Image source: https://bit.ly/3l3sTdv

This article has been written by Shoronya Banerjee, from Amity University, Kolkata. This article talks about the limitations of investigation agencies in India by focussing on two special investigation agencies.

Introduction

Broadly defined as a system that helps “to look into or examine the particulars of something carefully so as to discover something hidden, unique, or complex,” investigation according to Section 2(h) of the Code of the Criminal Procedure comprises of every proceedings carried out by the police or any prescribed authority, Magistrate for this case, required for collecting evidence. It includes collecting evidence, entering the place of crime, arresting offenders, etc. The apparatus of investigation is utilised by the government or such authorities to look into a potential violation of the law and try to find out the violation and reason behind it. 

With the growth of science, law and technology, the theft of information, counterfeiting, forgery, terrorism and so on have become extremely easy. Intelligent offenders while committing such crimes leave behind nothing and erase all possible evidence making the process of investigation difficult. The word ‘investigation’ has been derived from the Latin Word Vestigere which means to ‘track or trace’ comprising an intricate and deep scrutiny or examination. Officially there can be criminal investigations for uncovering or knowing the truth behind a crime to bring justice to someone, civil investigations could also be carried out for child custody, marital investigations, property matters, etc. Undercover investigations are also done frequently which requires one person to take on an identity for revealing a hidden truth, fact or crime.

Investigation agencies v. Intelligence agencies

Special investigating and intelligence agencies are mutually dependent on each other. Even though they could work together in certain cases, the level of information at both these agencies is of different types. While intelligence agencies track enemies, get confidential news and information for the country’s welfare, the investigating agencies work in front of the general public, unlike intelligence agencies, who have to maintain a certain level of secrecy. Wrong and unprofessional intelligence work could lead to major problems putting the country in grave danger. Whereas, an unprofessional investigation could lead to the acquittal and freedom of the accused. 

Special investigating agencies doing ‘Exclusive Investigation’ comprises, for instance, the Central Bureau of Investigation and the National Investigation Agency. They investigate cases that they take up cannot encroach upon the domain of intelligence agencies which develop sources and track the enemy to get secret information. 

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting

Investigation agencies in India

Being a democratic society along with an outbursting population the level of crimes have not only stepped into the category of ‘intelligent crimes’ but also has increased per lakh population over the years. Thereafter, a division of powers alongside the formation of investigation agencies are required to take up different kinds of cases and work in-depth to get hold of the offenders and facilitate efficient working. It’s not the police system only who has to provide for the security of the people but several law enforcement agencies who have to implement methods securing the enforcement of law and the security of the country and its citizens.

Investigating agencies being one of the law enforcement agencies which take up cases on murders, bank frauds, scams and scandals, riots, forgery, corruption, terrorism, etc. The 154th report of the Law Commission had recommended the separation of the investigation agency from the law and order wing because that would reduce external pressures and the scope of corruption as the agency would be under the protection of the judiciary. Also, the speedy investigation carried out by special and expert officers would do away with unjustified and injudicious prosecution and help with better disposal of cases. 

India has several investigation agencies like the Serious Fraud Investigation Office, the National Investigation Agency, Directorate General of Income Tax Investigation, Central Bureau of Investigation, Crime Investigation Department and so on. But along with the ample powers, loopholes in law and Acts governing these agencies also put forth the boundaries and limitations on the powers of these agencies. Sometimes such limitations also become important for controlling the immense power in their hands and stopping the agencies from becoming despotic. Instances have shown external corruption and strain in centre-state relations have been affected by the powers of these agencies. Limitations on the powers of 2 of these agencies have been discussed further.

The National Investigation Agency

The 26th November 2008 Mumbai terrorist attack had given rise to the formation of the National Investigation Agency Bill 2008 to create the National Investigation Agency to investigate matters affecting the sovereignty and the security of the country. It deals with the offences of terrorism, counterfeit currency, human trafficking, narcotics, etc. The divisions of NIA are Investigation Division, Policy Research and Coordination Division and the Administrative Division. The NIA is a counter-terrorism agency in India. Officers of NIA also have powers similar to that of the police 

The National Investigation Act, 2008

The National Investigation Agency Act, enacted in 2008, made the National Investigation Agency the sole federal agency and conferred upon it the power to take suo moto notice of any terror activities or movement in India and register a case. It can enter the state without the State Government’s permission and carry on with an investigation. The Central Government under this Act has been given the authority to form a special agency known as the National Investigation Agency for investigating or continuing legal proceedings of offences committed under the Act or as specified in its Schedule. Where Section 6 lays provisions for investigating scheduled offences, Section 9 requires the State Government to coordinate with the NIA in good faith.

The Congress-led Chhattisgarh government had filed a petition claiming the Act to be “ultra vires the Constitution” and raising objections against Sections 6(4), 6(6), 7, 8 and 10 of the Act. The NIA being stronger than the Central Bureau of Investigation gives power to the Central Government for going beyond the State Government agencies and carrying out investigations in states without any permission of the State Government. But in the light of 2019 instead of reviewing the act, the scope of the Act has been increased to arm the NIA with more powers.

Limitations

As governed by the NIA Act, 2008 along with the wide scope of powers NIA also had certain limitations beyond which it could not step :

Jurisdiction 

NIA only had the power of investigating offences as mentioned or scheduled under the Act. It would relate to offences caused under the Atomic Energy Act, 1962 and the Unlawful Activities Prevention Act, 1967. Beyond this, it could investigate any matters which required their interference becoming a great limitation for the Agency to function.

Dependence on the Central Government

Whenever a case is registered in a police station related to offences mentioned under the schedule of the NIA Act, the officer-in-charge of the police station forwards the case report to the State Government which thereafter gets forwarded instantly to the Central Government. Within 15 days of receiving such a report, the Central Government determines based on information available and received from authorities and sources, whether the offence falls under the Act or not and whether it is fit for the Agency to investigate. It is the Central government’s opinion that works before handing over a case to the NIA. So, no matter how important the case is, it is always the Central Government directing the NIAs work. Therefore, the conduct of NIA could sometimes become centre specific as per the centre’s convenience which could look over and fail to check over the cases against the centre. 

Special Courts

With every Scheduled Offence investigated by the Agency lookup by the Special Courts as under Section 13 of the Act, and the requirement of a speedy process of trial by the NIA, highlights the requirement for more Special Courts but by Section 11 of the Act the Central Government can only constitute one or more Special Courts for such area, case, class or group of cases, as specified by notifications. By Section 22 of the Act, the State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. This puts a limitation on the number of Special Courts to be formed which in turn hampers the prosecution and slows down the process of convicting an offender for which a whole lag in the system gets developed. Also under Section 22(3) confers jurisdiction of the Court of Session until a Special Court is constituted by the State Government. This does away with the whole purpose of forming Special Courts and also provides an excuse for the government’s lackadaisical manners of handling things. 

Constitutional validity can still be challenged 

In the case of Pragya Singh Chandrapalsingh … v. The State Of Maharashtra, a blast had taken place in  Malegaon, District Nashik. It was caused with the help of explosive devices fitted in an ‘LML Freedom Motor-Cycle.’ 6 innocent people had lost their lives and about 101 persons had been injured along with several damages caused to properties. Along with all the charges it was also contended in this case that the Parliament was not competent to form an agency for the investigation of matters relating to the policing stands as per the State List in the Seventh Schedule of the constitution. But the court rejected this argument by reading the entries in List-I and in List-III together. 

But even after the NIA Act’s constitutional validity was accepted by the court, the court did not specify clearly about the parliament only having the sole power of forming an agency for the investigating offences falling under the schedule of the NIA Act. The court had put forth an assessment of the state legislature and the parliament, both having the power to legislate in the matters of such offences. The Code of Criminal Procedure, 1973 vests the power of investigation on the officer to whom the report on the commission of such an offence is filed. As per Sections 154 and 155, the case being cognizable or non-cognizable does not matter, if an officer has received such a report then it is his duty to insert it in a register prescribed by the State Government.

It is yet believed that the constitution did not give the power of investigation of offences only to the Centre. It is considered that according to the Constitution framers of the federal system, the relation between the Central and the state governments would be immensely affected if such powers were conferred on the centre. Therefore, that is also the reason behind the CBI conducting investigations within the state territories only after receiving the consent of the particular state governments. Therefore, this stands out to be the reason the constitutionality of NIA is questioned often.

Amendments brought in 2019

The National Investigation Agency (Amendment) Bill, 2019 amended the National Investigation Agency (NIA) Act, 2008 to increase the scope of powers and working of the NIA for bringing in more efficiency and a more progressive system of safety and security.  The National Investigation Agency when governed by the National Investigation Agency Act, 2008 would allow the NIA to investigate and prosecute only specific offences listed by the Act and not beyond it. This Bill expanded the NIA’s jurisdiction by allowing them to investigate offences related to human trafficking, counterfeit currency or bank notes, producing and selling prohibited arms, cyber-terrorism, and offences committed under the Explosives Substance Act, 1908. This also confers powers on the officers of NIA synonymous to that of police officers investigating such offences, across India. This amendment also gives the officers of the NIA power to investigate scheduled offences committed outside India, with reference and compliance to international treaties and domestic laws of other countries.  This Bill also allows the central government to designate Sessions Courts as Special Courts for the trial of scheduled offences.  

This amendment has till date faced a lot of criticisms especially with the experts coming up with the view of how these amendments go against the federal nature of our Constitution and make the NIA extremely powerful with it not requiring the permission of a state while attaching a property in that state in connection with terrorism. People also challenged the amendment as the original NIA Act was being challenged in several courts. The new amendment has increased the scope of NIA doing away with a lot of its limitations and making it strong. 

Central Bureau of Investigation 

The Central Bureau of Investigation (CBI) serves as a Criminal investigation body and a National intelligence and security body. The CBI members along with the police officers of the Union territories where the offence took place are vested with the power, duties and responsibilities to carry out an investigation on the offence notified by the Central Government and arrest any person involved. The CBI has its anti-corruption division dealing with corruption and fraud carried out by public servants. Its special crimes division works with terrorist attacks, homicides, bomb blasts, crimes by the underworld and so on. The  Economic Crimes Division works with the bank and finance-related frauds, violation of terms of imports and exports and smuggling of drugs, narcotics, etc. 

Limitations

Jurisdiction

The demand for giving CBI statutory powers upon the employees of the Central Government situated at any place in the country was with the expectation of better working and transparency of the government. But such a demand has not been granted yet as the State Governments have strongly opposed this as it would take away the powers of policing conferred on them. This, therefore, stands to be the greatest limitation on the powers of the CBI. This ground of resistance by the State Government is often considered to be a way of covering the shortcoming of their governance or a result of tension in centre-state relations. States like Karnataka, Nagaland, West Bengal and so on have become reclusive of the CBI and refused to work with them. 

A groundbreaking showdown between the Kolkata Police and Central Bureau of Investigation had begun on 3rd February 2019 when 40 CBI officials reached the residence of city Police Commissioner Rajeev Kumar for investigation. Considering the Supreme Court’s judgement of authorizing the CBI for scrutinizing all the chit fund scams and looking into their greater conspiracies and with the belief of crucial documents being missing and manipulated, the CBI had come forth to interrogate the Kolkata Police Commissioner. This was further taken into court with the appeal that the police and public order were ‘State Subjects’ in the Constitution, which was the police force under the political executive of that state having the sole power of operating without the intervention of the Centre. The Centre could only intervene with the State Government’s permission. The Supreme Court on 5th February ruled out the arrest of Mr Rajiv Kumar. The Supreme Court ordered Mr Kumar to meet the CBI and their questions in a neutral venue. So even if there was any validity in the charges put forth by the CBI, its limited power overrode it. 

No constitutional backup 

The Central Bureau of Investigation obtains its powers from the Delhi Special Police Establishment Act, 1946. The CBI being constituted under an executive order of the Union Home Ministry in 1963 without any constitutional backing led the retired Gauhati High Court chief justice I.A. Ansari questioned the legitimacy of the CBI as it threatened the federal structure of India. ‘Investigation’ as defined under Entry 8 of the Constitution does not confer power on the CBI to interfere in a state and investigate crimes committed there.

In the case of Navendra Kumar vs The Union Of India & Ors, the CBI had registered a case against the petitioner, an employee of the Mahanagar Telephone Nigam Limited, New Delhi, under Sections 120-B  and 420 of IPC and Section 13(1)(d)  along with Section 13(2) of the Prevention of Corruption Act, 1988. The constitutional validity of the CBI, its powers under Section 154 of the Code of Criminal Procedure, to arrest a person, investigating offences, filing charge-sheets against offenders and prosecuting them were all challenged. Another important question put forth was whether the CBI had the constitutional power to investigate crimes and if the  Delhi Special Police Establishment Act, 1946 authorizes the Union Home Ministry to form a ‘police force’ in the name of CBI?

The writ petition contended that the CBI  was not a statutory body. It did not have any Statutory backup and was formed under an Executive Order of the Ministry of Home Affairs. Police, a State subject within the limits of the Constitution of India only allows a State Legislature to legislate on the subject of police as per the Entry No. 2 of List-II (State List) of the Seventh Schedule of the Constitution. The Central Government could not have taken away the power belonging to State legislatures, for establishing an investigating agency known as CBI, affecting the fundamental rights guaranteed under Part III of the Constitution of India. In this case, it was held that even if the DSPE Act, 1946, was a valid piece of legislation, the CBI was held to be neither an organ nor a part of the DSPE and therefore, could not be treated as a ‘police force’ under the DSPE Act, 1946.

Limited scope for CBI to investigate

Even though the CBI derives its powers from the Delhi Special Police Establishment and because Law and Order is a State subject have the jurisdiction to investigate all crimes but because of restricted resources the CBI can only investigate and interfere in certain specific matters. The matters could include:

  • Cases against Central Government employees.
  • Cases involving the Central Government’s financial interest.
  • When the State Government requests the Central Government for CBI intervention.
  • When the Supreme Court orders CBI to get involved in investigations.
  • Cases involving several official agencies and having interstate and international consequence and aftermath. 
  • When there is consent notified by the State Government under Section 6 of the DSPE Act and the Central Government publishes notification under section 5 of the DSPE Act, etc.

Conclusion

With the topmost principle of the law enforcing agencies being securing the safety and integrity of the nation and its people, through time India has seen and worked with the help of investigation agencies for combatting terrorism, corruption, scams, etc. But often limitations on the powers of these agencies lead to inefficient working and the agencies getting tangled in external corruption. But again extension of the scope of their powers with no limitations lead to despotic investigation agencies working for the authorities and against the people. So both of these extreme situations are not required by the nation, India requires a balance in the powers of the investigation agencies for better working and facilitating the welfare of the nation without any prejudices or biases towards any person or authorities. 

References 


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here