Nothing illegal about NIA taking over Bhima Koregaon case but state police still holds key

New Delhi: The Ministry of Home Affairs (MHA) and the National Investigation Agency (NIA) are stoically silent over the transfer of the probe into the 2018 Bhima Koregaon violence case to the NIA even as Maharashtra leaders are hitting out at the Union government for “arbitrarily” handing over the case without the state administration’s consent.

An MHA spokesperson confirmed to ThePrint that the case has been transferred to the NIA, but refused to divulge further details.

The NIA took over the Bhima Koregaon case Friday in which several activists were booked for making provocative speeches at the Elgaar Parishad event organised at Shaniwar Wada in Pune on 31 December 2017, which then allegedly escalated tensions leading to riots in Pune and Mumbai. The activists were arrested and booked under the Unlawful Activities Prevention Act (UAPA).

The transfer of the case to the NIA is now being looked at as a “misuse” of the powers conferred upon the agency.

According to the procedures, for the NIA to take over a case from a state, a formal communication is usually sent to the MHA by the state requesting for a transfer of the case to the agency, following which a notification is issued and the investigation is formally transferred. The state police then formally hands over all the files related to the case to the agency.

But in this case, Section 6(5) of the NIA Act was invoked that permits the central government to direct the agency (NIA), suo motu, to investigate any offence if it feels that a crime is a scheduled offence fit to be probed by the NIA.

“This section gives power to the Centre to take over any investigation after any number of days, without taking consent from the state, which is otherwise required under the Delhi Police Establishment Act, under which the CBI falls,” said advocate Summer Sodhi, who had challenged the NIA Amendment Act 2019 in Chhattisgarh.

This section has always been there in the NIA Act of 2008.

“This power is given to the agency by the law, but the contention is that policing and law and order are state subjects. The agency can take the case but it needs consent of the state. Without state approval if a law provides such power then it becomes unconstitutional,” Sodhi said.

Following the information that the NIA has taken over the case, Maharashtra Home Minister Anil Deshmukh called a meeting of police officials involved in the investigation of the case along with the DGP to understand the extent of the probe.

Nationalist Congress Party (NCP) chief Sharad Pawar, just a few days ago, wrote a letter to the state home department, seeking an inquiry by a Special Investigation Team (SIT) into the case and had also asked for a probe against police officials for the manner in which the investigation was conducted.

The letter also called the arrest of activists in the Elgaar Parishad case “wrong and vengeful”.

Also read: Historians’ silence on Bhima Koregaon allowed BJP to brand it as ‘urban Naxalism’

The procedure

According to the NIA Act 2008, Section 6(4) allows the central government to direct the agency to investigate an offence if it deems it fit and if the offence comes under the scheduled offences that NIA can look into.

“The procedure has been followed. These powers were always there with the NIA as it exists since 2008 but the misuse of this provision has just started now,” Sodhi said.

Advocate Mehmood Pracha told ThePrint that particularly in this case, it is incorrect for the central government to take over the investigation at this stage, when the charge-sheet has already been filed. He said such a procedure “has not been followed in any other case.”

Pracha also laid emphasis on subsections 1,2 and 3 of Section 6 of the NIA Act, which provide the procedure for determining whether a case is fit to be investigated by the NIA. The provisions require the officer-in-charge of a police station to forward a report to the state government, in case he comes across any scheduled offences under the NIA Act.

The lawyer said that in this case, if the state police had invoked the UAPA, they should have sent a report to the central government, and then the Centre would have decided within 15 days, whether the case should be investigated by the NIA or should remain with the state.

This, he said, was not done by the state earlier.

Section 6, along with a few other provisions, has also specifically been challenged in the Supreme Court by the Congress-led Chhattisgarh government, asserting that it is “against federal spirit”.

The petition stated that the Parliament could not have enacted the law in the first place. This, it said, is because ‘police’ is a part of the state list under Seventh Schedule to the Constitution of India.

It also argued that the provisions of the law “leave no room of coordination and precondition of consent” from the state government. This, it said, “clearly repudiates the idea of state sovereignty as envisaged under the Constitution of India”.

What if Pune Police refuses to hand over files to NIA?

According to the NIA Act, when an order under Section 6(4) or 6(5) is passed, Section 6(6) bars the state government and its police officers from proceeding with the investigation and directs them to send the relevant documents and records to the agency.

So, in this case, despite the reluctance of the state police to hand over the probe to the NIA, they will have to do it under law, else it will be considered as a violation.

“The state police may have their reservations, but they will have to transfer all the case files, evidence to the NIA under law. This is not arbitrary, it is in accordance with the law,” an NIA officer said.

In any of the cases that are transferred to the NIA, the agency takes help from the state machinery.

Even in Maharashtra, the NIA does not have a set up to independently probe the case and would need assistance and support from the local police. In this case, however, if the police are unwilling to extend support, the case may stagger.

“It is always a team work. The NIA does not have the resources or the manpower to carry out a probe independently. If the police are not cooperating, it can become very difficult for the agency and it may lead to a delayed investigation,” a police officer from Maharashtra said.

The case

In a complaint filed by one Tushar Damgude on 8 January 2018 in Pune, Sagar Gorkhe, Ramesh Gaichor, Jyoti Jagtap and Deepak Dhengle of the Kabir Kala Manch, and Harshali Potdar and Dhawale of Republican Panthers were named for allegedly creating communal tension by delivering provocative speeches in Elgaar Parishad organised on 31 December.

An FIR was then filed against these activists for allegedly making inflammatory speeches.

In April, 2018, raids were conducted at the residences of several activists in Delhi, Nagpur and Mumbai.

In June 2018, an FIR was registered against the activists and after investigation, five activists — Surendra Gadling, Shoma Sen, Mahesh Raut, Sudhir Dhawale and Rona Wilson — were arrested by Pune Police and charged under the UAPA.

Subsequently, four more activists were arrested.

In November the same year, these nine activists and 10 others, who are allegedly operatives of the banned outfit CPI(Maoist) and also accused in the Elgaar Parishad case, were charged with a conspiracy to assassinate Prime Minister Narendra Modi and waging war against the nation and state of Maharashtra and acts of terrorism.

Draft charges were submitted by Pune Police against the 19 accused in the case at a special UAPA court in Pune.

Also read: Dalit activists among five arrested for ‘inciting’ Bhima Koregaon violence