Andhra Pradesh High Court - Amravati
National Investigation Agency vs J.Srinivasa Rao on 19 July, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL APPEAL No.478 of 2019
JUDGMENT :(per Hon'ble the Acting Chief Justice C.Praveen Kumar)
1) Assailing the order dated 22.05.2019, passed in Crl.M.P.No.741 of 2019 in R.C.1/2019 of NIA/HYD, registered for the offences punishable under Section 307 IPC and U/s.3A(1)(a) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982, wherein the appellant/accused was granted bail, the National Investigation Agency preferred the present Appeal under Section 21 of the National Investigation Agency Act, 2008.
2) Both the learned counsel stated that they have no objection for hearing of this appeal by this Bench and disposal of the same at the admission stage.
3) Before appreciating the arguments advanced by the counsel, it would be appropriate to refer to the facts in issue.
4) The allegations leveled against the respondent/accused in nutshell are that on 25.10.2018 2 when the then leader of the opposition party, was in the VIP Lounge of Visakhapatnam Airport, the respondent/accused, who was working as an Attender in a Restaurant attached to the Airport went there to serve Tea. It is said that the respondent/accused requested the leader of the opposition for a selfie with him, to which he obliged. Taking advantage of the same, the respondent is said to have attacked the assailant, with a knife used in cock fights. Immediately thereafter, the said person was overpowered and a case in Cr.No.348 of 2018 came to be registered in the Airport P.S., Visakhapatnam. Having regard to the gravity of the offence, the Ministry of Home Affairs, Central Government, New Delhi issued an order under Section 6(5) read with Section 8 of the N.I.A Act. Pursuant to which, the above case came to be re- registered as R.C.No.1/19/NIA/Hyderabad for the offences punishable under Section 307 IPC and u/s.3A(1)(a) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 and transferred to special court. Considering the rival arguments advanced, the Court below granted bail to the petitioner.
5) The main ground, on which the learned Sessions Judge granted bail, was on a principle that accused is 3 presumed to be innocent until his guilt is proved beyond reasonable doubt. Further, relying upon the judgment of Gurubaksh Singh Sibbia etc., v. State of Punjab1; having regard to the fact that the weapon used was a knife which is used in cock fight; as the respondent/accused being not a pirate or a hijacker; and as he figured as A-5 in the said case, granted bail to the petitioner.
6) The counsel appearing for the appellant/N.I.A. would contend that the case on hand cannot be treated as a regular criminal case. According to him, the order does not satisfy the requirements of Section 6A of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982, which are mandatory.
7) On the other hand, Sri M.Jayakar the learned counsel for the accused raised an objection as to the maintainability of appeal itself. Even otherwise he would contend that the trial court has categorically held that the accused is innocent of the offence and as such the same warrants no interference. He further submits that the respondent/accused is only a waiter in the restaurant and to say that the provisions of the Act would apply to him is farfetched.
1 1980 AIR 1632 4
8) The objection raised with regard to maintainability of the appeal is no more res-integra in view of the Judgment of the Division Bench of this Court reported in National Investigation Agency Chikoti Garden, Begumpet, Hyderabad v. Mohmed Anwar Shak and others2. In the said case, the High Court after referring to various authorities on the subject, categorically held that under Section 21(4) of the N.I.A. Act an appeal would lie against any order passed by the Special Court including granting or rejecting the bail application.
9) Coming to the merits of the case, Section 6A of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 deals with provision of bail. It reads as under:
"6A. Provision as to bail -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless-
(a) the Public Prosecutor has been given an opportunity to oppose the application for such release ; and
(b) where the Public Prosecutor opposes the application, the court is satisfied that there are 2 (Crl.Appeal No.824 of 2012 decided on 21.12.2012) 5 reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973.
10) From a reading of the above provision, it is very clear that for granting bail the following conditions should be satisfied
i) The public Prosecutor should be given an opportunity to oppose the bail application and
ii) Where the Public Prosecutor opposes the bail application, the Court should be satisfied that there are reasonable grounds to believe that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
11) Insofar as the first clause is concerned viz., giving an opportunity to the Public Prosecutor to oppose the bail application, the material on record clearly indicate that the 6 same has been complied with. The record discloses that the learned Public Prosecutor opposed the bail application.
12) The next question would be whether Court was satisfied that there are reasonable grounds for believing that the respondent/accused is not guilty of such offence.
13) It may be true that the respondent/accused herein was only a waiter in the restaurant, but one circumstance which should be kept in mind is that the victim of the assault, was in a high security zone. It is also to be noted that the assailant was apprehended at the spot and the weapon used in the commission of the offence was recovered from him at the scene. That being the position, it is to be looked into whether the trial court gave any finding as to its satisfaction that there are reasonable grounds to believe that the accused is not guilty of such offence.
14) Section 6A of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 is in paramateria to Section 37 of the N.D.P.S. Act.
It would be appropriate to refer to Section 37 of The Narcotic Drugs And Psychotropic Substances, Act, 1985, which is as under:
7
"37.Offences to be cognizable and non-bailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 3 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
15) A reading of the above provision makes it clear that the contents of Section 37 are in para-materia to Section 6A of the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982. Dealing with the same, the Apex Court in Satpal Singh Vs. State of Punjab3 held that when a person is accused of an offence punishable under Sections 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such 3 (2018)13 SCC 813 8 release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The Court further held that these limitations are in addition to those prescribed under the Code of Criminal Procedure or any other law in force on the grant of bail. The Apex Court further observed that in view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail.
16) As seen from the record, no application has been filed before any court questioning the applicability of the Suppression of Unlawful Act against Safety of Civil Aviation Act, 1982 (for short "the Act, 1982")to the case on hand. As long as the petitioner is alleged with the offences punishable under the Act, 1982 it is to be seen whether the trial court while granting bail has recorded its satisfaction in terms of Section 6A of the Act, 1982.
17) It is no doubt true that initially the case was registered for the offence punishable under Section 307 IPC, but subsequently an offence under Section 3A(1)(a) of 9 the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 has been added. The trial court appears to have proceeded on a premise that the petitioner is languishing in Jail since October, 2018 and injury that was caused to the injured was a small incised wound on the left shoulder and that there was no loss of blood. The trial court further observed that the victim remained unfazed, when several VIPs surrounded and manhandled the respondent/accused and that the accused also sustained injury on his right eyebrow. The trial court also held that since the charge-sheet is filed; as the respondent/accused is not a pirate or a hijacker and as he is not branded as an habitual offender, and having regard to the health condition of the accused ordered release of the accused.
18) But those are not the grounds, under which a bail application has to be considered in offences of this nature, more so when the offence alleged is under Section 3A(1)(a) of the Suppression of Unalwful Acts against Safety of Civil Aviation Act. Section 6A of the Act, 1982 makes it very clear that the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty. The said finding, according to us, is 10 lacking in the order impugned. Further, the punishment prescribed for the offence punishable u/s.3A(1)(a) of the Suppression of Unalwful Acts against Safety of Civil Aviation Act is imprisonment for life. This being a grave offence and when the law makers have imposed certain restrictions, which were held to be mandatory, the impugned order warrants interference for non-fulfillment of the mandatory requirement of Section 6A of the Act, 1982.
19) Hence, the order under challenge is set-aside and the matter is remanded back to the trial court to deal with the same in accordance with law and pass appropriate orders after hearing all concerned within four weeks from today uninfluenced by the observations if any made in this order.
20) Miscellaneous petitions pending, if any, stand closed.
___________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Dated: 19.07.2019 GM