Irfan Pasha Vs. State by Commercial Street - Court Judgment

SooperKanoon Citationsooperkanoon.com/1194768
CourtKarnataka High Court
Decided OnMar-21-2017
Case NumberWP 7267/2017
JudgeJOHN MICHAEL CUNHA
AppellantIrfan Pasha
RespondentState by Commercial Street
Excerpt:
r in the high court of karnataka at bengaluru dated this the21t day of march2017before the hon’ble mr. justice john michael cunha writ petition nos.7267-7270/2017 (gm-res) writ petition no.6005/2017 (gm-res) c/w in w.p nos.7267-7270/2017 between:1. irfan pasha s/o late abdul majeed, aged abouot30years, represented by his wife ruhi naaz, aged about23years, w/o irfan pasha, r/at no827 4th cross, opp.indian medical, govindpura main road, arabic college post, bangalore-560045 2. waseem ahmed s/o mohammed nasserulla, aged about30years, represented by his wife suraiya sultana, aged about24years, w/o waseem ahmed, 2 r/at no.1209, b-32, bda flats, austin town, bangalore-560047 3. mohammed sadiq @ mazhar s/o late mohammed yusuff, aged about35years, represented by his wif zaiba tabassum, aged.....
Judgment:

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE21T DAY OF MARCH2017BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NOS.7267-7270/2017 (GM-RES) WRIT PETITION NO.6005/2017 (GM-RES) C/W IN W.P NOS.7267-7270/2017 BETWEEN:

1. IRFAN PASHA S/O LATE ABDUL MAJEED, AGED ABOUOT30YEARS, REPRESENTED BY HIS WIFE RUHI NAAZ, AGED ABOUT23YEARS, W/O IRFAN PASHA, R/AT NO827 4TH CROSS, OPP.INDIAN MEDICAL, GOVINDPURA MAIN ROAD, ARABIC COLLEGE POST, BANGALORE-560045 2. WASEEM AHMED S/O MOHAMMED NASSERULLA, AGED ABOUT30YEARS, REPRESENTED BY HIS WIFE SURAIYA SULTANA, AGED ABOUT24YEARS, W/O WASEEM AHMED, 2 R/AT NO.1209, B-32, BDA FLATS, AUSTIN TOWN, BANGALORE-560047 3. MOHAMMED SADIQ @ MAZHAR S/O LATE MOHAMMED YUSUFF, AGED ABOUT35YEARS, REPRESENTED BY HIS WIF ZAIBA TABASSUM, AGED ABOUT21YEARS, W/O MOHAMMED SADIQ @ MAZHAR, R/AT NO.21, 4TH CROSS, RAJAPUTRA PETE, HOSAKOTE, BANGALORE-562114 4. MOHAMMED MUJEEB ULLA @ MOULA S/O LATE SHAIKH AMEERJAN, AGED ABOUT45YEARS, REPRESENTED BY HIS WIFE, BASEERUNNISA, AGED ABOUT37YEARS, W/O MOHAMMED MUJEEBULLA, R/AT NO.66, 5TH MAIN, 5TH CROSS, GANGA NAGAR, R.T.NAGAR POST, BANGALORE-560032 ... PETITIONERS (By Sri: SHYAM SUNDAR M S, ADVOCATE.) AND1 STATE BY COMMERCIAL STREET POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX BUILDING, BANGALORE-560001 2.

3. 3 SECRETARY MINISTRY OF HOME AFFAIRS, INTERNAL SECURITY-I DIVISION, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110001 SUPERINTENDENT OF POLICE NATIONAL INVESTIGATION AGENCY, MHA GOVT OF INDIA, BEGUMPET, HYDERABAD, TELANGANA-500016 (By Sri: SANDESH J.CHOUTA, SPP-II FOR R1 SRI: PRABHULING. K.NAVADGI, ASG A/W SMT.M.BIRDY AIYAPPA, CAC FOR R2 SRI. C.H.JADHAV, SR.ADV A/W SRI. P.PRASANNA KUMAR, ADV FOR R3) ... RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE226AND227R/W SECTION482OF CRPC PRAYING TO SET ASIDE THE

ORDER

DTD:5.11.2016 OF LEARNED MAGISTRATE, 43RD ACMM COURT, BANGALORE EQUIPPING THE COMMERCIAL STREET POLICE TO ADD THE PROVISIONS / SECTION15 16, 17, 18 & 20 OF UNLAWFUL ACTIVITIES PREVENSION ACT1967IN THE THE FIR OF CRIME NO.124/2016 [VIDE ANNEXURE-D TO THE PETITION AND ETC. 4 IN W.P NO.6005/2017 BETWEEN: ASIM SHARIFF AGED ABOUT40YEARS, S/O LATE ANWER, R/AT NO.6/1, IST MAIN, S.K.GARDEN, BENSON TOWN, BANGALORE-46 ... PETITIONER (By Sri: SHYAM SUNDAR M S, ADVOCATE) AND1 STATE BY COMMERCIAL STREET POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX BUILDING, BANGALORE-560001 SECRETARY MINISTRY OF HOME AFFAIRS, INTERNAL SECURITY -I DIVISION, GOVERNMENT OF INDIA, NORTH BLOCK NEW DELHI-110001 SUPERINTENDENT OF POLICE NATIONAL INVESTIGATION AGENCY, MHA GOVT OF INDIA, BEGUMPET, HYDERABAD, TELANGANA-500016 2.

3. ... RESPONDENTS5(By Sri: SANDESH J.CHOUTA, SPP-II FOR R1 SRI: PRABHULING. K.NAVADGI, ASG A/W SMT.M.BIRDY AIYAPPA, CAC FOR R2 SRI. C.H.JADHAV, SR.ADV A/W SRI. P.PRASANNA KUMAR, ADV FOR R3) THIS W.P. IS FILED UNDER ARTICLE226AND227R/W SECTION482OF CRPC PRAYING TO SET ASIDE THE

ORDER

DTD:5.11.2016 OF LEARNED MAGISTRATE, 43RD ACMM COURT, BANGALORE EQUIPPING THE COMMERCIAL STREET POLICE TO ADD THE PROVISIONS / SECTIONS15 16, 17, 18 & 20 OF UNLAWFUL ACTIVITIES PREVENTION ACT1967IN THE FIR OF CRIME NO.124/2016 [VIDE ANNEXURE-D TO THE PETITION AND ETC. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDER

S ON0903.2017 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:- 6

ORDER

These petitions are filed under Articles 226 and 227 of the Constitution of India r/w. section 482 of Cr.P.C., for the following reliefs:- (a) to set aside the order dated 5.11.2016 of learned Magistrate, XLIII Addl. C.M.M. Court, Bengaluru equipping the Commercial Street Police to add the provisions/sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 in the FIR of Crime No.124/2016; (b) quash the impugned order/notification of the Center vide F.No.11011/33/2016-IS-IV taking up the matter of Crime No.124/2016 of Commercial Street Police Station, Bengaluru under political references and referring the same for investigation by the NIA and quash the Second FIR in RC- 04/2016-17 registered by the NIA for the offences under sections 109, 120(b), 201, 150, 153A, 302 r/w. 34 of Indian Penal Code and under sections 15, 16, 17, 18 & 20 of Unlawful 7 Activities (Prevention) Act 1967 and usurping the case in Crime No.124/2017; and c) to set-aside the order of the Special Court dated 24th January 2017 extending the minimum investigation period to 180 days in Crime No.RC-4/2016-17.

2. Brief facts essential for the disposal of the petitions are as follows: On 16.10.2016, “ patha sanchalan” programme of RSS was held at RBNMS ground, Bengaluru. After the “patha sanchalan”, at about 12.40 p.m., the deceased Rudresh along with his friends Jayaram, Harikrishna and Kumar were standing near Srinivas Medical Stores at K.Kamaraja Road, Shivajinagar. At that time, two unknown persons came from Commercial Street side in a two-wheeler and when they reached near the deceased Rudresh – the pillion rider forcibly struck on the left side of the neck of the aforesaid Rudresh with a “macchu” (ripper) and sped away. The deceased was immediately taken to Bowring Hospital in an autorickshaw. But, on examination, he 8 was declared “brought dead”. Sri.Jayaram –the friend of the deceased who was an eye-witness to the incident, lodged the first information before the Police Inspector, Commercial Street Police Station, Bengaluru City at 2.45 p.m. and based on the said report, Crime No.124/2016 was registered against two unknown persons for the offences punishable under sections 302 r/w. section 34 of Indian Penal Code.

3. During the course of investigation, first respondent – Police arrested accused Nos.1 to 4 (petitioners in W.P.Nos.7267- 7270/ 2017) on 27.10.2016 and they were remanded to police custody. Based on the voluntary statement of the petitioners, the first respondent – Police arrested accused No.5 (W.P.No.6005/2017) and he was also remanded to judicial custody.

4. On 5.11.2016, the first respondent –Police filed a requisition before the XLIII Addl. C.M.M., at Bengaluru seeking to include sections 15, 16, 17, 18 and 20 of the Unlawful 9 Activities (Prevention) Act, 1967 (“UA(P) Act, 1967” for short) in the F.I.R. and to proceed with the investigation. Learned Magistrate permitted the respondent No.1 to include the above penal provisions and to proceed with the investigation. That being the case, respondent No.2 –Secretary, Ministry of Home Affairs, New Delhi, passed an order dated 7.12.2016 bearing No.F.No.11011/33/2016-IS-IV in exercise of powers conferred under section 6(5) r/w. section 8 of the National Investigation Agency Act, 2008 directing the National Investigation Agency, Hyderabad, Telangana to take up the investigation of the aforementioned case. Accordingly, the third respondent – Superintendent of Police, National Investigation Agency, MHA Government of India, Begumpet, Hyderabad, Telangana registered F.I.R. No.4 against unknown male persons as per the complaint or the information lodged by Sri.Jayaram under sections 3 and 27 of Arms Act and sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. 10 5. According to the petitioners, they are totally aggrieved by the act of the respondents namely Commercial Street Police getting added the provisions/sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 in the FIR of Crime No.124/2016; Center taking up the matter under political references and referring the same for investigation by the NIA and the subsequent order of the Special Court dated 24.1.2017 extending the minimum investigation period to 180 days.

6. In the petitions, it is contended that the petitioners are falsely implicated in the alleged case. Petitioner in W.P.No.6005/2017 is the District President of Popular Front of India, which is a social organization registered under the Societies Registration Act having Karnataka State Head Office in Bengaluru and he never involved in any anti-social and anti- national activity. It is contended that the inclusion of the provisions of draconian law i.e., UA(P) Act, 1967 is an attempt to malign the image of the organization and to increase the 11 suffering of the accused persons. It is also contended that the petitioner/accused did not make any disclosure during the investigation that they are involved in any crime or conspiracy which has ingredients of UA(P) Act, 1967 and the said provisions are sought to be added relying on some criminal incidents which have happened way back in 2009 and 2010 in Mysuru district and further it is contended that in the visible background of the case, there is nothing to suggest that the entire incident had any component of a terrorist act. It is per se a criminal act as the alleged weapon used was a conventional weapon intended to eliminate deceased person only and it cannot be equated to a terrorist act against the security and sovereignty of the State. It is contended that since the deceased was a RSS worker, wide protests were held across the State; the media had given it a colour of “communal killing” which has resulted in Commercial Street Police adding the provisions of UA(P) Act, 1967 by labeling it as an act of terrorism. 12 7. It is further contended that the second respondent has passed a suo motu order without relying on the report of the jurisdictional police or State Government and has entrusted the matter to the NIA without following due procedure. It is stated that assigning the case of a local murder to such an agency is nothing but arbitrary use of executive power under political pressure which is against the mandate of Article 20 of the Constitution of India and it will grossly change the perspective of entire case in the event the accused are seen under different prism and treated as criminals against sovereignty of State which makes very difficult for them to receive any intermediary relief. It is contended that the impugned order passed by the court below in extending the minimum term of investigation to 180 days is without any basis and reveals the premonitions suffered by the lower judiciary due to the misleading act of the respondents and the prosecution. It is further contended that the order passed by the learned Magistrate in this regard is bad in law and has impinged on the life and liberty of the petitioners. 13 The registration of the second F.I.R. by the NIA in respect of the same crime is also illegal. Hence, the petitioners have sought for appropriate reliefs in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India and section 482 of Cr.P.C.

8. On behalf of respondent No.1 – State, statement of objections is filed inter alia denying the various averments made in the petitions. In the objection statement, it is stated that the Investigating Officer who was then investigating the case in Cr.No.124/2016 of the Commercial Street Police Station, Bengaluru, submitted a detailed report before the learned ACMM, Bengaluru, stating the leads available from the investigation carried out till date indicated the circumstances which warranted invoking the investigation under the provisions of the UA(P) Act, 1967 and the Magistrate, on being satisfied with the cause shown by the Investigating officer, was pleased to allow the said Application. The writ petition does not disclose any grounds on facts or on law which invites exercise of extraordinary 14 jurisdiction under Articles 226 and 227 of the Constitution of India and under Section 482 of the Cr.P.C. It is stated that the A.C.P. after taking over the investigation, traced the accused Nos.1 to 4 on 27.10.2016 and based on their voluntary statements, accused No.5 was arrested and the voluntary statements would disclose various offences under the UA(P) Act, 1967. It is further stated that the investigation discloses that the accused were Members of certain Organization and were parties to the criminal conspiracy, which resulted in the act of the accused in assaulting the deceased was with a view to affect the unity, integrity and security of the Country. It is further stated that the call records of the various Mobile Phones used by the accused would disclose calls made to various Organizations extended beyond the boundaries of the State of Karnataka which pointed out a deep conspiracy that had a direct bearing in causing harm to the integrity of the Nation. The investigation would reveal that the act committed was a terrorist act aimed against a particular community. Further, the investigation also 15 revealed that the act was founded on a systematically planned operation which was similar to certain strikes done in other States against the Members of the Organizations of a particular community. The Investigation would also disclose the preparatory training taken by the assailants to ensure that the attack had the desired effect. The investigation reveals interstate contact of accused No.1 with others who are located in other terror affected states. It is on the basis of such information gathered during the investigation that Respondent No.1 had filed a report on 05.11.2016 before the 43rd ACMM, Bengaluru seeking permission to add certain provisions of the Unlawful Activities (Prevention) Act, 1967 for the purpose of carrying on investigation.

9. It is further stated that during investigation, the statements of relevant witnesses were recorded and the Investigating Agency has also sent certain articles to FSL and sought for certain details of the Bank Account from various Banks. Meanwhile on 08.11.2016, the Central Government 16 requested the first respondent to furnish information about the case which the first respondent has duly submitted. Subsequently, by an order dated 07.12.2016, the Central Government by exercising suo-motu powers under Section 6(5) of the National Investigation Agency Act, 2008 has directed the N.I.A. to take up the investigation of the aforesaid case and hence, on 31.12.2016 all the original investigation papers were handed over to N.I.A. under acknowledgment. In the objection statement, it is stated that the act committed by the respondent would come within the definition of terrorist act punishable under the UA(P) Act and therefore, the method of investigation cannot be found fault with and thus, the respondent No.1 prayed for dismissal of the petitions.

10. The respondent No.2 – Under Secretary to Government of India, New Delhi, has filed statement of objections denying the various statements made in the petitions. It is stated that the Central Government received information that the initial investigation of the case revealed involvement of 17 the activists of Popular Front of India (PFI) in the crime and criminal conspiracy to commit the crime. The PFI had also been allegedly involved in a similar incident relating to brutal daylight hand chopping and attempted murder of a Professor T.J.Joseph in Kerala, which was aimed at striking terror in the minds of common man. It is stated that keeping in view the gravity of the offence, the Central Government had entrusted the said case to NIA for investigation on 09.03.2011 in accordance with section 6(5) of the NIA Act 2008. The trial court has convicted 13 accused in this case. Further a case relating to organization of terrorist camp by the persons belonging to PFI/SDPI in Kannur District of Kerala to impart training to the youth by using explosives and weapons had also been entrusted to the NIA on 24.07.2013 in accordance with section 6(4) of the NIA Act and the trial court has convicted 21 accused in this case. It is stated, 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 the 18 NIA Act, 2008. The Commissioner of Police Bangalore City vide his letter No.Addl.CP/CRM/CC/14416 dated 24.11.2016 confirmed invocation of Sections 15, 16, 17, 18 & 20 of UA(P) Act in this case. Based on the report of the Government of Karnataka and information received from other sources, the Central Government was of the opinion that Scheduled Offence has been committed, and keeping in view the gravity of the offence, the Central Government directed the NIA in accordance with section 6(5) of the NIA Act, 2008 to take up the investigation of the said case. It is stated that the alleged act of the petitioner and other accused affects the sovereignty, security and integrity of India. The petitioners are parties to a group which has a calculated design to disrupt the communal harmony in the society thereby threatening the very sovereignty and integrity of the nation. Therefore, the Central Government after due consideration and examination of the issues was of the opinion that Scheduled Offence has been committed which required investigation by the NIA under the National 19 Investigation Agency Act 2008 and directed the NIA to take up investigation of the case. The challenge laid by the Petitioner to the order passed by the Special Court dated 24.01.2016 is hit by Section 21 of the National Investigation Agency Act 2008 as there is a statutory bar in filing an appeal or revision against an interlocutory order of a Special Court. What cannot be challenged directly cannot be sought to be challenged indirectly by invoking Articles 226 & 227 of the Constitution and Section 482 of the Cr.P.C.

11. The third respondent has also filed the written statement of objection in line with the statement of respondent No.2 contending that the MHA issued notification as per section 6(5) of the NIA Act, 2008, and, further, in compliance with the instructions of the Central Government, the NIA re-registered the case, as NIA case no.RC-04/2016/NIA/HYD and took up the investigation. It is stated that this is not the registration of a second FIR by the NIA, but only re-registration of the original 20 FIR complaint, registered at the Commercial Street Police Station, with a new book No.of the NIA Police Station at Hyderabad. It is stated that in view of the specific bar contained under Section 21(1) and Section 21(3) of the NIA Act, 2008, prohibiting filing of any appeal or revision against an order, including an interlocutory order, the present petition filed by the petitioner, challenging the orders dated 24.01.2017, of the NIA Special Court which is an interlocutory order in nature, by invoking Section 482 of the CrPC, 1973, is not maintainable as per law. It is further stated that the allegations that the Central Government acted with unwarranted haste and political references, are absolutely baseless and false and strongly denied. The earlier Investigating Officer had already invoked the scheduled offences under the UA(P) Act, 1967, for investigation, on 05.11.2016, and the Central Government, entrusted the investigation of the case to the NIA by its order dated, 07.12.2016, more than one month after the invoking of the offences under the UA(P) Act, 1967, by the local police, after 21 considering all the facts and circumstances of the case. The offences under the UA(P) Act, 1967, were invoked for investigation, on 05.01.2016, by the Karnataka State Police and it has not been challenged by the accused, so far. It is also stated that the averments made in Para 10, are strongly denied in toto. In the state of kerala, 13 accused persons who are members of the PFI/SDPI organization, were convicted by Special Court on conclusion of trial in the NIA Case No.RC- 01/2011/NIA/DLI (SC-1/2013). It is further stated that similarly in another case investigated by the NIA vide case No.RC- 05/2013/NIA/KOC, the NIA Special Court at Ernakulam has convicted 21 members, owing allegiance to the PFI/SDPI, for offences relating to criminal conspiracy as well as the Explosive Substances Act and Arms Act, for organizing a training camp and imparting training in handling of explosive substances and lethal arms, at a secret location in the Kannur district of Kerala, on 24.03.2013. The objective and scope of the NIA Act, 2008, also applies to any individual person and even to a terrorist gang, 22 that may not be listed in the list of proscribed terrorist organizations, listed in the Schedule to the UA(P) Act, 1967. It is stated that, only on being satisfied that the ingredients of crime as defined under section 15 of the UA(P) Act, 1967, as also other crimes under the said act, exist in this case, the same were invoked for investigation in the instant case by the Karnataka Police. It is further stated that the Central Government has acted purely on legal basis and re-registration of the FIR by the NIA, does not make it a second FIR, but just a Re-Registration document, informing the concerned court that the NIA has taken up investigation into the case. It is submitted that the Hon’ble Apex Court has time and again held that, when the matter is at initial stage of investigation, the same cannot be quashed.

12. I have heard the learned counsel appearing for the parties at length and have carefully scrutinized the pleadings and the documents filed by the parties. 23 13. The learned Addl. Solicitor General appearing for respondent No.2 has submitted a sealed cover containing two files. One file contains only two sheets with notings and the second file contains the recommendation of the Inspector General (Police) N.I.A. and copies of the records which are the part of the documents produced before this Court either by the petitioners or respondents.

14. In the light of the submissions made in the course of the arguments and the contentions urged in the pleadings, the points that arise for consideration are as follows:- (1) Whether the invocation of the provisions of UA(P) Act against the petitioners is justified in the fact situation of the case?. (2) Whether the entrustment of the investigation to the NIA is arbitrary and contrary to the provisions of the National Investigation Agency Act, 2008?. (3) Whether the Special Court was justified in extending the period of investigation upto 180 days?. I. 24 ADDITION OF OFFENCES UNDER THE UA(P) ACT, 1967 15. The first and the principal grievance raised by the petitioners is that the addition of the provisions of the UA(P) Act in respect of an ordinary act of murder treating it as “terrorist act” is wholly illegal, unjust, unwarranted and violative of the fundamental rights and liberties of the petitioners and that the petitioners have been denied fair treatment by the investigating agency. The main plank of the argument of the learned counsel for the petitioners is that unless the facts constituting the offences under the provisions of the UA(P) Act, 1967 existed on the date of making the application, there was absolutely no basis for the A.C.P., the Investigating officer, to make an application to the Special Court for inclusion of sections 15, 16, 17, 18 and 20 of the UA(P) Act, 1967. Elaborating on this point, the learned counsel submitted that a reading of the application made to the Magistrate manifests that except the allegation that in their voluntary statement, the accused disclosed that they were members of Popular Front of India, there was no other material 25 whatsoever in support of the requisition for inclusion of the provisions of UA(P) Act, 1967. Undisputedly, the Popular Front of India is not a banned organization. The said organization is not branded as a terrorist organization nor has it been included in the First Schedule to the UA(P) Act, 1967. Learned counsel has elaborately referred to the provisions contained in Chapter II of the UA(P) Act, 1967 under the heading “Unlawful Associations” which require the procedure to be followed for declaration of an Association as an Unlawful Association. In the case in hand, there being absolutely no material to show that the Organization to which accused are alleged to have belonged is an Unlawful Organization, merely on the ground that the accused have volunteered in their statement to state that they were the members of the said Association, could not have been made the basis to seek inclusion of the offences under the provisions of the UA(P) Act. In support of this contention, learned counsel has referred to the relevant observations of the Hon’ble Supreme Court in the case of HITENDRA VISHNU THAKUR vs. STATE26OF MAHARASHTRA reported in AIR1994SC2623wherein it is observed in the context of TADA, as under : “Even though the crime committed by a ‘terrorist and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by section 3(1) of the Act by use of such weapons as have been enumerated in section 3(1) and which cause or are likely to result in the offences as mentioned in the said section.” (underlining supplied) 16. Drawing analogy from the said observation, learned counsel has built up his argument, based on the expression 27 “terrorist act” as defined in section 15 of the UA(P) Act, 1967. It reads as under:

15. TERRORIST ACT- (1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security]. or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,- or substances (a) by using bombs, dynamite or other explosive inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause- (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit India 28 paper currency, coin or of any other material; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government State Government or the Government of a foreign country or [an international or inter-governmental organization or any other person to do or abstain from doing any act; or]., India, of any commits a terrorist act. [Explanation – For the purpose of this sub- section, - (a) means functionary” the “public constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; 29 (b) after by “high quality counterfeit Indian currency” means the counterfeit currency as may be declared an authorized or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule].. examination [(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.].

17. It is the submission of the learned counsel that the essential ingredients to constitute a “terrorist act” are that there should be (i) an act committed with an intention to cause threat or likely to cause threat to the unity, integrity, security or sovereignty of India or with an intent to strike terror or likely to strike terror in people or any section of the people in the country. (ii) Secondly, there should be use of the explosive substances, firearms or lethal weapons with the above said intent in order to cause death or likely to cause death or injury to person or loss or damage or destruction of property. In the instant case, there are no allegations of use of any explosives or 30 lethal weapons, no loss or destruction to any private or public property. The complained act is nothing more than an ordinary criminal activity, like any other ordinary murder punishable under the provisions of the general law which cannot be classified as law and order disturbances or intended to strike terror in the minds of general public. Referring to PULIN DAS @ PANNA KOCH vs. STATE OF ASSAM reported in (2008) 5 SCC.89 learned counsel emphasized that; “the Activity which is sought to be punished under section 3(1) of TADA has to be such, which cannot be classified as a mere law and order problem or disturbance of public order or disturbance of even tempo of the life of the community of any specified locality, but should be of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies, because the intended extent and reach of the criminal activity of the terrorist is such, which travels beyond gravity of the mere disturbance of public order even of a virulent nature and may at times transcend the frontiers of the locality and may include such anti 31 national activities, which throw a challenge to the very integrity and sovereignty of the country in its democratic polity….” 18. To buttress this argument, learned counsel referred to the statement of objects and reasons for promulgating UA(P) Act, 1967 and submitted that in the in the instant case, except alleging that the accused were suspected to be the Members of the Popular Front of India, there is no material whatsoever to show that the murder of Rudresh was committed with an intention to strike terror in the minds of sections of society or that any lethal weapon was used for the commission of such offence. Learned counsel points out that the State Agency had not even invoked the provisions of the Arms Act at the time of registration of FIR which is indicative of the fact that the incident had no trapping of a terrorist act and it is only after taking over the case by the N.I.A., the provisions of the Arms Act are included which again indicates that stringent offences are 32 sought to be made out only after taking over the investigation by the N.I.A.

19. Learned SPP-II appearing for respondent No.1 State would however maintain that in the course of the investigation the investigating agency having found that the petitioners were active members of the Popular Front of India having wide connections with terrorist organizations and had committed the offence under investigation, with a view to affect the unity, integrity and security of the country, there was necessity to in investigate into the ramifications of the offences. It is the submission of the learned counsel that the evidence collected by the investigating agency having prima facie disclosed the involvement of the petitioners in the conspiracy to commit the offences which fall within the provisions of the UA(P) Act, the investigating agency was within its power to incorporate the said provisions in the F.I.R. It is the submission of the learned SPP-II that as a matter of fact there was no necessity for the Investigating Officer to seek permission of the Court or the 33 Magistrate to incorporate the provisions of law, if the evidence pointed out the commission of the offences under the provisions of UA(P) Act and therefore, there is no illegality whatsoever either in the application filed by the Investigating Officer seeking permission for inclusion of the said offences or continuing with the investigation into the offences under the provisions of UA(P) Act.

20. Learned Senior Counsel appearing for respondent No.3 has placed reliance on the ratio laid down by the Hon’ble Supreme Court of India in the case of DINUBHAI BOGHABHAI SOLANKI vs. STATE OF GUJARAT & Others reported in (2014) 4 SCC626to contend that, “the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the code, the accused had no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing of a final report under section 173(2) of the Code or in a proceedings 34 instituted otherwise than on a police report till the process is issued under section 204 of the Code, as the case may be.” Learned Senior Counsel has also referred to the decision in CENTRAL BUREAU OF INVESTIGATION & Another vs. RAJESH GANDHI & Another reported in (1996) 11 SCC253– wherein the above position is reiterated as under: “There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with.” 21. In the instant case, the issue involved is not with regard to the choice of the agency which should have conducted the investigation rather the grievance of the petitioners is that the inclusion of the offences under the provisions of the UA(P) Act, 1967 are without any basis and are ex facie abuse of the process of the court. The thrust of the argument of the learned 35 counsel for the petitioners is that the material collected by the State Investigating Agency did not make out any of the offences under the provisions of the said Act much less a “ terrorist act” and therefore, there was no need or occasion for the Investigating Officer to approach the learned Magistrate with a prayer seeking permission to investigate into these offences.

22. The question whether the offences alleged against the petitioners fall within the definition of “culpable homicide” punishable under section 302 of Indian Penal Code or whether it amounts to “terrorist act” within the meaning of section 15 of the UA(P) Act, 1967 cannot be decided at this stage. The Police Officer (A.C.P.) conducting the investigation having found that the investigation carried out by him indicated the circumstances warranting invoking the provisions of UA(P) Act, 1967, the court cannot thwart the investigation on the purported plea that the acts alleged against the petitioners do not attract the ingredients of the offences under UA(P) Act, 1967. No doubt, it is true that except contending that the petitioners are the members of the 36 Popular Front of India, and have been engaged in conspiracy with other terrorist organizations, the respondents have not referred to any definite and clear evidence pointing out the alleged conspiracy. The consequences of the acts attributed to the petitioners do not per se fall within the definition of “terrorist act”. Yet it is not proper for the court to draw an inference of intention from the mere consequence that is the victim belonged to RSS Organization.

23. Merely because the petitioners are members of Popular Front of India, it cannot be assumed that the petitioners had a proclivity to commit terrorist act when it is an undeniable fact that the said organization is not declared as unlawful association or that it has been included in the schedule appended to the Act. Under the said circumstances, the apprehension voiced by the petitioners appears to be well founded. Yet the first respondent having disclosed the circumstances and the basis on which the Investigating Officer 37 has arrived at the opinion to include the offences under sections 15, 16, 17, 18 and 20 of the UA(P) Act, 1967, this court cannot substitute its reasons to stifle the investigation and prejudge the issue without providing an opportunity to the State to collect necessary evidence in proof of the alleged charges. “The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material.” As long as the investigation is not shown to be false and baseless or an abuse of the powers of the police, the inherent power under section 482 cannot be exercised.

24. In POOJA PAL vs. UNION OF INDIA reported in 2016 (3) SCC135 the Hon’ble Supreme Court has held as under:- 38 86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective not fair, it would be the solemn obligation of the courts, if considered necessary, to orders further investigation or reinvestigation as the case may be, discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated 39 dominantly by the predication of advancement of the cause of justice.

25. In MANOHAR LAL SHARMA vs. PRINCIPAL SECRETARY reported in AIR2014SC666 it is held as under:- 29. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The Courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the Court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer 40 or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the Court may intervene to protect the personal and/or property rights of the citizens.

30. Lord Denning has described the role of the police thus: “ In safeguarding our freedoms, the police play the vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen to detect it an bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more force than the occasion warrants……” 31. One of the responsibilities of the police is protection of life, liberty and property of citizens. Then investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book. 41 26. As respondent No.1 has furnished the basis on which sections 15, 16, 17, 18 and 20 of the UA(P) Act, 1967 are sought to be incorporated in the F.I.R., in my opinion, the application made by the Investigating Officer to seek inclusion of these offences and consequent permission accorded by the learned Magistrate thereon cannot be faulted with. For the said reason, the contention urged by the petitioners in this regard is rejected. II. Entrustment of investigation to the N.I.A.

27. Second contention urged by the petitioners is with regard to taking over the investigation by the NIA. The petitioners have strongly assailed the order passed by the Under Secretary to Government of India dated 7.12.2016 (Annexure- ‘E’) directing the N.I.A. to take up the investigation on the ground that the said order is patently illegal, biased and blatant mis-use of the provisions of the N.I.A. Act, 2008. 42 28. Learned counsel for the petitioners has referred to section 6 of the N.I.A. Act which prescribes the manner of investigation of the offences listed in the schedule to the Act. Section 6 reads as under:- “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. 43 (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, is 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. 44 29. A reading of sub-section (1) to sub-section (4) of section 6 of the N.I.A. Act makes it clear that the Police Officer in charge of the Police Station on receipt of the information relating to a Scheduled Offence shall forward the report to the State Government and the State Government in turn shall forward the report to the Central Government. If the Central Government is of the opinion that the offence is a Scheduled Offence, it shall direct the Agency for investigation of such offence.

30. In the instant case, it is relevant to note that in the objection statement, the second respondent has taken up a definite stand that “based on the report of the Government of Karnataka and information received from other sources, the Central Government is of the opinion that Scheduled Office has been committed, and keeping in view the gravity of the offence, the Central Government directed the N.I.A. in accordance with section 6 of the N.I.A. Act, 2008 to take up the investigation of the said case.” 45 31. A reading of the order dated 7.12.2016 at Annexure- ‘E’ and the facts and circumstances which I would presently discuss would show that the order dated 7.12.2016 is not based on the report of the State Government as contended by the second respondent. Here itself it may be relevant to reproduce the order dated 7.12.2016 (Annexure-‘E’). It reads as under:- Government of India Ministry of Home Affairs Internal security-I Division --- North Block, New Delhi Dated, the 7th December, 2016

ORDER

Whereas, the Central Government has received information that a case Crime No.124/2016 has been registered on 16.10.2016 at the Commercial Street Police Station in Bengaluru City, under sections 303/34 of Indian Penal Code regarding daylight ghastly murder of Shri.R.Rudresh, which was committed to strike terror in the minds of general public. And whereas sections 15, 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 along with sections 46 109, 150, 153(A), 120B and 201 of Indian Penal Code and sections 3 & 27 of Arms Act were added by the State Police during the course of investigation. And whereas the Central Government having regard to the gravity of the said offence, is of the opinion that the offence involved is a Scheduled Offence which is required to be investigated by the National Investigation Agency in accordance with the National Investigation Agency Act, 2008. Now therefore, in exercise of the powers conferred under section 6(5) read with section 8 of the National Investigation Agency Act, 2008, the Central Government hereby, suo-motu, directs the National Investigation Agency to take up the investigation of the aforementioned case. Under Secretary to the Government of India (N.S.Bisht) 32. This order, on the face of it, indicates that it was passed in exercise of the powers conferred under section 6(5) of the N.I.A. Act, 2008. Therefore, the contention taken in the objection statement that based on the report of the State 47 Government, the impugned order came to be passed stands falsified. Undisputedly, the State Government has not sent any report to the Central Government. If the decision was taken on the basis of the report of the State Government, as contended, there was no necessity to take suo motu decision by the Central Government under section 6(5) of the N.I.A. Act. Of course, even in the absence of any report from the State Government, the Central Government is empowered to suo motu direct the N.I.A. to investigate the offence, if it is of the opinion that a Scheduled Offence has been committed, under this Act by the N.I.A. 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 N.I.A. Act. 48 33. In the instant case, the records produced before the Court do not reveal that the Central Government has taken any informed decision or has taken into consideration any documents before arriving at an opinion that the Scheduled Offence has been committed by the petitioners. First and foremost, the order in question does not disclose that any of the proceedings have been drawn up. The impugned order does not reflect that the relevant material was placed before the competent authority for its consideration before directing investigation by the N.I.A. As already stated above, this order is passed by the Under Secretary to the Central Government. It is not forthcoming either in the order or in the statement filed before the Court as to the material relied on by the Central Government to satisfy itself that a Scheduled Offence has been committed. As already stated above, the State Government has not forwarded any information or report to the Central Government under section 6(1) and 6(2) of the N.I.A. Act, 2008. Therefore, there were 49 absolutely no material before the Central Government while issuing the purported order dated 7.12.2016.

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. It is also significant to note that along with the statement of objections, the second respondent has produced Annexure- ‘R1’ which is said to have been the information furnished to the Central Government by the State Government. But this letter is seen to have been written by the Commissioner of Police and not by the State Government. This letter reads as under:- 50 To, Sri Anurag Tankha, IPS, Inspector General (Policy), National Investigation Agency, NDCC-II Building, 6/7th Floor, Jai Singh Road, New Delhi-110001. Sir, Sub: Investigation of criminal offences under the Unlawful Activities (Prevention) Act-1967 in the case No.124/2016 of Commercial Street Police Station of Bengaluru City-regarding. Ref:

1. Letter No.18/PD/Cr-124/Bengaluru/PF/NIA/ DLI/16(143) dated 24.11.2016 of NIA, New Delhi.

1. With reference to the above subject, it is hereby informed that the case of Commercial Street Police Station, Bengaluru City in Cr.No.124/2016 under section 302 r/w. 34 I.P.C. was registered on 16.10.2016.

2. During the course of investigation, sections 15, 16, 17, 18 & 20 of The Unlawful Activities (Prevention) Act - 1967 have been applied, along with sections 109, 150, 153(A), 120(B), 201 Indian Penal Code and sections 3, 27 of the Arms Act, 1959. 51 3. So far, 5 accused have been arrested. Investigation is continuing. Yours sincerely, (N.S.Megharikh) Commissioner of Police, Bengaluru City.

35. 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 authorizing the N.I.A. to investigate into the alleged offences, the Inspector General (Policy) of N.I.A. had already taken up the collection of information which again speaks of the interested role played by the N.I.A. Even assuming that the information furnished by the Commissioner of Police, Bengaluru City, was placed before the Central Government, it is relevant to note that in the said letter, except intimating the provisions under which the F.I.R. was filed, 52 the Commissioner did not produce any documents or evidence to show either the involvement of the petitioners in the alleged offences or that the material collected by the Investigating Officer indicated the commission of the scheduled offence by the petitioners. Apart from this letter, there was no other material before the Central Government to facilitate it to form an opinion that the scheduled offence has been committed by the petitioners. Under the said circumstances, there was absolutely no basis for the Central Government to arrive at an opinion that scheduled offences have been committed by the petitioners which require to be investigated by the special agency constituted under the N.I.A. Act, 2008.

36. Needless to say, the order passed by the Central Government at Annexure-‘E’ has serious consequence on the rights and liberties of the petitioners. The Central Government was required to comply with the requirements of section 6(5) before directing investigation by the N.I.A. On overall 53 consideration of the facts and circumstances discussed above, I am of the opinion that the Central Government has failed to comply with the requirements of section 6(5) of the N.I.A. Act. The circumstances discussed above lead to the inevitable conclusion that the impugned order is passed with a pre- conceived notion that the petitioners are involved in the scheduled offence. The impugned order smacks of arbitrariness and is issued in utter disregard of the requirements of section 6(5) of the N.I.A. Act. The impugned order at Annexure-‘E’ 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 circumstances discussed above clearly point out that without considering any material, the Under Secretary to the Central Government has passed the impugned order dated 7.12.2016 entrusting the investigation to the N.I.A. Therefore, in my opinion, the impugned order dated 7.12.2016 (Annexure- ‘E’) empowering the N.I.A. to investigate into the alleged offence cannot be sustained. 54 III. EXTENSION OF PERIOD OF INVESTIGATION UPTO180DAYS:- 37. In so far as extension of period of investigation upto 180 days is concerned, the said order has been passed under section 43D(2)(b) of the UA(P) Act, 1967. As the inclusion of the provisions of the section under the UA(P) Act, 1967 for the purpose of investigation are found to be valid, the order passed by the learned Magistrate extending the period of investigation upto 180 days cannot be interfered with. For the foregoing reasons, I pass the following order:- Both the criminal petitions are allowed in part. The prayer sought for by the petitioners to set-aside the order passed by the learned XLIII A.C.M.M., Bengaluru dated 5.11.2016 is rejected. The order dated 7.12.2016 (Annexure- ‘E’) passed by the Central Government directing the N.I.A. to investigate into the offence in Crime No.124/2016 of Commercial 55 Street Police Station, Bengaluru is set-aside. The investigation into the offence registered against the petitioners shall be continued by respondent No.1 –State in accordance with the rules as per Section 43 of UA(P) Act 1967. The prayer sought for by the petitioners to set-aside the order passed by the learned LI Addl. City Civil & Sessions Judge, Bengaluru dated 24.1.2017 extending the investigation period to 180 days in Cr.No.124/2016 (RC.No.4/2016) (Annexure-‘G’) is rejected. Bss. Sd/- JUDGE