1169 (HL)] : (AC p. 434 F-G) "... In a case where the considerations for and against disclosure appear to be fairly evenly balanced the courts should, I think, uphold a claim to privilege on the grounds of public interest and trust to the head of the department concerned to do wh....
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.... India, in the case of Ex-Armymen's Protection Services Private Limited supra, has held that, National Security is not a question of law, but a matter of Executive's Judgment and policy. 42. It is also fairly well-settled that, doctrine of separation of power does not permit transgression of jurisdictions between the Legislature, the Executive and the Judiciary. We may hasten to add that, the Executive's decision may be called in question seeking judicial review. But judicial review is permissible strictly within well-defined parameters. We may usefully quote, the following summary of 'separation of powers' doctrine under the Constitution as recorded by the Hon'ble Supreme Court of India in the case of T.N. v. State of Kerala reported in (2014) 12 SCC 696. "126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution,....
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.... (iii) Procedural impropriety." 63. Reference may also be made to the decision of this Court in State of Punjab v. Gurdial Singh [ (1980) 2 SCC 471] where Krishna Iyer, J. noticed the limitations of judicial review and declared that the power vested in the superior courts ought to be exercised with great circumspection and that interference may be permissible only where the exercise of the power seems to have been vitiated or is otherwise void on well-established grounds. The Court observed: (SCC p. 475, para 8) "8. ... The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock jawed save where the power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset." 64. There is almost complete unanimity on the principle that judicial review is not so much concerned with the decision itself as much with the decision-making process. (See Chief Constable of the North Wales Police v. Evans [(1982) 1 WLR 1155 : (1982) 3 All ER ....
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....n the Executive, the power to direct NIA to take up investigation. Facts on record of the Ministry's file do not indicate that, the decision making process is faulty in any manner. 45. We may now deal with the objections raised by the Writ Petitioners with regard to maintainability of these appeals. Shri Shyamsunder, relied upon paragraph No. 45 of the judgment of the Hon'ble Supreme Court in the case of Ram Kishan Fauji supra, to contend that intra-court appeals are not maintainable. Paragraph No. 45, reads as follows: "45. The aforesaid argument suffers from a fundamental fallacy. It is because the submission is founded on the plinth of whether the writ jurisdiction has been exercised under Article 226 or 227 of the Constitution. It does not take note of the nature of jurisdiction and the relief sought. If the proceeding, nature and relief sought pertain to anything connected with criminal jurisdiction, intra-court appeal would not lie as the same is not provided in Clause 10 of the Letters Patent. Needless to emphasise, if an appeal in certain jurisdictions is not provided for, it cannot be conceived of. Therefore, the reliance placed upon the larger Bench au....