Kerala High Court
Yoonus vs Deputy Superintendent Of Police on 23 December, 2010
Author: P.S.Gopinathan
Bench: Pius C.Kuriakose, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2228 of 2010()
1. YOONUS, S/O.ALI, VELLILAVUNKAL HOUSE,
... Petitioner
Vs
1. DEPUTY SUPERINTENDENT OF POLICE,
... Respondent
2. STATE REP; BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/12/2010
O R D E R
PIUS C KURIAKOSE & P.S. GOPINATHAN, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
CRL. APPEAL Nos. 2228, 2229, 2231,
2232, 2240 & 2249 of 2010
= = = = = = = = = = = = = = = =
DATED THIS, THE 23RD DAY OF DECEMBER, 2010.
J U D G M E N T
P.S.Gopinathan, J.
The appellant in Crl. Appeal 2228 of 2010 is the 4th accused in Crime No. 704 of 2010 of Muvattupuzha Police Station for offences under Sections 143,147, 148, 120 B, 341, 427, 323, 324, 326, 506 (ii), 153A, 201, 202, 212 and 307 read with Section 149 I.P.C., Section 3 of the Explosive Substance Act, 1908 and Section 15 read with Sections 16,18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1987 (for short, 'UA(P) Act'). Accused Nos. 11 to 13 are the appellants in Crl. Appeal 2229 of 2010. The 8th accused is the appellant in Crl. Appeal No. 2231 of 2010. Accused Nos. 1 and 6 are the appellants in Crl. Appeal No.2232 of 2010. Accused No. 20 is the appellant in Crl. Appeal No. 2240 of 2010. The 7th accused is the appellant in Crl.Appeal No. 2249 of 2010. (Hereinafter the appellants are referred to as accused in the chronological order in the crime).
2. The prosecution case, in brief, is that Sri. T.J. Joseph was working as Professor in Malayalam at New Men's College, Thodupuzha. While setting question papers for the internal examination of B. Com. students, he CRL.. APPEAL 2228/2010 & CONNECTED CASES 2 included questions allegedly ridiculing Prophet Mohamed and Islam Religion. Activists of Popular Front of India (PFI) and its political wing called Social Democratic Party of India (SDPI) got intolerant. Though appropriate legal action was taken against Professor Joseph, the appellants and other activists conspired together to take revenge against Professor Joseph by attacking his house and either to kill Professor Joseph or to amputate his right palm with which the question paper was set and thus to strike terror. Pursuant to the criminal conspiracy hatched at different places by the workers of the PFI and SDPI, at about 8 A.M. on 4.7.2010, seven identifiable persons who are members and activists of PFI and SDPI and now identified as accused Nos. 14,27, 28, 37, 49, 50 and 51, formed themselves into an unlawful assembly and being members of the unlawful assembly they were armed with deadly weapons like hatchet, chopper, explosives etc. and reached near the house of Professor Joseph at Muvattupuzha in a Maruthi Omni Van with a false registration number. Professor Joseph, along with his sister Stella, who is a nun and their mother 81 years old Elikutty were returning from Nirmala Matha Church, Muvattupuzha after the Sunday Holy Mass in a Wagon R Car bearing Registration No. KL-17-E-1795. The assailants intercepted the above car CRL.. APPEAL 2228/2010 & CONNECTED CASES 3 with the Omni Van in which they reached there. All the assailants got down and smashed the window panes of the car in which Professor Joseph was travelling. They pulled Professor Joseph out of the car, dragged him to the road and repeatedly chopped on the right palm with hatchet and the right palm of Professor Joseph was amputated. The amputated palm was thrown into the nearby compound. Professor was chopped at various parts of his body with the intention to murder him. Sister Stella and mother Elikutty attempted to rescue. They were also manhandled by the assailants. Salomi, wife of Professor Joseph, along with their son Midhun, hearing the hue and cry, rushed to the scene. The assailants threw a country bomb, which exploded, against them, to create an atmosphere of terror. Midhun was lifted by the assailants and thrown down to the nearby compound. By the time when the neighbours and other people returning from the Church rushed to the scene, the assailants escaped in the van in which they reached the spot. Professor Joseph was lifted by the gathered people to a hospital. Salomi rushed to the Station House Officer, Muvattupuzha and gave the First Information Statement. After recording the statement of Salomi, a case as Crime No. 704 of 2010 for offences under Sections 143, 147, 148, 120 (B), 323, 324, 326, 341, 427, 506(ii) and 307 read with Section 149 I.P.C. CRL.. APPEAL 2228/2010 & CONNECTED CASES 4 and Section 3 of the Explosive Substance Act, 1908 was registered.
3. The Station House Officer, Muvattupuzha acted swiftly. He conveyed information to the adjacent police stations and higher authorities and alerted them. All of them were got vigil and were in action. The Sub Inspector of Police, Perumbavoor, while on vigil through the passing vehicles, could detect the van in which the assailants were travelling. On inspection of the vehicle, the Sub Inspector noticed blood stains inside and outside the vehicle. Broken glass pieces inside the vehicle were also brought to his notice. The vehicle and the driver were taken custody. The first accused was driving the van. On interrogation of the first accused by the Circle Inspector of Police, Muvattupuzha, the story behind the brutal attack was disclosed.
4. On further investigation, it was revealed that altogether 53 persons were involved in the offence alleged. Appellants and 19 others were arrested. The first accused was arrested on 4.7.2010. Accused Nos. 6 and 7 were arrested on 9.7.2010. The 8th accused was arrested on 12.7.2010. 4th accused was arrested on 21.7.2010. Accused Nos. 11 to 13 were arrested on 22.7.2010. Accused No.20 was arrested on 1.8.2010. When produced before the Judicial Magistrate of First Class, Muvattupuzha, CRL.. APPEAL 2228/2010 & CONNECTED CASES 5 they were remanded to judicial custody. Reports were filed incorporating all those persons as accused. On 12.8.2010, a report was filed by the Circle Inspector of Police before the Magistrate stating that in addition to the offences alleged in the First Information Report, the accused had also committed offences under Section 15, read with Sections 16,18,18B, 19 and 20 of the UA(P) Act, 1987. Report was conveyed to the higher authorities to that effect. The Deputy Superintendent of Police took over the investigation. Since the investigation could not be completed, on expiry of the period of remand of the arrested accused, reports were also filed from time to time seeking extension of the period of remand and remand period was extended periodically. By virtue of the proviso to Section 167(2) of the Code of Criminal Procedure, the arrested accused are entitled to be released on bail on expiry of 90 days from the date of arrest. But by virtue of Section 43D(2) of the U.A(P) Act, the above period of 90 days shall stand extended upto 180 days, by the order of the court provided if it is not possible to complete the investigation within the period of 90 days and if it is satisfied to the court on the report of the Public Prosecutor indicating the progress of the investigation and specific reasons for the detention of the accused beyond the said period of 90 days. The Assistant Public Prosecutor CRL.. APPEAL 2228/2010 & CONNECTED CASES 6 attached to the Judicial Magistrate of First Class, Moovattupuzha, filed a report purporting to be under the proviso to Section 43D(2). The learned Magistrate accordingly, allegedly by an omnibus order, extended the said period up to 180 days. The bail application submitted by the appellants and other accused were rejected by the learned Magistrate. Thereupon, some of the appellants herein and certain others filed Bail Application No. 5134 of 2010 and connected applications before this Court. In the bail applications, it was contended that no useful purpose would be served by the continued detention of the accused and that the Assistant Public Prosecutor who filed the report under the proviso to Section 43D(2) seeking extension of the period of detention up to 180 days had no locus standi to file the same and that only a Public Prosecutor can file the report and that the Magistrate was not competent to consider the said report and only a Court of Session can deal with the accused even during the crime stage on a report under the first proviso to Section 43D(2) of the UA(P) Act. Those petitions were disposed of by a learned single Judge, by a common order dated 26.10.2010, vide Ashraf v. State of Kerala (2010 (4) KLT 558).
5. It was also contended that the period of detention was extended without notice to the accused. In support of that argument, the accused / CRL.. APPEAL 2228/2010 & CONNECTED CASES 7 applicants in the bail applications relied upon the decisions reported in Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors.(JT 1994 (4) SC 255) and Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau & Anr. (2010 (1) KLD 539 (SC)) . The learned Single Judge found that the above rulings were whittled down by the Constitution Bench of the Apex Court in Sanjay Dutt v. State (1995 Crl. L.J. 477) wherein it was held that no written notice giving reasons therein need be given to the accused and that it will be sufficient if the accused is produced before the Court and informed that the question of extension of the period of detentions is being considered.
6. The learned Judge, after analysing the various provisions, further found that the Judicial Magistrate of First Class, Muvattupuzha was not competent to deal with the matter and that since a special court was not constituted under Section 11 or under Section 22 of the National Investigation agency Act, ( for short the 'NIA Act') the matter has to be dealt with by the Sessions Judge, Ernakulam and a report as contemplated by the proviso to Section 43D(2) of the UA(P) Act should have been filed by the Public Prosecutor attached to the Sessions Court , Ernakulam. Though it was found that the Assistant Public Prosecutor attached to the CRL.. APPEAL 2228/2010 & CONNECTED CASES 8 Court of Judicial Magistrate of First Class, Muvattupuzha was not competent to file a report under Section 43D(2) and that the Magistrate was not competent to deal with the subject, taking into account that everybody proceeded on the footing that the Magistrate at Muvattupuzha was the committal court having jurisdiction to deal with the case during crime stage and even during a previous batch of the bail applications, it was not argued and even the High Court was not aware of the true legal position, the learned Single Judge declined to release the applicants on bail and further opined that the matter has to be dealt with by the Court of Session, Ernakulam. The Public Prosecutor attached to the Sessions Court, Ernakulam, was directed to examine the extension of remand and to file a report under Section 43D(2) of the UA(P) Act. The Sessions Judge, Ernakulam was directed to consider the same and to pass appropriate orders. The Judicial Magistrate of First Class was directed to transmit all records to the Sessions Court, Ernakulam. Accordingly, the records were transmitted to the Sessions Court, Ernakulam.
7. An order rejecting or granting bail is an appealable order u/s 21 (4) of the NIA Act and the appeal from such order lie to the High Court u/s 21(1) of the NIA Act. Such appeal shall be heard by a Bench of two Judges CRL.. APPEAL 2228/2010 & CONNECTED CASES 9 of the High Court as stipulated by Section 21(2) of the NIA Act. It is without knowing that legal position, as against the order rejecting bail applications by the Magistrate, fresh bail applications were filed before this Court. The Registry also, without knowing the legal position, numbered the petitions as Bail applications and posted before the Single Judge and accordingly it was disposed.
8. The Sessions Judge, Ernakulam, on receipt of the records from the Magistrate, made over the same to the First Additional Sessions Judge, Ernakulam. The Public Prosecutor attached to the Sessions Court, thereupon filed reports under the first proviso to Section 43D(2) of UA(P) Act. Simultaneously, the appellants herein and other accused persons filed applications for bail. Crl. M.P. Nos. 1759/2010, 1765/2010, 1766/2010, 1767/2010, 1768/2010, 1791/2010 and 1778/2010 are the petitions so filed by the appellants. The Additional Sessions Judge acted upon the report filed by the Public Prosecutor and the period of detention was extended up to 180 days. All the bail applications were dismissed. Now these appeals are filed under Section 21 of the NIA Act, 2008.
9. We heard Sri. T.G. Rajendran, learned counsel appearing for the appellants in Crl.A. Nos. 2228, 2229, 2231 and 2232 of 2010, Sri. Sunny CRL.. APPEAL 2228/2010 & CONNECTED CASES 10 Mathew, learned counsel appearing for the appellant in Crl. A. 2240 of 2010 and Sri. Liffy P. Francis, learned counsel appearing for the appellant in Crl. A. 2249 of 2010 as well as Sri. P.N. Sukumaran, learned Additional Director General of Prosecution.
10. The fivefold points raised by the appellants are as follows:
(i) On receipt of the information and recording thereof under Section 154 of the Code of Criminal procedure, relating to any scheduled offence under the NIA Act, a report shall be forwarded to the State Government, and the State Government shall forward the same to the Central Government as expeditiously as possible under Section 6(2) of the NIA Act. On receipt of the said report from the State Government, the Central Government under Section 6(3) of the NIA Act, shall determine, on the basis of the information made available by the State Government, within fifteen days from the date of receipt of such report, whether the offence is scheduled offence and also having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency and that on such determination, the Central Government shall direct the Agency under Section 6(4) of the NIA Act to investigate the offence. According to the learned counsel for the appellants, a report as CRL.. APPEAL 2228/2010 & CONNECTED CASES 11 contemplated under Section 6 (2) of the NIA Act was submitted by the State Government and so far, the Central Government, even after the expiry of the time limit has not taken a decision on it and therefore, it has to be presumed that the Central Government is of opinion that the offence alleged is one not coming under the Schedule to the NIA Act. Therefore, according to the learned counsel, the report by the Public Prosecutor for extension of the period mentioned under Section 167(2) of the Code of Criminal Procedure is devoid of merits and the order of extension of the period of detention is unsustainable and hence the appellants are entitleld to get default bail by virtue of Section 167(2) of the Code of Criminal Procedure.
(ii). The 'Public Prosecutor' mentioned under Section 43D(2) of UA (P) Act is a Public Prosecutor appointed under Section 15 of the NIA Act or under Section 15 r/w Section 22(2)(i) and none else and that the Public Prosecutor attached to the Sessions Court Ernakulam has no authority to file a report under Section 43D(2) of the UA (P) Act, 1967 and so the report filed by the Public Prosecutor attached to the Sessions Judge, Ernakulam cannot be treated as a report under Section 43D(2) of the UA(P) Act.
Therefore, the order passed by the Additional Sessions Judge, Ernakulam is CRL.. APPEAL 2228/2010 & CONNECTED CASES 12 legally unsustainable.
(iii). Since a Special Court was not constituted by the State Government under Section 22, the matter has to be dealt with by the Court of Session of the division (Principal Sessions Judge) and that the Additional Sessions Judge has no authority to deal with the matter and thus the order passed by the Additional Sessions Judge is also not legally sufficient to extend the period of detention restricted by Section 167(2) Cr.P.C.
(iv) The offence alleged would not constitute any offence under the UA(P) Act, 1967.
(v). No purpose would be served by detaining the appellants without releasing them on bail.
Point No.(i).
11. Section 15 of the UA (P) Act defines "Terrorist act". Section 16 is the penal provision for terrorist act. Section 18 deals with the punishment for the criminal conspiracy for the commission of terrorist act or preparatory to the commission of a terrorist act. Section 18B deals with the punishment for recruiting any person or persons for terrorist act. Section 19 provides punishment for harbouring terrorist. Section 20 provides punishment for being member of terrorist gang or organisation. The CRL.. APPEAL 2228/2010 & CONNECTED CASES 13 schedule attached to the NIA Act would show that the offence under the UA (P) Act, 1967 is a schedule offence in respect of which the provisions of the NIA Act is applicable. Section 6 (3) and (4) of the NIA Act would show that as contended by the appellants, within fifteen days of the receipt of a report from the State Government, the Central Government shall determine whether the offence committed is a scheduled offence and whether it is a fit case to be investigated by the Agency under the NIA Act and if so, to direct the Agency to investigate the said offence. We find that a reading of Section 6 of the NIA Act would be relevant for the correct appraisal of the case. Section 6 reads -
6. Investigation of Scheduled Offences.--
(1) On receipt of information and recording thereof under Section 154 of the Code relating to any scheduled Offence the officer-in-charge of the police station shall forward the report to the State Government forthwith.
(2) On receipt of the report under sub-
section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of the report from the State Government, the Central Government shall determine on the basis of information made available by the State Government or received from other sources, within fifteen days from the date of receipt of the report, whether the offence is CRL.. APPEAL 2228/2010 & CONNECTED CASES 14 a Scheduled Offence or not and also whether, having regard to the gravity of the offence and other relevant factors, it is a fit case to be investigated by the Agency.
(4). Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation."
12. Section 6 of the NIA Act would show that as argued by the learned counsel for the appellant by virtue of sub-clause (3) and (4) Central Government is bound to act within fifteen days. Suppose the Central CRL.. APPEAL 2228/2010 & CONNECTED CASES 15 Government fails, what is the consequence? Whether the nature of the crime would be changed or not? According to the appellants, the offence alleged can no more be held to come under the UA(P) Act. According to the Additional DGP, it is of no consequence and the nature of offence would no way be changed. For a better appraisal, a reading of Sections 7 and 10 of NIA Act would be appropriate in the context of the arguments advanced.
"7. Power to transfer investigation to the State Government -- While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may --
(a) if it is expedient to do so, request the State Government to associate itself with the investigation; or
(b) with the previous approval of the Central Government transfer the case to the State Government for investigation and trial of the offence.
xxxxxxxx xxxxxxxx xxxxxxx xxxxxxxxx
10. Power of State Government to investigate Scheduled Offences-- Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force."
CRL.. APPEAL 2228/2010 & CONNECTED CASES 16
13. Going by Section 7, we find that, even if the Agency as contemplated under Section 6(4) of the NIA Act is directed by the Central Government to investigate the said offence, such Agency, with the approval of the Central Government, can transfer the case to the State Government for investigation and trial of the offence. Section 10 would show that even if the Central Government did not direct the Agency to investigate the said offence, the State Government can investigate and prosecute any Scheduled Offence. In the light of Sections 7 and 10, we find that even if there is failure on the side of the Central Government to respond under Section 6 (3) and (4), the State Government can investigate the offence alleged and neither the investigation nor the prosecution for the trial of the offence by the State Government would be vitiated. Neither could it be said that the offence alleged would not come within the purview of the Scheduled Offence. What is to be examined is whether nature of the offence alleged would come within the purview of UA(P) Act or not. Once the nature of the crime would come within the purview of UA(P) Act, it would not loose its character irrespective of the response of the Central Government upon the report forwarded under Section 6(2) of the NIA Act. So, let us examine whether the crime alleged would come within the definition of the 'Terrorist CRL.. APPEAL 2228/2010 & CONNECTED CASES 17 act' under Section 15 of the UA (P) Act, 1967, which reads as follows:
15. Terrorist act -- Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, --
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of or injuries to, any person or
persons; or
(ii) loss of, or damage to, or destruction
of, property, or
(iii) disruption of any supplies or services
essential to the life of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary;
or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the CRL.. APPEAL 2228/2010 & CONNECTED CASES 18 Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act."
14. Clause (a) read with clause (a)(i) of Section 15 of the UA(P) Act would show that the intention of the assailants to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people by using any lethal weapons or poisonous or noxious gases or other chemicals or by any other substance of a hazardous nature or cause injuries to any person or persons would come under the term ' Terrorist act'. Here, in this case, the allegation against the appellants would show that appellants along with others hatched conspiracy pursuant to which seven assailants formed into an unlawful assembly and armed with lethal weapons like hatchet, chopper, explosive substance etc. and with the lethal weapons they caused bodily injury to Professor Joseph and his right palm was amputated. The motive as stated earlier, is that the victim had prepared a question paper in Malayalam for the internal examination of B.Com. students ridiculing Prophet Mohammad. Though the assailants who are aggrieved of such question paper had not chosen to assail the so called ridiculing of Prophet Mohammad through the procedure established by law, they CRL.. APPEAL 2228/2010 & CONNECTED CASES 19 took law in their own hands and chopped away the hand with which the question paper was drafted. The offences alleged were committed in broad day light on the public road, giving a feeling of insecurity among the public at large and thereby perpetrators could strike terror in mind of the people. The crime alleged could give a feeling that those who do any act which the people like the perpetrators doesn't like or tolerate would be dealt in a brutal manner. Such a feeling is more than sufficient to threaten the security of the people and the Nation. Having due regard to the nature of crime, we find that it had a terrorizing effect on those who had witnessed the incident. The terror, fear and panic which the victim, his wife, mother, son and those who witnessed is unfathomable and tend to demoralize the ordinary man as observed by the Apex Court in an identical case, reported in Ravindra Shantram Sawant v. State of Maharashtra (AIR 2002 SC 2461). The crime had created far reaching consequences and would affect the society at large. It may even disturb the harmony in the society and even the public life. In the above circumstances, we find that the offences alleged against the appellants would come within the definition of 'Terrorist act' under Section 15 of the UA (P) Act, 1967 and is punishable under Section 16 of the said Act. There is also an allegation that the appellants had been CRL.. APPEAL 2228/2010 & CONNECTED CASES 20 raising funds for terrorist activities and were conspiring together and persons were recruited for the terrorist activities and the offences were committed by the appellants as members of the terrorist gang. Hence the first contention that the offence alleged would not come within the category of 'Scheduled offences" under the NIA Act is devoid of any merits. Point No. (ii)
15. It is not disputed that the report under the proviso to Section 43D(2) of the UA(P) Act was filed by the Public Prosecutor attached to the Sessions Judge, Ernakulam. According to the appellants, the 'Public Prosecutor' mentioned under the proviso to Section 43D(2) is none else than a Public Prosecutor appointed under Section 15 or Section 15 r/w Section 22(2)(i) of the NIA Act. Section 15 of the National Investigation Agency Act reads as follows:
"15. Public Prosecutors.--(1) The Central Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:
Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as CRL.. APPEAL 2228/2010 & CONNECTED CASES 21 an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.
(3). Every person appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly."
Going by Section 15, we find that the Central Government shall appoint a Public Prosecutor and may appoint one or more persons as Assistant Public Prosecutors or Additional Public Prosecutors for prosecuting the case before the special court. By virtue of Section 22 (2)(i), the State Government also can appoint Public Prosecutors. If the contention advanced by the appellants is analysed in the background of Section 15 read with Section 22(2)(i) of the NIA Act, there is merit in the submission made by the learned counsel for the appellants. But on a careful reading of the proviso to Section 43D(2) of UA(P) Act, we find that there is no much merit in the submission. The UA(P) Act, 1967 does not define 'Public Prosecutor'. The report of the Public Prosecutor referred therein is only for the purpose of extension of period of detention coming under the proviso to Section 167(2) of the Code. The Code is defined as the Code of Criminal CRL.. APPEAL 2228/2010 & CONNECTED CASES 22 Procedure Code. Section 24(3) of the Code provides for appointment of Public Prosecutors for every District. Since Section 43D(2) relates to the extension of period of detention under the proviso to Section 167(2) of the Code and the Code is defined as the Code of Criminal Procedure and the 'Public Prosecutor' is not defined, it would be just and appropriate to read that the 'Public Prosecutor' mentioned under the proviso to Section 43 D(2) would also include the Public Prosecutor appointed under Section 24(3) of the Code. Of course, we find that the 'Public Prosecutor' or 'Special Public Prosecutor' mentioned under Section 15 or Section 22(2)(i) also would come within the category of 'Public Prosecutor' mentioned under the proviso to Section 43D(2). Going by the sub-clause (2) of Section 15 of the NIA Act and sub-clauses (4), (5) and (7) of Section 24 of the Code, we find that the Public Prosecutor appointed under Section 24(3) of the Code shall be a person who has been in practice as an advocate for not less than seven years. But the Public Prosecutor to be appointed under Section 15 of the NIA Act always need not be a person who has been in practice as an advocate for not less than seven years. He may be a person who has held any post for a period of not less than seven years under the Union or State requiring special knowledge of law. In effect, the CRL.. APPEAL 2228/2010 & CONNECTED CASES 23 qualification prescribed for the Public Prosecutor to be appointed under Section 15 of the NIA Act may be a person with lesser qualification than a Public Prosecutor appointed under Section 24(3) of the Code. To put it other way, a person to be appointed as a Public Prosecutor under Section 15 r/w Section 22(2)(i) does not require any higher qualification than a Public Prosecutor to be appointed under Section 24(3) of the Code. In this view of the matter, we find no merit in the contention advanced by the learned counsel for the appellants. We find that the Public 'Prosecutor' mentioned under the proviso to Section 43D(2) of the UA (P) Act, 1967 would also include a Public Prosecutor appointed under Section 24(3) of the Code as well as Public Prosecutor or Special Public Prosecutor appointed under Section 15 or 22(2)(i) of the NIA Act, as the case may be. In this view of the matter, we find that the report filed by the Public Prosecutor attached to the Sessions Judge, Ernakulam would come within the purview of the proviso to Section 43D(2) of the UA (P) Act, 1967. But, if a Public Prosecutor or a Special Public Prosecutor or Additional Public Prosecutor is appointed under Section 15 or 22(2)(i) of the NIA Act, the Public Prosecutor appointed u/s 24(3) of the Code would cease to function. Section 22(3) of the NIA Act also persuades us to conclude so. By virtue CRL.. APPEAL 2228/2010 & CONNECTED CASES 24 of Section 22(3) until Special Courts are established u/s 22(1), the Court of Session of the division is empowered to discharge the functions. Likewise, till a Public Prosecutor/Additional Public Prosecutor/Special Public Prosecutor is appointed u/s. 15 r/w Section 22(2)(i) of the NIA Act, the Public Prosecutor attached to the Court of Session of the division appointed u/s. 24(3) of the Code would be the Public Prosecutor coming under the 1st proviso to Section 43D(2) of the UA(P) Act.
16. During the course of the argument, the additional Director General of Prosecution produced a copy of GO(MS) No. 224/2010 Law dated Thiruvananthapuram, 8.12.2010, whereby Sri. T.B. Gafoor, the Public Prosecutor who filed the report under the proviso to Section 43D(2) of the UA(P) act as Public Prosecutor u/s. 15 r/w sub-section 2(i) of Section 22 of the NIA Act for the conduct of this case before the Additional Sessions Judge. According to the learned Addl. DGP, till the above appointment order, Sri. T.B. Gafoor was the Public Prosecutor authorized under the Code to act as the Public Prosecutor under UA(P) Act also. We find merit in the submission.
Point No. (iii)
17. The contention of the appellants that the Sessions Judge of the CRL.. APPEAL 2228/2010 & CONNECTED CASES 25 division (Principal Sessions Judge) alone can deal with the matter and the Additional Sessions Judge is not competent is also devoid of any merit. Section 9(2) of the Code empowers the High Court to appoint a Judge to preside over every Court of Session. Section 9(3) empowers the High Court to appoint Additional Sessions Judge and Assistant Sessions Judge to exercise the jurisdiction in a Court of Session. Referring to the article 'the' used before the word 'Court' as well as 'division' in sub-clause (3) of Section 22 of the NIA Act, it was vehemently argued by the learned counsel for the appellants that the legislature did not intent Additional Sessions Judges to exercise jurisdiction under the NIA Act. A reading of sub-clause (3) of Section 22 of NIA Act would be appropriate to appreciate the contention advanced. Section 22(3) reads as follows:
(3) 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." (emphasis supplied)
18. Going by the above provision, we fail to find that 'the Court of CRL.. APPEAL 2228/2010 & CONNECTED CASES 26 Session of the division' mentioned does not exclude the Additional Sessions Judges appointed by the High Court in exercise of the powers conferred under sub-clause (3) of Section 9. Neither it would take away the powers of the Sessions Judge to transfer the case u/s 408 of the Code. For a correct understanding of the nature of appointment of Additional Sessions Judge, we have perused the Notification No. B1- 63/2008(2) dated 7.4.2008 whereby the Addl. Sessions Judge who delivered the impugned order was appointed . The notification reads:-
"In exercise of the powers conferred by Section 9(3) of the Code of Criminal Procedure, 1973, the High Court of Kerala hereby appoints the persons mentioned in column (1) of the Schedule hereto attached to be an Addl. Sessions Judge to exercise jurisdiction in the Court of Sessions mentioned against their names in Column (2) thereof from the date of taking charge.
Sl. No. Name of Officer Court of Session
xxxxxxxx xxxxxxxxxx xxxxxxxxx
xxxxxxxx xxxxxxxxxx xxxxxxxx
8 Smt. V. Shircy Ernakulam
xxxxxxxx xxxxxxxxx xxxxxxxxxx"
19. The above notification would show that the Additional Sessions Judge was also appointed to exercise jurisdiction in the Court of Session.
CRL.. APPEAL 2228/2010 & CONNECTED CASES 27 The Court of Session is nothing but that of the division. We find no merit in the contention. Our conclusion is also fortified by the decision of the Apex Court in Abdul Mannan v. State of West Bengal (AIR 1996 SC
905). At para 4 of the said judgment, it is held as follows:
"........................ It is made clear by sub- section (3) of Section 9 which provides that Additional Sessions Judges may be appointed by the High Court to exercise jurisdiction in a Court of Session. Singular includes plural. Sessions Judge would include Additional Sessions Judge under the Code. Therefore, he gets all the power and the jurisdiction of the Sessions Judge to try the offences enumerated under the Code. ............."
Adv. Sri. T.G. Rajendran appearing for some of the appellants submitted that the above ratio cannot be applied to this case as it is relating to Juvenile Justice Act where there is only mention about the Sessions Judge and not about the division. We find that the submission is true. But we notice that though there is no mention about the division, it is implied that the 'Sessions Judge' mentioned in that statute is none other than that of the division. Here, the word 'the division' is also specified only to avoid any doubt that may arise. It is not with intent to avoid Additional Sessions Judges exercising jurisdiction. We find no good reason not to apply the above ratio to the case on hand. Hence the contention advanced by the CRL.. APPEAL 2228/2010 & CONNECTED CASES 28 learned counsel for the appellants that the Additional Sessions Judge has no power to deal with the matter also is devoid of any merit. Point No. (iv)
20. We have gone through the report filed by the Public Prosecutor under the proviso to Section 43D(2) of the UA (P) Act, 1967. In para 12 of the report relating to the first accused it is stated that he was driving the Omni Van soon after the incident and while driving so, he was intercepted by the Sub Inspector of Police, Perumbavoor. It was also disclosed that he was entrusted with the duty of removing the vehicle from Erumalappadi near Kothamangalam to hand over it to the second accused as directed by the 4th accused. From the pocket of the first accused telephone numbers of the second and fourth accused were seized and that in the investigation it is disclosed that the first accused was involved in the conspiracy and he was assigned the duty of destroying the evidence.
21. In the report filed against the 4th accused, at Para 12, it is stated that he was the president of the PFI, Muvattupuzha Division as well as the District Committee member of PFI, Ernakulam District and he had been holding the charge of physical education wing of PFI. He had participated in the conspiracy held on 28.3.2010 at Seemas Auditorium along with the CRL.. APPEAL 2228/2010 & CONNECTED CASES 29 5th accused and PFI leaders as directed by the 5th accused. The 4th accused arranged Accused No. 16 to prepare the sketch and route map to the house of Professor Joseph and accordingly, accused No.16 prepared the route map and that on 4.4.2010 there was plan and preparation to destroy the house of Professor Joseph under the leadership of the 4th accused and that he entrusted the third accused to purchase the van used for the commission of the crime and he had also arranged accused No. 36 to buy a second hand bike for the commission of the offence and he had deployed different persons to collect weapons, vehicles and the blood stained cloth after the commission of the crime. He had also detailed persons to surrender before the police as if the real accused and that the first accused had been removing the vehicle at the direction of the 4th accused.
22. In the report against the 6th accused, in Para 12, it is stated that he was the secretary of the PFI, Eramam South unit and an active worker of the PFI. He along with the accused had connections with the 5th accused and from the 5th accused he got a Sim card and handed over to the 7th accused which was used for conveying messages to arrange the crime and it was through that Sim card the 8th and 9th accused were contacted on the date of occurrence several times for managing the operations and the CRL.. APPEAL 2228/2010 & CONNECTED CASES 30 accused who got injured in the incident was directed to go to the house of the 8th accused.
23. In Para 12 of the report filed against the 7th accused it is stated that the 7th accused is an active worker of PFI and bearing charge of the junior wing of PFI in Kalamassery Division and he had obtained two Sim cards with Mobile No. 9995377187 and 903722074 and the former number was used by the 7th accused and the latter number was handed over to the 5th accused who is one of the prime accused and master brain of the operation and it is through that Sim card accused Nos. 8 and 9 were contacted. The 7th accused had also involved in the conspiracy that took place at different places at different times.
24. In the report filed against the 8th accused at para 12, it is stated thaht he had made arrangements for treatment facilities at his house for the accused who was injured in the incident and that the 5th accused had contacted the 8th accused seven times in between 8.14 hours and 10.09 hours on 4.7.2010 and that he is an active worker of PFI/NDF and holding the charge of the secretary of Aluva Division and that accused No. 37 who was injured was brought to the house of the third accused for providing treatment.
CRL.. APPEAL 2228/2010 & CONNECTED CASES 31
25. In the report filed against the 11th accused, at Para 12 it is stated that he is an active worker of the PFI/NDF for nine years and he was the unit member of PFI, Valanchery unit and SDPI, Valanchery branch and that he had harboured the 4th accused despite the fact that a look out notice was prepared against accused Nos. 3, 4 and 5 and that he was also involved in the conspiracy that took place at different places at different times.
26. In the report filed against the 12th accused, it is stated that the 12th accused was an active worker of PFI/NDF for about five years and he was the Secretary of PFI, Muvattupuzha Division and that he along with the second accused selected members from the sub division of PFI to commit the crime and the 4th accused handed over the list to 5th accused and that he was also involved in the conspiracy along with the other accused at various places on different dates. He had also convened meeting with the 13th accused at the residence of accused No. 47 on 4.7.2010 evening and conspired to protest against the arrest of the firstand second accused in the name of a non existing organization named 'Muslim Iykya Vedi' and in order to turn the whole Muslim community against the Police and thereby to deter the Police from legal proceedings and making hindrance in the investigation of the case and that himself and the 13th CRL.. APPEAL 2228/2010 & CONNECTED CASES 32 accused took leadership to collect finance to provide assistance to the family members of the absconding accused.
27. In the report filed against the 13th accused, it is stated in Para 12 that he was an active worker of PFI/NDF for about nine years and was the president of PFI, Muvattupuzha area of which the 7th accused is the area secretary. He had participated in the conspiracy committed at different places at different times on different dates. He had convened meeting along with the 12th accused at the residence of accused No. 47 on 4.7.2010 and conspired to arrange protest march in the name of a non existing organisation named Muslim Iykya Vedi in order to turn the whole Muslim community against the Police and thereby to deter the police from legal proceedings. He along with the 12th accused had been collecting finance to assist the families of the absconding accused.
28. In the report filed against the 20th accused, in Para 12, it is stated that he was an active member of the PFI and he had participated in the conspiracy in the very beginning of the preparation of the commission of the crime. He was one of the gang members detailed for collecting weapons and blood stained clothes used by the assailants on three aborted attempts made in May, 2010.
CRL.. APPEAL 2228/2010 & CONNECTED CASES 33
29. Going by the above reports, we are not in a position to come to a conclusion that the appellants were falsely implicated. Advocate Sri.T.G. Rajendran, learned counsel for the appellants submitted that the offence under the Unlawful Activities (Prevention) Act, 1967 was implicated with an oblique motive of depriving the appellants from getting bail. It was also submitted that it has become a practice of the Police to falsely implicate innocent persons with such ulterior motive. He had canvassed our attention to para 42 of the decision in Prakash Kumar @ Prakash Bhutto v. State of Gujarat (JT 2005(11) SC 209), which according to the learned counsel is an identical case. At para 42, it is held thus:
"Having said so, we also notice the note of caution of this Court in Kartar Singh (supra) in paragraph 352 as under:-
"352. It is true that on many occasions, we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police. Unless, the public prosecutors rise to the occasion and discharge their onerous responsibilities keeping in mind that they CRL.. APPEAL 2228/2010 & CONNECTED CASES 34 are prosecutors on behalf of the public but not the police and unless the Presiding Officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Constitution to which they have been assigned the role of sentinel on the qui vive, it cannot be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment." (emphasis supplied)
30. It was further submitted by the learned counsel that without applying the mind, the Public Prosecutor had filed the report and in fact there is no mention in the reports that he had applied his mind. So, according to the learned counsel, the report submitted by the Public Prosecutor is to be rejected in toto. He canvassed our attention to Para 22 of the decision in Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. (JT 1994(4) SC 255). At para 22 of the said decision, it is held as follows:
"................................................................................. ..................................................................................
The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it, that he had applied his mind and was satisfied with the progress of the investigation and CRL.. APPEAL 2228/2010 & CONNECTED CASES 35 considered grant of further time to complete the investigation necessary. The use of the expression "on 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" as occurring in clause (bb) in sub- section (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). ................................................ ............. ......
...............................................................................
We have already dealt with the importance of
the report of the public prosecutor and
emphasised that he is neither a 'post office' of the investigating agency nor its 'forwarding agency' but is charged with a statutory duty. He must apply his kind to the facts and circumstances of the case and his report must disclose on the face of it that he had applied his mind to the twin conditions contained in clause (bb) of sub-section (4) of Section 20. Since, the law requires him to submit the report as envisaged by the section, he must act in the manner as provided by the Section and in no other manner. ........................................ ................................................................................. ......................................................................." We have carefully gone through the reports submitted by the Public Prosecutor. To our assessment, the Public Prosecutor had gone through CRL.. APPEAL 2228/2010 & CONNECTED CASES 36 the case diary and had given brief, but speaking report, especially regarding the involvement of the appellants, which in a nutshell we have quoted earlier. On the basis of the report, we are unable to accept the argument that the Public Prosecutor had not applied his mind. We are satisfied that the Public Prosecutor had filed the reports regarding each and every appellant after applying his mind.
31. It was also submitted by learned counsel Sri. T.G. Rajendran, after referring to para 122 of the decision in Siddharam, Satingappa Mhetre vs. state of Maharashtra and others (2010 (12) SCALE 691) that while dealing with an application for bail, the following factors and parameters are to be taken into consideration.
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. the possibility of the applicant to flee from justice; iv. the possibility of the accused's likelihood to repeat similar or the other offences;
v. Where the accusations have been made only with the object of injuring or humiliating the applicant CRL.. APPEAL 2228/2010 & CONNECTED CASES 37 by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. the courts must evaluate the entire available material against the accused very carefully.
32. We find that by sub-clause 4 of Section 43D of the UA(P) Act, the legislature had imposed total restriction for applying Section 438 of the Code . So the above guidelines cannot be applied to the case on hand. We further notice that by the proviso to Section 43 D(5) the accused shall not be granted bail if the court is of opinion that there are reasonable grounds for believing that the accusation against the accused is prima facie true. Going by the report of the Public Prosecutor, which we had mentioned earlier, we are persuaded to find that the accusation is prima facie true. The learned counsel for the appellants much assailed the report of the Public Prosecutor and submitted that the report is based on materials not admissible in evidence. At this stage we find it idle to search for evidence that might end in conviction. In view of the proviso to sub-clause 5 of Section 43D of the UA(P) Act, we are examining whether the accusation is prima facie true or not. We are not expressing any opinion about the merits of the case because CRL.. APPEAL 2228/2010 & CONNECTED CASES 38 that may sometimes prejudice the appellants or the prosecution. To conclude, we find little material to diverge with the finding of the Additional Sessions Judge. In the above circumstances, we find that the offences alleged also would come under UA(P) Act.
Point No. (v)
33. The last argument that no purpose would be served in keeping the appellants in custody is also devoid of any merit. As against the said argument, the learned Additional Director General of Prosecution submitted that out of the 53 accused only 28 could be apprehended and that the investigation against the other persons are going on and in the event the appellants are released on bail, there is every likelihood of the appellants hindering with the investigation. According to ADGP, since the investigation against the other accused are going and in the peculiar nature of the case, it is not feasible to release the appellants on bail. In support of the said argument, the learned Additional Director General of Prosecution had relied upon the decision in Redaul Hussain Khan v. National Investigation Agency ((2010) 1 SCC 521). At para 18 it was held thus:
As far as Mr. Ghosh's second submission is concerned, the recovery of Rs. 4 lakhs from the petitioner's custody would require further investigation into the allegations made not only CRL.. APPEAL 2228/2010 & CONNECTED CASES 39 against the petitioner, but the other accused persons as well."
The ADGP had also canvassed our attention to the observation of a learned Single Judge in an identical matter reported in Mohammed NavasA. v.
Station House Officer (2009(3) KHC 545). At para 12, it is held:
"[T]he question is not whether how long a person is in judicial custody, but whether it is feasible to release him on bail in the facts and circumstances of the case. Counting of the days of detention is not the criterion to be adopted in all cases. Facts and circumstances may vary in each case. Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers. It may strike anybody at any time. Any amount of precautionary measures and security arrangements may prove futile to combat terrorism. Fundamental right to individual liberty is certainly valuable. But when it is pitted against the life and liberty of the people at large, it becomes insignificant. Terrorism affects the growth of the nation; the resources of the nation have to be utilised for combating terrorism; it could be utilised in better ways for the betterment of the people. Offences against individuals are to be distinguished from offences affecting the nation and the people at large. Parameters to be adopted in the matter of considering the plea for bail would also be different in these two types of cases. A strict approach in the latter category of cases is justified. Sympathy has no role in dealing with such cases."
CRL.. APPEAL 2228/2010 & CONNECTED CASES 40 The above observation of the learned Single Judge is apt and applicable to this case also. However, in view of the proviso to section 43D(5) of the UA (P) Act, the argument advanced by the appellant deserves no consideration.
For the foregoing reasons, we find that the appellants are not entitled to be released on bail. The bail applications were rightly rejected by the Additional Sessions Judge. The appeals are devoid of merits. The appeals are accordingly dismissed.
PIUS C KURIAKOSE, (JUDGE) P.S. GOPINATHAN, (JUDGE) knc/-