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IN the HIGH COURT of CHHATTISGARH at BILASPUR WRIT PETITION (PIL) NO. /2020 PETITIONER: Hari Degal VERSUS RESPONDENTS

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IN the HIGH COURT of CHHATTISGARH at BILASPUR WRIT PETITION (PIL) NO. /2020 PETITIONER: Hari Degal VERSUS RESPONDENTS IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (PIL) NO. /2020 PETITIONER: Hari Degal VERSUS RESPONDENTS: State of Chhattisgarh & Others INDEX S No. Particulars Annex Page No. 1. Synopsis and List of Dates 2. Writ petition under Art. 226 of the Constitution of India along with Certificate. 3. Application for exemption from paying security amount. 4. Application for waiver of locus standi rules. 5. Affidavit 6. Additional Affidavit 7. Copy of news reports. P/1 (colly) 8. Copy of notification dated 01.09.2010 bearing S.O. P/2 No. 2157 (E) issued by Respondent No. 3 9. Copy of notification dated 19.05.2015 bearing F. No. P/3 4659/1292/XXI-B/C.G./2015 issued by Respondent No. 1. 10. Copy of the RTI Application dated 16.12.2019 P/4 seeking copy of the memorandum from Kondagaon District Court. 11. Copy of notification dated 24.11.2015 bearing S. O. P/5 No. 3161 (E) issued by Respondent No. 3 12. The copy of the judgment The State of Chhattisgarh P/6 and Ors. Vs. National Investigative Agency MANU/CG/0884/2019 13. The copy of the relevant pages of The Fifth Report, P/7 Second Administrative Reforms Commission on ‘Public Order — Justice for Each… Peace for All’ dated 01.06.2007. 14. Vakalatnama BILASPUR SHIKHA PANDEY DATED: 10.01.2020 COUNSEL FOR THE PETITIONER IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (PIL) NO. /2020 PETITIONER: Hari Degal VERSUS RESPONDENTS: State of Chhattisgarh & Others SYNOPSIS The present Petition is filed challenging the legality of the notification dated 19.05.2015 F. No. 4659/1292/XXI-B/C.G./2015 issued by the Respondent No. 1 and all the proceedings emanating therefrom which are ultra vires to the National Investigation Agency Act 2008 (hereinafter referred to as the ‘NIA Act’) and in the teeth of the judgments rendered by the Full Bench of the Patna High Court in Bahadur Kora and Others versus the State of Bihar 2015 Criminal Law Journal 2134 and Division Bench of the Rajasthan High Court in Jagdish Singh v State of Rajasthan, 2016(4)RLW 3464 (Rajasthan). The impugned notification is unconstitutional and illegal inasmuch as the State of Chhattisgarh lacks the legislative competence to direct the trial of the cases registered under the Scheduled offences before the NIA Special Court for the category of cases that are not investigated by the NIA or are not transferred by the NIA after approval of the Central Government. LIST OF DATES Date Event 31.12.2008 The Parliament enacted the National Investigation Agency Act, 2008. 01.09.2010 The Central Government pursuant to its powers under Section 11 of the NIA Act issued a notification dated 01.09.2010 bearing S.O. No. 2157 (E) appointing the Court of District and Sessions Judge, at Bilaspur, Chhattisgarh as Special Court for conducting trial of the Scheduled Offences. It was notified that the jurisdiction of the Special Court mentioned in the notification shall extend throughout the State of Chhattisgarh. That this notification was only regarding the cases investigated by the NIA 19.05.2015 That the Government of Chhattisgarh through the Principal Secretary, Law and Legislative Affairs Department pursuant to its power under Section 22 of the NIA Act issued a notification dated 19.05.2015 (‘impugned notification’) bearing F. No. 4659/1292/XXI-B/C.G./2015 appointing the First Additional Sessions Judge, Bastar at Jagdalpur as Special Court for the trial of Scheduled Offences committed within the jurisdiction of North Bastar (Kanker), Bastar (Jagdalpur) and South Bastar (Dantewada), and appointed the Sessions Judge, Bilaspur for trying the offences committed within the jurisdiction of the rest of the districts of Chhattisgarh. 03.09.2015 Memorandum dated 03.09.2015 bearing number 858/do-16- 01/2013 Kondagaon issued by the office of the District and Sessions Judge Kondagaon to transfer the cases registered under Scheduled Offences in Kondagaon district to Bastar District and Sessions Court at Jagdalpur. 24.11.2015 Subsequently, on 24.11.2015 the Central Government issued notification bearing S. O. No. 3161 (E) wherein the Central Government in exercise of its powers under Section 11(1) and (3) of the NIA Act, notified 1st Additional Sessions Judge, Jagdalpur as Special Court for Civil District Uttar Bastar Kanker, Bastar at Jagdalpur, Dakshin Bastar (Dantewada) and Kondagaon of Chhattisgarh for the purposes of the said sub- section (1) of Section 11 of the said Act for trial of schedule offences. 02.08.2019 NIA (Amendment) Act 2019 came into force. The offences under the Explosive Substances Act, 1908 and Section 25 of the Arms Act, 1959 have been added to the Scheduled Offences. BILASPUR SHIKHA PANDEY DATED: 10.01.2020 COUNSEL FOR THE PETITIONER IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (PIL) NO. OF 2020 PETITIONER: Hari Degal S/o Shri Ram Lal Degal, age 46 years Versus RESPONDENTS: 1. State of Chhattisgarh, Through its Home Secretary, Mantralaya, Naya Raipur (CG), PIN - 492002 2. National Investigation Agency Through its Director General NIA Headquarters, CGO Complex Lodhi Road, New Delhi- 110003 3. Union of India Through its Secretary Ministry of Home Affairs North Block, New Delhi-110001 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONER: As mentioned in the cause title. 2. PARTICULARS OF THE RESPONDENTS: As mentioned in the cause title. 3.(A) PARTICULARS OF THE ORDER AGAINST WHICH THE PRESENT PETITION IS BEING FILED: The petition is against the notification dated 19.05.2015 bearing F. No. 4659/1292/XXI-B/C.G./2015 issued by the Respondent No. 1 and all the consequences emanating therefrom. (B) SUBJECT MATTER IN BRIEF The present Petition is filed challenging the legality of the notification dated 19.05.2015 F. No. 4659/1292/XXI-B/C.G./2015 issued by the Respondent No. 1 and all the proceedings emanating therefrom which are ultra vires to the National Investigation Agency Act 2008 (hereinafter referred to as the ‘NIA Act’) and in the teeth of the judgments rendered by the Full Bench of the Patna High Court in Bahadur Kora and Others versus the State of Bihar 2015 Criminal Law Journal 2134 and Division Bench of the Rajasthan High Court in Jagdish Singh v State of Rajasthan, 2016(4)RLW 3464 (Rajasthan). A. IMPGUNED NOTIFICATION IS ULTRA VIRES THE NATIONAL INVESTIGATION ACT, 2008 (HEREINAFTER REFERRED TO AS THE NIA ACT) The impugned notification is unconstitutional and illegal inasmuch as the State of Chhattisgarh lacks the legislative competence to direct the trial of the cases registered under the Scheduled offences before the NIA Special Court for the category of cases that are not investigated by the NIA or are not transferred by the NIA after approval of the Central Government. The impugned notification is ultra vires the powers of the Respondent No. 1 under Section 22 (1) of the National Investigation Agency Act, 2008 (‘NIA Act’) wherein Respondent No. 1 has designated the Additional Sessions Judge, Bastar at Jagdalpur as Special Court for the trial of Scheduled Offences under NIA Act having jurisdiction over the following civil districts: North Bastar (Kanker), Bastar (Jagdalpur) and South Bastar (Dantewada), and with the Sessions Judge, Bilaspur retaining jurisdiction over rest of the districts of Chhattisgarh. Furthermore, subsequently the District and Sessions Court of Kondagaon vide notification dated 03.09.2015 has directed that the cases pending before it under the Scheduled Offences of the NIA Act to be transferred to the NIA Special Court at District and Sessions Court at Bastar, Jagdalpur. That as a consequence of the impugned notification all cases registered under the Scheduled Offences of the NIA Act that are being investigated by the state investigation agency, without the entrustment by the NIA after approval of the Central Government under Section 7 (b) of the NIA Act committed under the jurisdiction of the District and Sessions Court of districts North Bastar (Kanker), Bastar (Jagdalpur), South Bastar (Dantewada) and district Kondagaon have been transferred to NIA Special Court at Bastar, in Jagdalpur. It is submitted that the impugned notification is non-est in the eye of the law. Under Section 6 (1) of the NIA Act when a First Information Report (FIR) is registered under any Scheduled Offence by the investigating officer, the state government is incumbent to forward the report to the central government. Under Section 6(3) of the NIA Act, the central government within 15 days is to determine on the basis of the information received by the State Government whether it is a fit case to be investigated by the NIA Thereafter, under Section 6(4) of the NIA Act when the central government is of the opinion that the Scheduled Offence is fit to be investigated by the NIA, it shall direct the NIA to investigate the said offence. However, under Section 6(7) of the NIA Act if the central government does not pass any order entrusting the investigation to NIA within fifteen days of receipt of the state government’s report, investigation of the Scheduled Offence shall be continued by the state investigating agency. As per the NIA Act, the role of the State Government in the investigation under this Act is limited to two circumstances under Section 7. First, under Section 7 (a) on request by the NIA to associate State Government with the investigation and as per Section 7 (b) when the NIA with the previous approval of the Central Government transfers the case to the State Government for investigation and trial of the offence. Therefore, if the Central Government does not entrust the case to the NIA, the state investigating agency’s power to investigate and prosecute Scheduled Offence before the regular criminal court under the Code of Criminal Procedure is not curtailed.
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