# Anshad Badarudheen v. U.O.I. & Ors. 572 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 7 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-27
- **Case number:** Misc. Bench No. 9896 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anshad-badarudheen-v-u-o-i-ors-572-indian-law-reports-allahabad-series-47226
- **Pages:** 10

## Headnote

Government
Advocate,
Anurag
Kumar
Singh

A. National Investigation Agency Act,2019
-
Sections
2(1)(g),
6(3)
&
10
-
Investigation
of
Scheduled
Offences,
Section 6, - Power of State Government to
investigate Scheduled Offences - Section
10
-
Validity
-
Unlawful
Activities
(Prevention) Act - Held - In absence of
determination by the Central Government
as to whether offence is "Scheduled
Offence" or not, State Agency is fully
competent
to
investigate
scheduled
offence(s) - If it is interpreted that in the
absence of determination u/s 6 (3) of the
NIA Act by the Central Government, the
State Government would not have power
to investigate in respect of Scheduled
Offence,
then
such
an interpretation
would render the provisions of S. 10 of the
NIA Act as redundant

B. National Investigation Agency Act,
2019 - Sections 6(4), 6(5) & 10 - when
State Government could not investigate
Scheduled Offences - Held - words "Save
as
otherwise
provided
in
this
Act"
occurring in S. 10 refers to S. 6 (6) of the
NIA Act, which provides that where
Central Government has issued a direction
under Section 6 (4) or Section 6 (5) of the
NIA Act for getting the Scheduled Offence
(s) investigated by the Agency, 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 -

Held - In the instant case, Central Government
has not issued any direction to get the
Scheduled Offence (s) investigated by the
Agency, therefore, State Government was fully
competent to investigate the matter arising out
of F.I.R. under Arms Act, Explosive Substances
Act, 1908, Unlawful Activities (Prevention) Act
(Para 14, 16, 17)

C. Criminal Procedure Code (2 of 1974) -
Section 173 - Transfer of investigation to
C.B.I. - Transfer of investigation to
independent investigating agency like CBI
must be in rare and exceptional cases

In the present case investigation concluded by
the Investigating Agency of the State - police
report has been submitted & cognizance of the
offence has also been taken - petitioner unable
to show Investigating Officer mala fide - not a
case of abuse of power and non-compliance by
the Investigating Agency - it is not a rare or
exceptional case where investigation needs to
be transferred to the CBI as a court monitored
matter (Para 26, 26)

Dismissed. (E-4)

List of Cases cited :

## Text

7 All. Anshad Badarudheen Vs. U.O.I. & Ors.
571
instructions, and the co-conductor's evidence in
favour of the respondent showed that the
respondent was not guilty. The decree of the
Trial Court was confirmed by the Appellate
Court and the High Court. Allowing the Appeal,
the Supreme Court observed that in a domestic
enquiry the strict and sophisticated rules of
Evidence Act may not apply. All materials
which are logically probative for a prudent
mind are permissible, though Departmental
Authorities and the Administrative Tribunal
must be careful in evaluating such materials and
should not glibly swallow what, strictly
speaking is not relevant under the Evidence Act.
The essence of a judicial approach is
objectivity, exclusion of extraneous materials or
considerations, and observance of Rules of
Natural Justice. Of course, fairplay is the basis
and if perversity or arbitrariness, bias or
surrender of independence of judgment vitiate
the conclusions reached, such finding, even
though of a domestic tribunal, cannot be held to
be good. The simple points in all such cases is,
was there some evidence or was there no
Evidence --not in the sense of the technical
rules governing Court proceedings, but in a fair
commonsense way as a man of ordinary
understanding and worldly wisdom will accept.
Sufficiency of evidence in proof of the finding
by a domestic Tribunal is beyond scrutiny by
the Court, while absence of any evidence in
support of the finding idismissed. s an error of
law apparent on the record and the Court can
interfere with the finding. Learned courts below
had mis-directed themselves, perhaps, in
insisting on the evidence of the ticketless
passengers. Also, merely because the statements
were not recorded, the order of termination
cannot be invalid.

(12) In the case in hand, the petitioner is
only a licensee of a fair price shop which
license is the result of a contract. A contract
wherein the beneficiary is the common
man/people of the village who would
receive the foodgrains at subsidized rates out
of taxpayers money. The license is a privilege
arising out of contractual obligations. In such
cases the Principles of Natural Justice and
strict Rules of Evidence would hardly apply.
Only stock verification and verification of
Distribution Register could have been done to
find out the discrepancy in distribution.
Moreover, the statements of six card holders
who were present during spot inspection were
taken and copies of statements were given to
the petitioner. The petitioner in his reply
could not refute the allegations made against
him to the satisfaction of the Licensing
Authority.

(13) With regard to the allegations
made by the petitioner that the Supply
Inspector had approached him and had
demanded Rs.30,000/-, the petitioner has not
impleaded the Supply Inspector, in person as
a party in the array of the respondents. The
allegations of malice in fact cannot be
substantiated.

(14) The writ petition is devoid of
merits, it is dismissed.
----------
(2021)07ILR A571
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Misc. Bench No. 9896 of 2021

Anshad Badarudheen ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sheeran Mohiuddiin Alavi, Aftab Ahmad,
Saipan Shaikh, Tahir

Counsel for the Respondents:
Government
Advocate,
Anurag
Kumar
Singh

A. National Investigation Agency Act,2019
-
Sections
2(1)(g),
6(3)
&
10
-
Investigation
of
Scheduled
Offences,
Section 6, - Power of State Government to
investigate Scheduled Offences - Section
10
-
Validity
-
Unlawful
Activities
(Prevention) Act - Held - In absence of
determination by the Central Government
as to whether offence is "Scheduled
Offence" or not, State Agency is fully
competent
to
investigate
scheduled
offence(s) - If it is interpreted that in the
absence of determination u/s 6 (3) of the
NIA Act by the Central Government, the
State Government would not have power
to investigate in respect of Scheduled
Offence,
then
such
an interpretation
would render the provisions of S. 10 of the
NIA Act as redundant

B. National Investigation Agency Act,
2019 - Sections 6(4), 6(5) & 10 - when
State Government could not investigate
Scheduled Offences - Held - words "Save
as
otherwise
provided
in
this
Act"
occurring in S. 10 refers to S. 6 (6) of the
NIA Act, which provides that where
Central Government has issued a direction
under Section 6 (4) or Section 6 (5) of the
NIA Act for getting the Scheduled Offence
(s) investigated by the Agency, 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 -

Held - In the instant case, Central Government
has not issued any direction to get the
Scheduled Offence (s) investigated by the
Agency, therefore, State Government was fully
competent to investigate the matter arising out
of F.I.R. under Arms Act, Explosive Substances
Act, 1908, Unlawful Activities (Prevention) Act
(Para 14, 16, 17)

C. Criminal Procedure Code (2 of 1974) -
Section 173 - Transfer of investigation to
C.B.I. - Transfer of investigation to
independent investigating agency like CBI
must be in rare and exceptional cases

In the present case investigation concluded by
the Investigating Agency of the State - police
report has been submitted & cognizance of the
offence has also been taken - petitioner unable
to show Investigating Officer mala fide - not a
case of abuse of power and non-compliance by
the Investigating Agency - it is not a rare or
exceptional case where investigation needs to
be transferred to the CBI as a court monitored
matter (Para 26, 26)

Dismissed. (E-4)

List of Cases cited :

1. St. of A.P. thru IG, NIA Vs Mohd Hussain @
Saleem

2. Pragya Singh Thakur Vs NIA (2014) 1 SCC
258

3. Hussna Vs NIA & anr. 2017 (4) ADJ 489 (DB)
(LB)

4. Mantu Sharma Vs St. of U.P. 2017 (6) ALJ
133

5. Mohd. Umar & ors. Vs St. of Raj & anr. 2016
Cr.L.J. 437

6. Aqil Hussain Vs St. of NCT of Delhi & ors.
2021 Cr.L.J. 1405
7.K.V. Rajendran Vs SP, CBCID South Zone,
Chennai & ors. (2013) 12 SCC 480

8. CBI & anr. Vs Rajesh Gandhi & anr. 1996 (11)
SCC 253

9. Bikramjit Singh Vs St. of Punjab (2020) 10
SCC 616

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)
7 All. Anshad Badarudheen Vs. U.O.I. & Ors.
573

1. The petitioner, by means of the
instant writ petition, is seeking the
following reliefs :-

(i) To issue the writ of mandamus,
to direct Respondent No.3 to take over the
investigation of Case Crime/F.I.R. No.0004
of 2021 registered at Police Station-ATS,
Lucknow, wherein investigation is being
conducted by the respondent no.5.

(ii) To issue a writ, order or
direction in the nature of mandamus to
direct the respondent no.3 to investigate the
role of Respondent No.4 i.e. Special Task
Force in fabricating evidences and falsely
implicating the petitioner as well as the coaccused in the alleged heinous crimes in
the name of the PFI under monitoring of
this Hon'ble Court or under supervision of
Hon'ble sitting judge of this Hon'ble High
Court, as this Hon'ble Court may deem fit,
just and proper, in the interest of justice and
equity".

2. In order to appreciate the
controversy involved in this writ petition, it
is necessary to set out the relevant facts,
herein below : -

3. The petitioner and his friend,
namely Firos K. C., are residents of the
State of Kerala and are admittedly
members of Popular Front of India
(hereinafter referred to as "PFI"), having its
Head Office at Delhi. They are said to have
been arrested on 11.02.2021 at Mughal
Sarai Railway Station when they were
going
to
Lokmanya Tilak Terminus,
Mumbai from Katihar, Bihar. It is further
stated that the First Information Report
bearing No.0004 of 2021 dated 16.02.2021
has been lodged in this connection under
Sections-120-B, 121A of I.P.C., Section 3
and 5 of Arms Act, Sections-3, 4 and 5
of
Explosive
Substances
Act,
1908,
Sections-13, 16, 18 & 20 of Unlawful
Activities (Prevention) Act (hereinafter
referred to as "UA (P) Act)" at Police
Station-ATS, District-Lucknow disclosing
their arrest from Kukrail Jungle, Lucknow
on 16.02.2021. It is also stated by the
petitioner that the petitioner's wife, namely,
Smt. Mohsina M. T. filed an application
dated 15.02.2021 before Circle Inspector of
Police, Pandalam, Police Station, Kerala
for tracing the whereabouts of her husband
i.e., the petitioner, which was registered as
F.I.R. No.0250 of 2020, under Section 57
of Kerala Police Act, 2011. The wife of
Firoz K. C., namely, Smt. Soujath also filed
a similar complaint, which was registered
as F.I.R. No.0113 of 2021, under Section57 of Kerala Police Act, 2011 at Police
Station-Badagara,
District-Kozhikode
Rural, Kerala, for tracing the whereabouts
of her husband. According to the petitioner,
F.I.R. No.0004 of 2021 has been lodged at
Police Station-ATS, District-Lucknow after
illegally detaining the petitioner for the sole
reason that the petitioner and his friend,
Firoz K. C. are members of the PFI.

4. We have heard Mohd. Tahir and
Mohd. S. M. Alavi, learned counsel for the
petitioner, Sri S. N. Tilhari, learned A.G.A.
appearing for the State-respondents, Sri
Anurag Kumar Singh, learned counsel for
Central Bureau of Investigation (hereinafter
referred to as "CBI") and considered the
record available before us.

5. Learned counsel for the petitioner
has
contended
that
the
respondent
no.7/First Informant has got a case
registered under the provisions of Sections120-B, 121A of I.P.C., Section 3 and 5 of
574 INDIAN LAW REPORTS ALLAHABAD SERIES
Arms Act, Sections-3, 4 and 5 of
Explosives Substance Act, 1908, Sections13, 16, 18 & 20 of UA (P) Act at Police
Station-ATS, District-Lucknow. Pursuant to
the
F.I.R.
No.0004
of
2021,
the
investigation has been undertaken by the
State Agency. After conclusion of the
investigation and during the pendency of
the present writ petition, police report has
also been filed, which is unsustainable in
the eye of law, being contrary to mandatory
provisions of Section 6 of National
Investigation Agency Act
(hereinafter
referred to as the "NIA Act").

6. Elaborating his contention, he has
further stated that Section 6 (3) of the NIA
Act provides that on receipt of the report
from the State Government, the Central
Government shall determine on the basis of
the 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 National
Investigation Agency (hereinafter referred
to as "Agency").

7. In view thereof, learned counsel for
the petitioner has submitted that if the
provisions of Sections 6 (3) & 10 of the
NIA Act are read in a purposive and
meaningful manner, then in the absence of
determination by the Central Government
as to whether offence is "Scheduled
Offence" or not and also whether having
regard to the gravity of offence and other
relevant factors, the present matter arising
out of FIR No.0004 of 2021 is to be
investigated by the Agency, the provisions
contained in Section 10 of the NIA Act
would not enable the State Agency to
investigate any scheduled offence due to
occurrence of words "Save as otherwise
provided in the Act" in Section 10 of the
NIA Act. Therefore, the exercise of
completing
the
investigation
and
submission of
the police
report
by
respondent no.6 is illegal.

8. To substantiate his aforesaid
argument, learned counsel for the petitioner
has placed reliance upon the judgment in
the case of State of Andra Pradesh
through Inspector General, National
Investigation Agency vs. Mohd Hussain
Alias Saleem and in the matter of Pragya
Singh Thakur vs. National Investigation
Agency reported in (2014) 1 SCC 258.
Hon'ble Supreme Court, in para 19, has
held as under :-

"19. We cannot ignore that it is a
well-settled canon of interpretation that
when it comes to construction of a section,
it is to be read in its entirety, and its subsections are to be read in relation to each
other, and not disjunctively. Besides, the
text of a section has to be read in the
context of the statute. A few sub-sections of
a section cannot be separated from other
sub-sections, and read to convey something
altogether
different
from
the
theme
underlying the entire section. That is how a
section is required to be read purposively
and meaningfully."

9. Per contra, learned A.G.A. has
submitted that in the absence of any
determination by the Central Government
as stipulated under Section 6 (3) of the NIA
Act, the State Agency is fully competent to
undertake the investigation in respect of
scheduled offence and other offences and to
conclude it in accordance with the law in
view of the provisions of Section 6 (4), (5)
and (7) read with Section 10 of the NIA
7 All. Anshad Badarudheen Vs. U.O.I. & Ors.
575
Act. He has further contended that while
exercising such powers, the investigation
by the State Agency has been concluded
and the police report has also been
submitted
to
the
competent
court
constituted under Section 22 of the NIA
Act.

10. To support of his arguments,
learned A.G.A. has placed reliance upon
the judgments in the case of Hussna vs.
National
Investigating
Agency
and
another reported in 2017 (4) ADJ 489
(DB) (LB), Mantu Sharma vs. State of
U.P. reported in 2017 (6) ALJ 133, Mohd.
Umar and others vs. State of Rajasthan
and another reported in 2016 Cr.L.J. 437
and Aqil Hussain vs. State of NCT of
Delhi and others reported in 2021 Cr.L.J.
1405, wherein it has been held that in the
absence of determination by the Central
Government under Section 6 (3) of the NIA
Act, the State Government exercising the
power conferred upon it under Section 10
of the NIA Act is competent to investigate
the scheduled offence.

11. For a proper appreciation of the
contentions arising herein, it would be
appropriate to notice a few relevant
provisions of the NIA Act, which are
quoted herein below :-

Section 2 (1) (g) - "scheduled
offence" "means an offence specified in the
schedule.

THE SCHEDULE

1. The Atomic Energy Act, 1962
(33 of 1962);

2.
The
Unlawful
Activities
(Prevention) Act, 1967 (37 of 1967);

3. The Anti-Hijacking Act, 1982
(65 of 1982);

4. The Suppression Unlawful
Acts Against Safety of Civil Aviation Act,
1982 (66 of 1982);

5.
The
SAARC
Convention
(Suppression of Terrorism) Act, 1993 (36 of
1993);

6. The Suppression of Unlawful
Acts against Safety of Maritime Navigation
and Fixed Platforms on Continental Shelf
Act, 2002 (69 of 2002);

7.
The
Weapons
of
Mass
Destruction and their Delivery Systems
(Prohibition of Unlawful Activities) Act,
2005 (21 of 2005) ;

8. Offences under--

(a) Chapter VI of the Indian
Penal Code [Sections 121 to 130 (both
inclusive)];

(b) Sections 489A to 489E (both
inclusive) of the Indian Penal Code."

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
576 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

Section
10-
Power
of
State
Government
to
investigate
Scheduled
Offences. Save as otherwise provided in this
Act, nothing contained in this Act shall affect
the powers of the State Government to
investigate and prosecute any Scheduled
Offence or other offences under any law for
the time being in force.

12. Thus, from a bare perusal of
Section 6 of the NIA Act, it is abundantly
clear that it prescribes the manner of
investigation of the scheduled offence
listed in the Schedule attached to the NIA
Act. It provides that a Police Officer, Incharge of the Police Station, on receipt of
the report of the offence shall forward the
same to the State Government forthwith,
which, in turn, shall forward the report to
the Central Government, as expeditiously
as possible.

13. On the receipt of the report of the
State Government, the Central Government
has to decide and determine based on the
information made available by the State
Government
or
received
from
other
sources, within fifteen days from the date
of the 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.

14. It also stipulates that if 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. It is, thus, only where the
Central Government determines the
offence in question to be a Scheduled
Offence or a case fit to be investigated by
the Agency that it can be investigated by
the Agency. There is nothing on record to
suggest that the Central Government, in
respect of F.I.R. No.0004 of 2021, has
determined as to whether the offence
levelled against the petitioner is a
Scheduled Offence or that, on the
strength of the gravity of the offence and
other relevant factors, it is a fit case to be
investigated by the Agency.

 (Emphasis supplied)

15. It emanates from the scheme of
the NIA Act that the scheduled offence is
one enumerated in the schedule appended
to the NIA Act. Thus, any further
declaration in this regard by the Central
Government in view of Section 6 (3) would
virtually render the provisions of Section 2
(1) (f) and (g) as redundant.

16. It is also ascertainable from the
scheme of the NIA Act that the words
7 All. Anshad Badarudheen Vs. U.O.I. & Ors.
577
"Save as otherwise provided in this Act"
occurring in Section 10 of the NIA Act
clearly refer to the provisions of Section 6
(6) of the NIA Act, which provides that
where Central Government has issued a
direction under Section 6 (4) or Section 6
(5) of the NIA Act for getting the
Scheduled Offence (s) investigated by the
Agency, 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.

17. If it is interpreted to convey that
in the absence of determination under
Section 6 (3) of the NIA Act by the
Central
Government,
the
State
Government would not have power to
investigate in respect of Scheduled
Offence, then such an interpretation
would not only be against the legislative
intent but it would also render the
provisions of Section 10 of the NIA Act as
redundant.

 (Emphasis supplied)

18. In the instant case, admittedly, the
Central Government has not issued any
direction under Section 6 (4) or Section 6
(5) of the NIA Act to get the Scheduled
Offence (s) investigated by the Agency,
therefore, the authority and power of the
State Government to investigate and
prosecute any Scheduled Offence remains
unaffected.

19. It is, thus, clear that the State
Government
was
fully
competent
to
investigate the matter arising out of F.I.R.
No.0004 of 2021, dated 16.02.2021, under
Sections-120-B, 121A of I.P.C., Section 3
and 5 of Arms Act, Sections-3, 4 and 5 of
Explosive
Substances
Act,
1908,
Sections-13, 16, 18 & 20 of UA (P) Act at
Police Station-ATS, District-Lucknow and
arguments of learned counsel for the
petitioner to the contrary are fallacious.

20. The learned counsel for the
petitioner
further
contends
that
the
investigation of the matter arising out of
F.I.R. No.0004 of 2021, dated 16.02.2021,
under Sections-120-B, 121A of I.P.C.,
Sections 3 and 5 of Arms Act, Sections-3, 4
and 5 of Explosive Substances Act, 1908,
Sections-13, 16, 18 and 20 of UA (P) Act at
Police
Station-ATS,
District-Lucknow
needs to be transferred to the CBI only on
the ground that the State Authority and
Investigating Agency are prejudiced and
biased towards the petitioner as he is a
member of PFI, which is termed by
respondent no.5 as "South Terror" on its
portal, which is evident from Annexure
No.7 to this petition. It has also been stated
that the transfer of the investigation to the
CBI is necessary because the investigation
is not being carried out in a free and fair
manner.

21.

In
K.V.
Rajendran
Vs.
Superintendent of Police, CBCID South
Zone, Chennai and others reported in
(2013) 12 SCC 480, Hon'ble The Supreme
Court has held as under :

13. The issue involved herein, is
no more res integra. This Court has time
and again dealt with the issue under what
circumstances the investigation can be
transferred from the State investigating
agency
to
any
other
independent
investigating agency like CBI. It has been
held that the power of transferring such
investigation
must
be
in
rare
and
578 INDIAN LAW REPORTS ALLAHABAD SERIES
exceptional cases where the court finds it
necessary in order to do justice between the
parties and to instil confidence in the
public mind, or where investigation by the
State police lacks credibility and it is
necessary for having "a fair, honest and
complete investigation", and particularly,
when it is imperative to retain public
confidence in the impartial working of the
State agencies. Where the investigation has
already been completed and charge-sheet
has been filed, ordinarily superior courts
should not reopen the investigation and it
should be left open to the court, where the
charge-sheet has been filed, to proceed
with the matter in accordance with law.
Under no circumstances, should the court
make any expression of its opinion on merit
relating to any accusation against any
individual. (Vide Gudalure M.J. Cherian v.
Union of India [(1992) 1 SCC 397] , R.S.
Sodhi v. State of U.P. [1994 Supp (1) SCC
143 : 1994 SCC (Cri) 248 : AIR 1994 SC
38] , Punjab and Haryana High Court Bar
Assn. v. State of Punjab [(1994) 1 SCC 616
: 1994 SCC (Cri) 455 : AIR 1994 SC 1023]
, Vineet Narain v. Union of India [(1996) 2
SCC 199 : 1996 SCC (Cri) 264] , Union of
India v. Sushil Kumar Modi [(1996) 6 SCC
500 : AIR 1997 SC 314] , Disha v. State of
Gujarat [(2011) 13 SCC 337 : (2012) 2
SCC (Cri) 628 : AIR 2011 SC 3168] ,
Rajender Singh Pathania v. State (NCT of
Delhi) [(2011) 13 SCC 329 : (2012) 1 SCC
(Cri) 873] and State of Punjab v. Davinder
Pal Singh Bhullar [(2011) 14 SCC 770 :
(2012) 4 SCC (Civ) 1034 : AIR 2012 SC
364] .)

14. In Rubabbuddin Sheikh v.
State of Gujarat [(2010) 2 SCC 200 :
(2010) 2 SCC (Cri) 1006] this Court dealt
with a case where the accusation had been
against high officials of the Police
Department of the State of Gujarat in
respect of killing of persons in a fake
encounter and Gujarat Police after the
conclusion of the investigation, submitted a
charge-sheet before the competent criminal
court. The Court came to the conclusion
that as the allegations of committing
murder under the garb of an encounter are
not against any third party but against the
top police personnel of the State of
Gujarat, the investigation concluded by the
State investigating agency may not be
satisfactorily held. Thus, in order to do
justice and instil confidence in the minds of
the victims as well of the public, the State
police authority could not be allowed to
continue with the investigation when
allegations and offences were mostly
against top officials. Thus, the Court held
that even if a charge-sheet has been filed by
the State investigating agency there is no
prohibition
for
transferring
the
investigation to any other independent
investigating agency.

15. In State of W.B. v. Committee
for
Protection
of
Democratic
Rights
[(2010) 3 SCC 571 : (2010) 2 SCC (Cri)
401] a Constitution Bench of this Court has
clarified that extraordinary power to
transfer
the
investigation
from
State
investigating
agency
to
any
other
investigating agency must be exercised
sparingly, cautiously and in exceptional
situations where it becomes necessary to
provide credibility and instil confidence in
investigation or where the incident may
have
national
and
international
ramifications or where such an order may
be necessary for doing complete justice and
enforcing the fundamental rights. (See also
Ashok Kumar Todi v. Kishwar Jahan
[(2011) 3 SCC 758 : (2011) 2 SCC (Cri) 75
: AIR 2011 SC 1254] .)

17. In view of the above, the law
can be summarised to the effect that the
Court could exercise its constitutional
powers for transferring an investigation
7 All. Anshad Badarudheen Vs. U.O.I. & Ors.
579
from the State investigating agency to any
other independent investigating agency like
CBI only in rare and exceptional cases.
Such as where high officials of State
authorities are involved, or the accusation
itself is against the top officials of the
investigating agency thereby allowing them
to influence the investigation, and further
that it is so necessary to do justice and to
instil confidence in the investigation or
where the investigation is prima facie found
to be tainted/biased."

22. Hon'ble The Supreme Court in
Central Bureau of Investigation and
another vs. Rajesh Gandhi and another
reported in 1996 (11) SCC 253 has held that
the decision to investigate or the decision on
the Agency which should investigate, does
not attract the principle of natural justice. The
accused cannot have a say in who should
investigate the offence he is charged with.

23. It is admitted to the petitioner that
the Central Government has, so far, not
directed the Agency to investigate in
respect of the F.I.R.No.0004 of 2021, dated
16.02.2021, under Sections-120-B, 121A of
I.P.C., Section 3 and 5 of Arms Act,
Sections-3,
4
and
5
of
Explosive
Substances Act, 1908, Sections-13, 16, 18
& 20 of UA (P) Act at Police Station-ATS,
District-Lucknow, invoking its power under
Section 6 (3) of the NIA Act. The said
investigation has been concluded by the
Investigating
Agency
of
the
State,
respondent no.6. The police report qua the
present petitioner has been submitted to the
competent court. The cognizance of the
offence has also been taken by the special
court constituted by the State Government
in exercise of power vested in it by Section
22 of the NIA Act.

24. Hon'ble The Supreme Court in
Bikramjit Singh vs. State of Punjab,
reported in (2020) 10 SCC 616, in para 26,
has held as under :

"26. Before the NIA Act was
enacted, offences under the UAPA were of
two kinds -- those with a maximum
imprisonment of over 7 years, and those
with a maximum imprisonment of 7 years
and under. Under the Code as applicable to
offences against other laws, offences
having a maximum sentence of 7 years and
under are triable by the Magistrate's
courts,
whereas
offences
having
a
maximum sentence of above 7 years are
triable by Courts of Session. This scheme
has been completely done away with by the
NIA Act, 2008 as all Scheduled Offences
i.e. all offences under the UAPA, whether
investigated by the National Investigation
Agency or by the investigating agencies of
the State Government, are to be tried
exclusively by Special Courts set up under
that Act. In the absence of any designated
court by notification issued by either the
Central
Government
or
the
State
Government, the fallback is upon the Court
of Session alone. Thus, under the aforesaid
scheme what becomes clear is that so far as
all offences under the UAPA are concerned,
the Magistrate's jurisdiction to extend time
under the first proviso in Section 43D(2)(b) is non-existent, "the Court" being
either a Sessions Court, in the absence of a
notification specifying a Special Court, or
the Special Court itself. The impugned
judgment in arriving at the contrary
conclusion is incorrect as it has missed
Section 22(2) read with Section 13 of the
NIA Act. Also, the impugned judgment has
missed Section 16(1) of the NIA Act which
states that a Special Court may take
cognizance of any offence without the
580 INDIAN LAW REPORTS ALLAHABAD SERIES
accused being committed to it for trial,
inter alia, upon a police report of such
facts."

25. Placing reliance upon the
aforesaid judgment, the contention of
learned counsel for the petitioner is that
only special court, constituted under
Section 22 of the NIA Act, has jurisdiction
to take cognizance of the offences in
question. In absence of such court, the
sessions court has jurisdiction to take
cognizance because, in the present matter,
F.I.R. No.0004 of 2021 has been registered
under the provisions of UA (P) Act also.
The aforesaid contention of the learned
counsel for the petitioner has been
vehemently opposed by the learned A.G.A.,
who submits that the State Government, in
exercise of power vested in it by Section 22
of the NIA Act, has constituted special
court and the special court has taken
cognizance of the offence in question. In
view of the above, we do not find any
substance in the aforesaid arguments of the
learned counsel for the petitioner.

26. The petitioner has, thus, been
unable to show that the power of
investigation has been exercised by the
Investigating Officer mala fide. It is also
not found to be a case of abuse of power
and non-compliance by the Investigating
Agency following under Chapter XII of
the Code of Criminal Procedure. The
investigation has also been concluded by
the respondent no.6. So far as the
allegation of use of term "South Terror" on
the portal of respondent no.5 is concerned,
it is pertinent to mention here that use of
such term would not per se import element
of malice or bias towards the petitioner.
However, we view this fact with profound
concerned and disapprove use of such
term.

27. In view of the aforesaid
discussion, we are of the considered view
that it is not a rare or exceptional case
where investigation needs to be transferred
to the CBI as a court monitored matter.

28. No other issue has been urged
before us by the learned counsel for the
parties.

29. As discussed above, the writ
petition is liable to be dismissed and the
same is hereby dismissed.
----------
(2021)07ILR A580
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Misc. Bench No. 10928 of 2021

Ankur Agarwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Pratap Singh 'Vatsa'

Counsel for the Respondents:
G.A.

A. Practice & Procedure - Interim orders -
Object & Scope - interim orders/directions
are issued on the basis of prima facie
finding & makes temporary arrangements
to preserve status quo to ensure that the
matter
does
not
either
become
infructuous or a fait accompli before final
hearing - Precedent -interim directions
based on tentative reasons, restricted to
peculiar
facts
of
the
case
involving
extraordinary situation have no value of
precedent - interim order which does not
finally and conclusively decide an issue