THE STATE OF WEST BENGAL & ORS. versus SUVENDU ADHIKARI & ORS. on 24 July 2023

1. Six first information reports were registered by the Police inthe State of West Bengal. Details of these first information reports havebeen tabulated in a statement which has been furnished by the State ofWest Bengal :

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2. Acting on a Public Interest Litigation, a Division Bench of theGHigh Court of Judicature at Calcutta by its order dated 27 April 2023held that the allegations implicate offences punishable under the ExplosiveSubstances Act. Hence, the High Court held that this is a fit case wherethe entire investigation should be transferred to the National InvestigationAgency with a direction to the Central Government to exercise their H

Apower under Section 6(5) of the National Investigating Agency Act 2008.

3. The proceedings were thus disposed of by the High Court bydirecting the State police to ensure that all the FIRs, documents, materialseized and CCTV footage, among other things, should be immediatelyhanded over to the NIA which shall commence investigation and proceedBin accordance with law. The police authorities of the State of West Bengalwere directed to hand over all material to the NIA within two weeks.

4. During the course of hearing, we have heard Mr GopalSankarnarayan, senior counsel appearing on behalf of the State of WestBengal, Mr Tushar Mehta, Solicitor General of India appearing on behalfCof the NIA, Mr PS Patwalia, senior counsel appearing on behalf of theoriginal petitioner before the High Court and Ms Bansuri Swaraj, counselappearing on behalf of an intervenor who had filed a complaint arisingout of the incidents in question.

5. The principal submissions which have been urged on behalf ofDthe petitioners are :

(i) Six FIRs were registered by the police in relation to six differentincidents spanning four distinct dates;

(ii) The High Court has dwelt at considerable length on theprevious orders which it passed for transfer of investigationsEto the NIA;

(iii) Two grounds have weighed with the High Court :

(a) FIR 141 of 2023 dated 02 April 2023 contains allegationsabout the alleged use of bombs; and (b) All four seizure memos appear to be in the samehandwriting.

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(iv) As regards (a) above, the injuries sustained by the injuredcomplainant indicate only abrasions which are inconsistentwith such an incident. As regards (b) above, seven differentGpolice officers had carried out the investigation involving, interalia, the preparation of the seizure memos;

(v) The police authorities in the State of West Bengal have dulyacted in pursuance of the alleged incidents which took placeduring the course of the Ram Navami observances in theHState; and

(vi) The direction by the High Court for the transfer of investigationto the NIA is not warranted and would demoralise the policein conducting investigation in accordance with law.

6. On the other hand, the Solicitor General of India appearing onbehalf of the NIA and the counsel appearing on behalf of the originalpetitioners and the intervenors supported the order of the High Court.

7. Section 6(1) of the NIA Act requires an officer in-charge of apolice station to forward a report to the State Government forthwith onthe receipt of information and the recording thereof under Section 154of the Code of Criminal Procedure, “relating to any scheduled offence”.The expression “relatingto any scheduled offence” is an expression ofa broad amplitude. Sub-section (2) of Section 6 mandates that on receiptof a report under Section 6(1), the State Government shallforward thereport to the Central Government “as expeditiously as possible”.Thereafter, in terms of sub-section (3), the Central Government has todetermine within a stipulated period on the basis of the information madeavailable by the State Government “or received from other sources”,whether the offence is a scheduled offence or not and whether havingregard to the gravity of the offence and other relevant factors, it is a fitcase to be investigated by the agency. Upon forming such an opinion,the Central Government is empowered under sub-section (4) to directthe NIA to investigate the offence.

8. Sub-section (1) of Section 6 casts an affirmative obligationinitially on the officer in-charge of a police station to report to the StateGovernment, on receipt of information under Section 154 relating to anyscheduled offence. Section 6(2) casts a duty upon the State Governmentto forward the report to the Central Government expeditiously. As regardsthe role of the Central Government, sub- section (3) makes it abundantlyclear that the formation of opinion on whether the offence is a scheduledoffence and whether the case is a fit case to be investigated by the NIAhaving regard to the gravity of the offence, may be based not only on theinformation which has been made available by the State Governmentbut also on such information as is received from other sources. Thepower of the Central Government to refer an investigation to the NIA isnot constrained to the report which is submitted by the State Governmentupon receipt of the initial report of the officer in-charge of the policestation.

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A9. The Central Government, in terms of its mandate, has to applyits mind to whether firstly, the offence is a scheduled offence or not; andsecondly, whether having regard to the gravity of the offence and otherrelevant factors, it is a fit case to be investigaged by the NIA.

10. Independent of these provisions, sub-section (5) of Section 6Bwhich is prefaced by a non obstante provision empowers the CentralGovernment to exercise a suo motopower to direct the NIA to investigatean offence when it forms the opinion that a scheduled offence has beencommitted which is required to be investigated under the Act. Uponexercise of powers by the Central Government either under sub-section(4) or sub-section (5), the State Government and any police officer ofCthe State Government investigating the offence would stand restrainedfrom proceeding with the investigation and are duty bound to transferthe relevant documents and records to the NIA forthwith.

11. The directions of the High Court in the impugned order wererendered on 27 April 2023. Following this, on 8 May 2023, the CentralDGovernment issued a notification in exercise of its power under Section6(5). The notification which has been issued by the Central Governmentmakes a reference to the order passed by the High Court but, havingdone so, it proceeds to expressly clarify that the power was also beingexercised in terms of the provisions of Section 6(5). Pursuant thereto,Esix FIRs were registered on 10 May 2023. Cognizance has been takenby the Special Court on 11 May 2023. This sequence of events whichhas been indicated in the submissions of Mr PS Patwalia, senior counseland as authenticated in the submission of the Solicitor General, is not indispute. Hence, as the matter stands, the NIA has exercised its jurisdictionspecifically with reference to its powers under Section 6(5).F

12. At this stage, the Court is not called upon to either decide onthe sufficiency of the allegations or their veracity. The remit of thisCourt would be to determine whether the exercise of jurisdiction by theCentral Government under Section 6(5) is extraneous to the powersconferred upon it by Section 6(5) so as to warrant the interference ofGthis Court.

13. The six FIRs which were registered by the State policeauthorities were all between 30 March 2023 and 3 April 2023 and straddlefour police stations. Of them, two FIRs which have been recorded atPolice Station Shibpur on 31 March 2023 relate to incidents whichH

THE STATE OF WEST BENGAL & ORS. v. SUVENDU ADHIKARI &ORS. [DR. DHANANJAYA Y CHANDRACHUD, CJI]

occurred on 31 March 2023 and are proximate in time. Likewise, thesame situation appears from the FIRs which have been registered atPolice Station Serampore on 2 April 2023 and 03 April 2023.

14. The precise contours of the investigation which should becarried out by the NIA cannot be anticipated or restricted at this stage.Cognizance has also been taken by the NIA Court.

15. There is no challenge to the validity of the notification whichwas issued under Section 6(5).

16. Hence, we are not inclined to entertain the Special LeavePetitions, though for the reasons which have been indicated above.

17. We clarify that the observations which were made by theHigh Court in the impugned order would be confined to the question asto whether the exercise of jurisdiction by the NIA under the NationalInvestigation Agency Act, 2008 is valid. For the above reasons, we affirmthe judgment of the High Court.

18. The Special Leave Petitions are disposed of in the above terms.

19. Pending applications, if any, stand disposed of.

Ankit Gyan

SLPs disposed of.

(Assisted by : Aarsh Choudhary, LCRA)

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