Thangaraj @ Thamilarasan vs State By on 2 September, 2014

[Cites 32, Cited by 4]

Madras High Court

Thangaraj @ Thamilarasan vs State By on 2 September, 2014

Bench: P.R.Shivakumar

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2014
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.R.C(MD)No.370 of 2014

1. Thangaraj @ Thamilarasan
2. Kaviyarasan @ Raja
3. Kalai @ Kalailingam 	... Petitioners/Respondents/Accused NO.2 to 4

Vs.

State by
The Deputy Superintendent of Police,
Q-Branch CID,
Ramanathapuram Range	 ... Respondent/Petitioner/Complainant

Prayer
	Petition filed under Sections 397 of the Code of Criminal Procedure,
to call for the records in the order dated 25.06.2014 in Cr.M.P.No.Nil of
2014 (Crime No.10 of 2014), on the file of the District Munsif cum Judicial
Magistrate's Court, Thiruppattur, Sivagangai District and quash the same.

!For Petitioners	... Mr.M.Radhakrishnan
				For Mr.B.Pugalenthi
^For Respondent		... Mr.K.Chellapandian
				Additional Advocate General
				Assisted by Mr.T.Mohan
				Additional Public Prosecutor
	  		
:ORDER

The petitioners in this Criminal Revision Case are the accused ranked as A.2 to A.4 in Cr.No.10 of 2014 on the file of the Nachiyapuram Police Station, Sivagangai District. The case was registered based on the complaint of one J.Rameshkannan, Sub-Inspector of Police, Q-Branch Crime Investigation, Sivagangai. Based on the said complaint, a First Information Report was drawn on 25.02.20114.

2. In the complaint, it had been stated that on 25.02.2014, at about 13.00hours, the defacto complainant and one Sellam (H.C.703) were on the look out for the activities of suspicious persons while they were engaged in guard duty near Lakshmi Illam, the place wherein the former Finance Minister Thiru.P.Chidambaram used to stay on his visit to the said place and that at that point of time, they came across the bit notices printed on A4 size papers in the name of "Tamil Nadu Liberation Army"(jkpH;ehL tpLjiyg;gil) containing the materials, which are seditious, according to the police.

3. During the course of the investigation, the police were able to identify a number of persons and the petitioners herein were shown as A.2 to A.4 in the case diary file. They were arrested by the police on 24.03.2014 and were produced before the learned District Munsif cum Judicial Magistrate, Thiruppattur, Sivagangai District along with their remand report for remand on 25.03.2014.

4. Subsequently, the Deputy Superintendent of Police, Thiruppattur Sub- division, Sivagangai District submitted an alteration report altering the F.I.R. from one for the offence under Section 153(A)(1) I.P.C. to the offences under Section 153(A)(1) I.P.C. r/w Sections 3 and 5 of Explosive Substances Act, 1908. Thereafter, the investigation was taken over by the Q- Branch CID, Ramanathrapuram Range and one more alteration report was submitted altering the case for the offences under Sections 120-B I.P.C. r/w 121, 121-A, 124-A and 153(A)(1) I.P.C., Section 3 and 5 of Explosive Substances Act, 1908 and Section 15 r/w 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. Based on the alleged receipt of information, one Thiruselvam belonging to the said Organisation was arrested by the Inspector of Police, Othakadai and his statement revealing their involvement in planting pipe bombs was recorded.

5. The first petitioner was arrested on 24.03.2014 and produced before the learned District Munsif cum Judicial Magistrate, Thiruppathur on 25.03.2014 for remand. Kaviyarasan @ Raja and Kalai @ Kalailingam (the petitioners 2 and 3) were produced on PT warrants as they had been arrested in an other case and all of them were remanded by the learned District Munsif cum Judicial Magistrate, Thiruppathur and all of them were remanded to judicial custody by the first remand order dated 25.03.2014 in Cr.No.10 of 2014. Thereafter, the remand came to be extended by periodical orders upto 90 days. Till the completion of 90 days, the petitioners did not make any application for their release on bail. After the expiry of the period of 90 days, there was no order for three days either extending the period of remand or releasing the petitioners on bail. However, since there was no order directing their release on bail, they continued to be kept in prison. On 25.06.2014, they were once again produced before the learned District Munsif cum Judicial Magistrate, Thiruppathur along with the report of the Assistant Public Prosecutor attached to the said Court for extension of the remand beyond 90 days. Based on the report, the learned District Munsif cum Judicial Magistrate, Thiruppathur passed an order of extension of remand on 25.06.2014 for 30 days i.e. upto 24.07.2014.

6. Thereafter, the petitioners chose to file a petition under Section 167(2) Cr.P.C. r/w 43-D of the Unlawful Activities (Prevention) Act, 1967 Act praying for their release on statutory bail. The said petition came to be filed on 05.07.2014 and the same was taken on file as Crl.M.P.No.3832 of 2014. The learned District Munsif cum Judicial Magistrate, Thiruppathur, by order dated 05.07.2014 itself dismissed the said petition holding that the power of Magistrate to extend the period of remand pending investigation had been enhanced to 180 days. After having suffered an order of dismissal of the said bail petition, the petitioners have chosen to challenge the order of remand extension passed by the learned District Munsif cum Judicial Magistrate, Thiruppathur in the above said case on 25.06.2014 extending the remand beyond 90 days.

7. Notice before admission was given to the respondent and the respondent has entered appearance to resist the Criminal Revision Case.

8. The learned Additional Public Prosecutor represented the respondent initially. Subsequently, it was taken over by Mr.K.Chellapandian, learned Additional Advocate General. Accordingly, the arguments advanced by Mr.M.Radhakrishnan, learned Counsel arguing on behalf of Mr.P.Pugalenthi, Counsel on record for the petitioners and the arguments advanced by Mr.K.Chellapandian, learned Additional Advocate General, representing the respondent police, are heard. The grounds of revision, the copy of the impugned order and the original records sent for from the Court below are also perused.

9. The only contention raised on behalf of the petitioners is that the impugned order of remand extension dated 25.06.2014 was an order passed by the Judicial Magistrate without having jurisdiction and that hence, the order is liable to be set aside by this Court not only in exercise of its power of revision under Section 397 Cr.P.C. r/w Section 401 I.P.C. but also under Section 482 Cr.P.C. and Article 227 of the Constitution of India, which are intended to have continued supervision over the Subordinate Courts to ensure that the Subordinate Courts do not exercise any jurisdiction not conferred on them or exceed the jurisdiction conferred on them or fail to exercise jurisdiction conferred on them.

10. Initially, an attempt was made to question the maintainability of the revision on the ground that an order extending the remand should be construed to be an interlocutory order and hence, Sub Clause (2) of Section 397 Cr.P.C. shall be a bar for entertainment of such a revision. As an answer to the said contention, the learned Counsel for the petitioners would contend that the challenge is made to an order of the learned District Munsif cum Judicial Magistrate extending the remand of the petitioners beyond statutory period; that such an order cannot be termed as an interlocutory order as contended by the learned Additional Advocate General and on the other hand, the same is an order deciding the right of the petitioners to seek a statutory bail on the expiry of the period contemplated under Section 167(2) Cr.P.C. and that therefore, the present revision will not come under prohibition contemplated under Sub Clause (2) of Section 397 Cr.P.C.

11. De hors the said contention, it is also the contention of the learned Counsel for the petitioners that even otherwise, when the order makes inroads into the personal liberty against guarantee provided under the Constitution of India and such an order is challenged on the ground of absence of jurisdiction, the validity of the said order can be tested very well in exercise of the inherent power of the High Court under Section 482 Cr.P.C. or in exercise of the power of the continuous superintendence over the lower Courts by the High Court under Article 227 of the Constitution of India.

12. It is the further contention of the learned Counsel for the petitioners that in raising such contention, he does not mean that the petition ought to have been filed under Section 482 Cr.P.C. or under Article 227 of the Constitution of India and that on the other hand in appropriate cases, even in a revision filed under Section 397 r/w 401 I.P.C., such a contention can be raised and the High Court can also exercise such a power under either of those provisions. The above said contention of the learned Counsel for the petitioners is quite appealing and the same cannot be brushed aside as untenable.

13. The facts of the case are admitted for the present. The case came to be registered when the police came across a pamphlet printed in the name of "Tamil Nadu Liberation Army" (jkpH;ehL tpLjiyg;gil) containing alleged seditious materials. Initially the case came to be registered against unnamed accused persons. Subsequently, one Thiruselvan, who has been ranked as Accused No.1 in the crime number concerned in this case, was arrested by the Inspector of Police, Othakadai Police Station, in connection with another case viz., Cr.No.47 of 2014 of Othakadai Police Station. After his arrest, the investigation of the said case revealed the fact of his involvement in the case in Cr.No.10 of 2014 and also the involvement of the petitioners 1 to 3 (Accused Nos.2 to 4). Thereafter, the first petitioner (A.2) was arrested and was produced for remand in the said case (Cr.No.10 of 2014) on 25.03.2014. The petitioners 2 and 3 (A.3 and A.4) were arrested in connection with the above said Cr. No.47 of 2014 of Othakadai Police Station and they were produced on P.T. warrants before the learned District Munsif cum Judicial Magistrate, Thiruppathur in Cr.No.10 of 2014 of Nachiyapuram Police Station, on 25.03.2014. All the three petitioners came to be remanded on 25.03.2014. Periodical remand extensions were also made.

14. There is no quarrel over the authority of the learned District Munsif cum Judicial Magistrate to pass initial remand order and also the orders of remand extension upto a period of 90 days from the date of initial order of remand, which expired on 22.06.2014. According to the petitioners, the further remand made by the learned District Munsif cum Judicial Magistrate on 25.06.2014 was without jurisdiction and the learned District Munsif cum Judicial Magistrate, Thriuppathur, on the expiry of 90 days from the date of initial remand ought to have informed the petitioners that they were entitled to be released on statutory bail under Section 167(2) Cr.P.C. provided they were prepared to furnish surety, which the learned District Munsif cum Judicial Magistrate failed to do.

15. According to the submissions of the learned Counsel for the petitioners, the remand extension order passed on 25.06.2014, without doing what was expected on the learned District Munsif cum Judicial Magistrate as per Section 167(2) Cr.P.C., was without jurisdiction and the same would amount to an act of passing of order exceeding the jurisdiction conferred on the learned District Munsif cum Judicial Magistrate.

16. As an answer to the said contention, the learned Additional Advocate General would submit that the power of the Magistrate to grant extension of remand upto 90 days alone shall be confined to ordinary cases of I.P.C. offences and that whenever a person is arrested and remanded for a schedule offence i.e. found in the Schedule of the National Investigation Agency Act, or offences under the Unlawful Activities (Prevention) Act, 1967, Section 167(2) Cr.P.C. shall stand amended by the corresponding provision of the Unlawful Activities (Prevention)Act, 1967 viz., Section 43-D of the said Act. According to the submissions made by the learned Additional Advocate General, when a person is accused of such offences, the power of Magistrate to pass an initial order of remand shall not be confined to 15 days and the period of initial remand and the subsequent extensions from time to time may extend upto 30 days but shall not exceed 30 days at a time; that the total period of extension of remand before the completion of the investigation shall stand extended to 90 days, in respect of all the offences under the Unlawful Activities (Prevention) Act; that as per Section 43-D of the said Act, a further proviso to Section 167(2) Cr.P.C. should be read into the said Section, conferring power on the Magistrate to extend the remand before the completion of investigation upto 180 days and that in such cases, the right of statutory bail will not arise till the expiry of 180 days.

17. Based on the above said submission, the learned Additional Advocate General would contend that the learned District Munsif cum Judicial Magistrate, Thiruppathur had not committed any error or mistake, much less the act of exceeding his jurisdiction in extending the period of remand beyond 90 days, when such extension beyond 90 days was made based on the report of the Assistant Public Prosecutor attached to his Court. The learned Additional Advocate General, drawing the attention of this Court to Section 43-D of the Unlawful Activities (Prevention)Act, 1967, would submit that the term 'Court' appearing in the proviso to Sub-section 2(b) of Section 43-D of the said Act and the term 'Public Prosecutor' appearing in the said proviso would mean even the Court of Judicial Magistrate and the Assistant Public Prosecutor respectively.

18. The above said contention of the learned Additional Advocate General is sought to be refuted by Mr.M.Radhakrishnan, learned Counsel for the petitioners, by drawing the attention of this Court to the definition of 'Court' found in Section 2(d) of the said Act viz., the Unlawful Activities (Prevention) Act 1967. According to the submissions made by the learned Counsel for the petitioners, Clause (a) of Sub-Section 2 of Section 43-D of Unlawful Activities (Prevention) Act 1967 does not alter the reference to the Magistrate found in Section 167 Cr.P.C. and it simply enhances the period of initial remand and subsequent remand extensions to 30 days from 15 days and also the maximum period of remand extension from 90 days and 60 days found in Section 167(2) of Cr.P.C. depending upon the nature of offences, uniformly to 90 days and that a remarkable deviation from the reference to the Magistrate was made deliberately by the Legislature in the proviso to Clause (b) of Sub- Section 2 of Section 43-D of Unlawful Activities (Prevention) Act, 1967, by giving the power not to the Magistrate, but to the "Court" to extend the period of remand beyond 90 days and specifically making it clear that such an order of remand extension may be made on being satisfied, based on the report of the Public Prosecutor indicating the progress of the investigation and the specific reason for the detention of the accused beyond the period of 90 days. The said proviso, as rightly pointed out by the learned Counsel for the petitioners, refers to the "Court" as distinguished from "Magistrate" found in Section 167 Cr.P.C.

19. Section 2(d) of the Unlawful Activities (Prevention) Act, 1967 defines the "Court"

as follows:

"2(d) "Court" means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under Section 11 or under Section 21 of the National Investigation Agency Act, 2008."

The inclusive definition was inserted by an amendment made in 2008.

20. It is the contention of the learned Counsel for the petitioners that in case, a Special Court is constituted under the National Investigation Agency Act 2008, only such Special Court shall have the power to try the offences and hence, the Special Court alone shall have the power to extend the remand beyond 90 days under Section 43-D of the Unlawful Activities (prevention) Act, 1967.

21. A meek attempt was made by the learned Additional Advocate General to contend that unless and until a Special Court is constituted for the area, the ordinary Courts having jurisdiction over the place of occurrence shall have the power to try the cases and the ordinary Judicial Magistrates shall have the power to pass orders of remand and also orders of remand extension not only upto 90 days as per Clause (a) of Sub-Section 2 of Section 43-D of Unlawful Activities (Prevention) Act 1967, but also beyond 90 days in accordance with the proviso to Clause (b) of Sub-Section 2 of Section 43-D of Unlawful Activities (Prevention) Act 1967.

22. This Court is not in a position to accept the above said contention of the learned Additional Advocate General to be a sound proposition. Of course, the "Court" as defined in Section 2(d) of the said Act, is not confined to Special Courts constituted under the National Investigating Agency Act, 2008. It also does not specifically refer to Sessions Court. It simply refers to the Criminal Court having jurisdiction under the Code of Criminal Procedure to try the offences under the Act. Therefore, in order to ascertain what is the proper Court having jurisdiction to pass the order of remand extension beyond 90 days, the consideration of the offences alleged is very much relevance. The offences made punishable under Unlawful Activities (Prevention) Act and the Explosives Substances Act are not the offences which are specifically mentioned in the First Schedule of Cr.P.C. classifying the offences as Cognizable or non-Cognizable, bailable or non-bailable and triable by which Court. The Schedule-I of Code of Criminal Procedure divides the offences in two parts. The first part deals with the offences under I.P.C. and the second part deals with the offences against other laws.

23. Here is a case, in which, the accused are alleged to have committed not only the offences under Sections 120B I.P.C. r/w 121, 121-A, 124-A, 153(A)(1) I.P.C., but also, the offences under Sections 3 and 5 of Explosive Substances Act, 1908 and Sections 15 r/w 16, 18 & 20 of the Unlawful Activities (Prevention)Act 1967. Of Course, the offences under Sections 120B I.P.C. r/w 121, 121-A, 124-A, 153(A)(1) I.P.C. are triable by a Magistrate of I Class as per the Schedule. But, the other offences are governed by Part-II of the Schedule. The offences against other laws are divided into three categories viz., Sl.

No. Punishment By what Court triable

1. punishable with death, or imprisonment for life or imprisonment for more than 7 years the Court of Sessions

2. punishable with imprisonment for 3 years and fine, but not more than 7 years triable by a Magistrate of the first class

3. punishable with imprisonment for less than 3 years or with fine only any Magistrate

24. The offences alleged under Sections 15 r/w 16, 18 & 20 of the Unlawful Activities (Prevention)Act 1967 and Sections 3 and 5 of Explosive Substances Act 1908 are punishable as follows:

(a) Under the Unlawful Activities (Prevention) Act, 1967:

(i) Section 15 r/w Section 16 - Punishable with death or imprisonment for life and also fine; a minimum punishment of not less than 5 years has also been prescribed.

(ii)Section 18 - Punishable with imprisonment which may extend to imprisonment for life and also fine with a minimum sentence of 5 years imprisonment.

(iii) Section 20 - Imprisonment for life and fine.

(b) Explosives Substances Act:

(i) Section 3: Punishable with life or rigorous imprisonment which shall not be less than 10 years and also fine.

(ii) Section 5: Shall punishable with imprisonment for a term which may extend to 10 years and also be liable to fine.

(iii) Aggravated forum under Section 5(b) punishable with imprisonment for life or imprisonment for life or imprisonment upto 10 years and fine.

25. In view of the above said provisions, this Court has to accept the contention of the learned Counsel for the petitioner that the "Court" empowered to order extension of remand of the accused beyond 90 days is nothing but a Special Court established under the National Investigating Agency Act or the Sessions Courts. It is also an admitted fact and it cannot be disputed because the provision in the National Investigating Agency Act itself provides that the Special Court shall have a Judge in the cadre of Sessions Judge. In this regard the relevant provisions are reproduced hereunder for the purpose of correct understanding of the provisions.

(A). Section 167 (1) and (2) of Cr.P.C. reads as follows:

"167.Procedure when investigation cannot be completed in twenty four hours. (1)Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole ;

and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days ; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days,or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

[Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail ;].

[Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be;

Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution;

(B). Section 43-D of the Unlawful Activities (Prevention) Act, 1967 reads as follows:

43-D. Modified application of certain provisions of the Code-

(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub- section (2),-

(a) the references to "fifteen days", "ninety days" and sixty days", wherever they occur, shall be construed as reference to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:-

"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody."

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that -

(a) the reference in sub-section (1) thereof -

(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government",

(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and

(b) the reference in sub-section (2) thereof, to "the State Government"

shall be construed as a reference to "the Central Government or the State Government, as the case may be".

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and 96), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."

26. Now we can reproduce Section 167 Cr.P.C. as amended by Section 43-D of the Unlawful Activities (Prevention) Act 1967 as follows, so far as they relate to offences under the said Act. The changes made by Section 43-D of the Unlawful Activities (Prevention) Act 1967 with regard to the offences against the provision of the said Act are highlighted with bold letters.

"167.Procedure when investigation cannot be completed in twenty four hours. (1)Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding thirty days in the whole ;

and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of thirty days ; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) ninety days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days,or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter ;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution;

Provisos as introduced by the proviso of Section 43-D of the Unlawful Activities (Prevention) Act, 1967.

"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody".

(The other sub-clauses are omitted as they are not necessary)

27. A comparison of the said provisions will make it clear that the legislature intended to make a distinction between 'Magistrate' referred to in Section 167(2) of the Code of Criminal Procedure amended by Section 43-D of the Unlawful Activities (Prevention) Act, 1967, and the "Court" as provided under the proviso to Sub Clause 2(b) of Section 43-D of the Unlawful Activities (Prevention) Act, 1967. By referring to the term 'Court', this Court does not mean that it will always mean Sessions Court. The "Court" means the Court which does have the power to try the particular offence alleged. Suppose, all the offences alleged under the Special enactments are triable by a Court of Magistrate, then, the term "Court" will, no doubt, be a court of Judicial Magistrate and in such a case alone, the Judicial Magistrate shall have the power to extend the period of remand beyond 90 days, as per Section 167(2) Cr.P.C. as amended by the proviso to Sub-Section 2(b) of Section 43-D of the Unlawful Activities (Prevention) Act, 1967. In the case on hand, except one I.P.C. offence(an offence punishable under Section 120-B r/w 153(A)(1) of I.P.C.) all other offences are admittedly triable by a Court of Session. The learned District Munsif cum Judicial Magistrate cannot be construed to be the Court having jurisdiction to try the case. The Court having jurisdiction to try the case should be distinguished from the Court having the jurisdiction or power to commit the accused for trial or to pass the initial orders of remand/remand extension before the case is committed. As the provisions of law make it clear that the power to order extension of remand beyond 90 days has been given to the Court having jurisdiction to try the case and all the offences alleged, except one, are admittedly triable by a Court of Session, there cannot be any doubt regarding the correctness of the contention that the learned District Munsif cum Judicial Magistrate, Thiruppathur did not have jurisdiction to pass an order of remand extension beyond the period of 90 days.

28. Yet another attempt was made by the learned Additional Advocate General to contend that unless and until a Special Court under the National Investigating Agency Act is established for the particular area, the cases are to be dealt with by the ordinary Courts and that the Judicial Magistrates having the power of initial remand and remand extension up to 90 days shall be construed to have the power to extend remand beyond 90 days, reading the first proviso to Sub Section 2(b) of Section 43-D of the Unlawful Activities (Prevention) Act, 1967 into Section 167(2) of the Code of Criminal Procedure. This Court is not a position to accept the contention as a tenable one.

29. Section 22 of the National Investigating Agency Act, 2008 states that 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. Sub clause 3 of Section 22 of the National Investigating Agency Act, 2008 provides that the jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act, notwithstanding anything contained in the Code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter from time to time relating to Special Courts. The contention of the learned Additional Advocate General is that till the Special Court is constituted, they cannot approach the Sessions Court for an order of remand extension beyond 90 days and they are forced to approach the Magistrate for such an order. Yet another contention made by the learned Additional Advocate General is that unless and until the case is committed to the Sessions Court for trial, the Sessions Court shall not have the power to pass any order taking cognizance of the offence and that in such circumstances, by necessary implication by adopting harmonious construction of the provisions, the power of the Magistrate to extend the remand beyond the period of 90 days should be recognised.

30. Such a contention cannot be accepted in view of the provisions found in Section 16 of the National Investigating Agency Act, 2008, giving the power to the Special Court to take cognizance of the offences, without the accused being committed to it for trial upon receiving a complaint of facts that constitute the offences or upon a police report of such facts. The same power can be exercised by the Sessions Court in an area, for which, no Special Court has been constituted by virtue of Sub-section 3 of Section 22 of the said Act. Therefore, it cannot be contended that the Sessions Court shall not have the power to pass an order of remand extension.

31. Yet another difficulty was expressed by the learned Additional Advocate General stating that the learned Sessions Judge would not have been equipped with the file or back papers to consider whether to extend the remand beyond 90 days or not, since the case was not committed for trial and the Sessions Judge has not taken cognizance of the offence either on complaint or on police report. If similar logic is applied to the Magistrate, one may raise a question how the Magistrate can pass an order of remand before taking cognizance of the offences. As the Magistrate is given power to pass orders of remand before the submission of the complaint or before the submission of police report, the Sessions Judge/Special Judge is also given such power to pass the orders of the remand extension beyond 90 days. Whenever, the report of the Public Prosecutor is submitted, it must be accompanied by the CD file and copies of the other papers for the perusal of the Sessions Judge/Special Judge to consider the progress of the investigation and the reasons for seeking remand extension beyond 90 days. Hence, the said contention of the learned Additional Advocate General deserves to be rejected as untenable.

32. An attempt was also made on behalf of the respondent that since the matter pertains to the procedure contemplated under the Unlawful Activities (Prevention) Act, 1967 and the National Investigating Agency Act, 2008, the matter shall be dealt with by a Division Bench of this Court and not by a Single Judge of the High Court. In support of such contention, learned Additional Advocate General, produced a copy of an order passed by a single Judge of this Court in M.P.(MD)Nos.SR.24410, 24400 and 24402 of 2014 in Crl.O.P.Nos.3433, 4571 and 3432 of 2014 filed under Section 482 Cr.P.C. for recalling another order passed by another Hon'ble Judge of this Court. It was contended therein that order sought to be recalled was passed by a single Judge when the matter ought to have been listed before a Division Bench consisting two Honourable Judges. It is pertinent to note that the order passed by one Single Judge was sought to be recalled by filing a petition under Section 482 Cr.P.C. before another Honourable Judge and the Honourable Judge who dealt with the miscellaneous petitions filed in the Criminal Original Petitions filed under Section 482 Cr.P.C. praying for recalling of the order passed by the other Honourable Judge, has chosen to pass an order directing placing of the matter(petition for recalling the order of a Single Judge) before the Division Bench after getting necessary orders of the Honourable Chief Justice.

33. In that case, though the orders of remand extension was passed by the learned Judicial Magistrate, the accused chose to prefer a revision before the Sessions Court and the orders passed in the revision came to be challenged in a Criminal Original Petitions filed under Section 482 Cr.P.C. Under the said circumstances alone, taking the Court which passed the impugned order to be the Sessions Court, a contention was raised that under the National Investigating Agency Act, as per Section 21, an appeal would lie against the orders of the Sessions Court/Special Court which should be dealt with by a Division Bench of a High Court.

34. Here, the said problem does not arise, because the order impugned in this revision is not an order passed by the Special Court or the Sessions Court exercising the power of the Special Court as per Section 22 of the National Investigating Agency Act, 2008. It is a revision challenging the order of the Judicial Magistrate as one passed without jurisdiction. Therefore, even such a minor possibility of contending that this matter should go to the Division Bench is not available to the respondent herein.

35. The above said discussions will make it clear that the impugned order of the learned District Munsif cum Judicial Magistrate, Thiruppathur dated 25.06.2014 extending the remand of the petitioners beyond 90 days was an order passed without jurisdiction.

36. Much ado has been caused by the respondent by raising serious objections in this petition, which raises an issue which has been covered by the judgments of the various High Courts and also by the latest judgment of the Honourable Supreme Court. It is not necessary to make a reference to all such judgments and suffice to refer to the judgment of the Kerala High Court in Ashruff V State of Kerala reported in 2011 CRL L.J. 1021 and that of a larger Bench of the Honourable Supreme Court consisting of the Honourable the then Chief Justice and two other Honourable Judges of the Supreme Court in Sayed Mohd. Ahmed Kazmi V. State of GNCTD and Others reported in AIR 2013 Supreme Court 152.

37. Adverting to the relevant provisions viz., Section 167 of the Code of Criminal Procedure, Sub-Section 2(b) of Section 43-D of the Unlawful Activities (Prevention) Act 1967 and Section 22 of the National Investigating Agency Act, 2008, the learned Judge of the Kerala High Court made a clear observation that the power of Judicial Magistrate under Section 167 Cr.P.c. as amended by Section 43-D of the Unlawful Activities (Prevention) Act, 1967 shall extend to 90 days only, subject to the modification that the initial remand and extend extensions from time to time can be made for a period not exceeding thirty days at a time and that any remand extension beyond 90 days shall not be within the power of Magistrate and it should be made by the Special Court under the National Investigating Act or the Sessions Judge of the division, who exercises the power of the Special Court as per Section 22 of the National Investigating Agency Act.

38. When a similar question arose before the Honourable Supreme Court in the case cited supra, the larger Bench of the Supreme Court made the following observations in paragraph Nos.8, 26 and 27:

"8. On 2-6-2012, the appellant was produced before the Chief Metropolitan Magistrate, since his 90 days? period of custody was to expire on 3-6-2012, and further custody of 90 days was sought for by the prosecution. The learned Magistrate by his order dated 2-6-2012 extended the period of investigation and the custody of the appellant by another 90 days. The said order dated 2- 6-2012 was challenged by the appellant by way of CR No. 86 of 2012 which came up for consideration before the learned Additional Sessions Judge on 8-6- 2012. The learned Additional Sessions Judge, inter alia, held that it was only the Sessions Court and not the Chief Metropolitan Magistrate which had the competence to even extend the judicial custody of the accused and to entertain cases of such nature.

26. We are unable to appreciate the procedure adopted by the Chief Metropolitan Magistrate, which has been endorsed by the High Court and we are of the view that the appellant acquired the right for grant of statutory bail on 17-7-2012, when his custody was held to be illegal by the Additional Sessions Judge since his application for statutory bail was pending at the time when the application for extension of time for continuing the investigation was filed by the prosecution. In our view, the right of the appellant to grant of statutory bail remained unaffected by the subsequent application and both the Chief Metropolitan Magistrate and the High Court erred in holding otherwise.

27. We therefore, allow the appeal, set aside the order dated 20-7-2012 passed by the Chief Metropolitan Magistrate extending the time of investigation and custody of the accused for 90 days with retrospective effect from 2-6-2012, and the orders of the High Court dated 2-7-20121, 6-7- 20122 and 6-8-20123 impugned in the appeal and direct that the appellant be released on bail to the satisfaction of the Chief Metropolitan Magistrate, upon such conditions as may be deemed fit and proper, including surrender of passport, reporting to the local police station, and not leaving the city limits where the appellant would be residing without the leave of the court, so as to ensure the presence of the appellant-accused at the time of the trial."

39. The Authoritative pronouncement of the judgment of the Honourable Supreme Court in this respect, interpreting the relevant Sections, will make it clear, without giving any room for ambiguity, that the Magistrate shall not have the power to extend the period of remand beyond 90 days in exercising of the power conferred on the Court under the proviso to Sub Section 2(b) of Section 43-D of the Unlawful Activities (Prevention) Act, 1967, unless the Magistrate happens to be the Court having jurisdiction to try all the offences alleged in the concerned case. For all the reasons stated above, this Court comes to the conclusion that the revision is bound to succeed.

40. Accordingly, the Criminal Revision Case is allowed and the order of remand extension dated 25.06.2014 passed by the learned District Munsif cum Judicial Magistrate, Thiruppathur, Sivagangai District in Cr.M.P.No. Nil of 2014 (Crime No.10 of 2014) is set aside as one passed without jurisdiction. It will go without saying that the petitioners shall be released forthwith, unless their detention has been authorised by some other order in connection with some other matters or under some other provisions of law.

1. The District Munsif cum Judicial Magistrate, Thiruppathur, Sivagangai District.

2. The Deputy Superintendent of Police, Q-Branch CID, Ramanathapuram Range

3. The Additional Public Prosecutor, Madurai bench of Madras High Court, Madurai.

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