Delhi High Court refuses to entertain PIL for NIA probe into CJP protests; plea withdrawn

The Delhi High Court on Friday refused to entertain a public interest litigation (PIL) seeking a probe by the National Investigation Agency (NIA) into the Cockroach Janta Party (CJP) protests and its march to parliament on July 20.

A Bench of Chief Justice DK Upadhyaya and Justice Tejas Karia said that an order for an NIA probe was for the Central government to decide and not the Court.

"We can't substitute our satisfaction to the satisfaction of the Central government," the Bench said.

Even as the petitioner's counsel and lawyers for the Central government urged the Court to issue notice in the matter, the Bench began to order,

"So far as prayers 1 and 2 is concerned a direction has been sought directing NIA or any other specialised investigating agency to investigate the incident dated July 20 which according to the petitioner was an attempt to block the Parliament House..."

At this juncture, Solicitor General of India (SG) Tushar Mehta, appearing for the Central government, asked the petitioner to withdraw the plea.

"My lords may not record all this..If I were the petitioner, I would have withdrawn this...Mr. please withdraw the petition."

The petitioner then agreed to withdraw the plea.

At the outset of the hearing, the government urged the Court to issue notice in all matters.

However, the Court, addressing the petitioner, asked,

"Please tell us what is the statutory mechanism for invoking NIA's jurisdiction. NIA is not an inquiry agency, it is investigating agency. The question of investigation only comes after there is an FIR...At this juncture, when there is an FIR, recourse to Section 6 will be taken by statutory authority. How can you maintain this petition?

What is an investigation? It is conducted of a reported crime. There has to be an FIR. If any scheduled offence is to be investigated by NIA, then a recommendation is made to the Centre and the Centre takes a call. How can you ask us to get an inquiry conducted and then get it investigated by the NIA?"

The counsel for the petitioner then argued,

"My submission is falling on the gravity of offence. It is a fit case."

The Court replied,

"The conclusion whether it is a fit case or not proceeds on two things. There has to be an FIR, thereafter the police officer will forward it to State government and State will send it to Centre. If the Centre finds it fit then it can refer the investigation of FIR to the NIA. You are asking us to form an opinion that this is a fit case. This job has been entrusted to the Central government. Can we substitute its substance regarding fitness of the case to be investigated by NIA?"

The lawyer then submitted that FIRs have been registered against the unruly mob and that the situation is affecting the whole of India.

CJ Upadhyay was adamant.

"We are strictly confining the matter to legal parameters. You have to satisfy us, can the court substitute its satisfaction to the satisfaction of the Central government?" the CJ said.

The counsel then said,

"The Centre can file a reply. Learned SG said notice may be issued. "

When the petitioner cited the judgment in the Padmavat film case, the Court asked the counsel not to confuse issues.

"For you third prayer, you approach the authorities, they will take a call. There is a mechanism available in law, you take recourse to that mechanism," the Court stated.

The counsel then said that his prayer was for NIA or any other specialised agency to investigate the issue across India or beyond the boundaries of this country.

"Roads are blocked, metro stations are closed. The fundamental right of people..."

The Court made it clear that it would not go into all those things.

"We are only on legal issues. That is a matter of fact that needs an inquiry to be conducted under direction and supervision of the competent authority. We can't reflect on anything merely by going through videos and photographs."

When counsel insisted for a direction to the Centre and invoked fundamental rights, the Court said,

"Why should we do it? We are aware of the fundamental rights. Here, we are concerned with the legal aspect."

In the post-lunch session, SG Mehta made arguments for the Central government.

"My lords' interpretation of Section 6 NIA Act is correct but if he is talking about any other agency..."

The Court insisted that such a call has to be taken by the authorities. SG Mehta then submitted,

"My lords, this appears to be a case of cross FIRs. Earlier, my lord had issued notice. Let these be heard together."

The Court responded,

"Mr Solicitor, the prayer is for investigation. Which agency will investigate is a call to be taken by authorities...Again, the law provides as to when CBI can take over. It's not as if we can't direct CBI. So far as NIA is concerned, the situation is different. The CBI investigation depends on the progress made by the primary agency. If the Court is not satisfied with the primary agency's investigation and the progress, then the Court can order CBI probe."

The petitioner's counsel then said,

"I am asking you to ask for a status report from the police."

The Chief Justice replied,

"The FIR has been registered only two-three days ago. This vandalism you are talking about is also in the notice of the authorities, the law is there, they will take action."

When the counsel once again cited road blockages etc, the Court said,

"That all has to be left to the administration. There is a (Supreme Court) judgment, they will follow it."

Additional Solicitor General (ASG) Chetan Sharma then pressed for the third prayer, for the Court to seek a status report on the matter.

The CJ then said,

"Are you saying you are not following this judgment of the Supreme Court?"

When ASG Sharma insisted, the Court said,

"Mr Sharma, if you think the matter is to be referred to NIA you can do so. We are not curtailing you. There are judgments. There is authority available with you, you deal with it as efficiently as you should. Follow the SC judgments, you are under mandate."

"My lordship issued notice under public law doctrine (in matters about police brutality). This could also, dehors prayer 1 and 2, be also be listed on the same day. Then my lords will have a complete picture before you," the ASG urged.

SG Mehta added,

"I am not saying the earlier petitioners who came day before yesterday are right. I am not saying this petitioner is right. They have counter claims."

The Court, however, refused to pass an order, stating,

"Consider it. We are asking them to approach you."

The petitioner's counsel made one last attempt, saying,

"In earlier petition when my lords issued notice, it was qua the perpetrators and my lords issued notice. Here, public officials and police have sustained injuries. There is molestation of top journalists. Female journalists groped and attacked. Who will examine all this?"

The Court sternly said,

"The respondents will examine. Please don't try to draw this dichotomy. Don't go there. Please, I request you."

The petition, filed by Satish Kumar Aggarwal, a former Vice-President of the Akhil Bharat Hindu Mahasabha, alleged the agitation was politically driven and backed by foreign elements with the objective of destabilising the country. It also claimed that "external funding" played a role in the agitation.

Aggarwal sought directions to the NIA or another specialised agency to investigate the protest, take over all FIRs registered by Delhi Police in connection with the incident, and identify and prosecute those allegedly responsible for violence, vandalism and obstruction of emergency services.

The plea contended that the demonstration was not a genuine student movement but part of a wider conspiracy.

"It is pertinent to mention that, the so-called protest is not, in substance, a genuine protest by students or for student-related concerns. Rather, it appears to be a part of a larger conspiracy allegedly orchestrated by anti-national and foreign elements with the purported intention of destabilizing the country by exploiting financial influence and monetary resources," stated the petition.

The plea added that the July 20 protest witnessed obstruction of public movement, damage to public and private property, attacks on journalists, injuries to police personnel and attempts to proceed towards parliament.

It also referred to reports about activist Sonam Wangchuk's alleged association with certain foreign organisations, contending that it requires investigation by competent authorities.

"The said so-called protest, ostensibly organized on the pretext of demanding the resignation of the Union Education Minister, has witnessed the gathering and participation of individuals and elements whose activities and statements appear to be motivated by an anti-India agenda,” the plea claimed.

Advocate Barun Kumar Sinha appeared for the petitioner.