It is a tough task for State agencies to get back cases from the National Investigation Agency (NIA) as only cases of “lesser gravity” or the ones in which fresh evidences to prove the innocence of the accused emerge are send back.
The legal position on the return of the NIA cases to State agencies assumes significance in the wake of the State government approaching the Union Home Ministry to get back the Pantheerankavu Maoist case.
To return the case, substantial evidence and set of facts that could reverse the hitherto findings or proving the innocence of the accused should emerge during the course of the investigation.
Lesser gravity
There should also be evidence to compel the agency to arrive at the conclusion that the case in question is of lesser gravity, which does not require the attention of the NIA and could be very well be investigated by a State agency, sources said.
In the Pantheerankavu case, the Central government had already decided that it would be investigated by the NIA considering the gravity of the case. The NIA takes over the investigation in a case on a directive from the Union Home Ministry.
It is the gravity of the offence involved in the case that justifies the NIA to probe a case, pointed out legal sources. Chief Minister Pinarayi Vijayan had informed the State Assembly on Wednesday that he had written to Union Home Minister Amit Shah to transfer the investigation against Alan Shuhaib and Thaha Fasal, the two youngsters who were booked on charges of Maoist links.
Incidentally, judicial and government sources indicated that there were no instances of return of cases in the recent history of the State.
The State government has sought the return of the case by invoking Section 7 of the NIA Act, which deals with the “power to transfer investigation to the State government.” The Act states that the agency can transfer the case to the State government for investigation and trial of the offence with the previous approval of the Central government.
Going by the provisions of the Act, it is the NIA and not the Ministry that should take a call on returning the case.
If the Union Home Ministry, which ordered the NIA probe into the case, forwards the letter seeking to return the case, the agency may begin the exercise of evaluating the gravity of the offence.
Currently, there are a set of facts and evidence related to the case before the agency.
There are also court orders which made out prima facie offences in the case, which led to the denial of the bail for the accused. If convinced, the agency can return the case to the State agencies, sources said.
The slapping of the Unlawful Activities Prevention Act (UAPA) on the youth had created a political turmoil in the State.
Serious difference of opinion surfaced among the CPI(M) leadership over the case and some of the Polit Bureau members of the party had publicly expressed their dismay over the LDF government charging the youth, maintaining that they were CPI(M) members, with the UAPA, which the party itself had termed a draconian piece of legislation.
