Karnataka High Court
Gauhar Aziz Khomani vs State By Cubbon Park Police on 26 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL PETITION NO.8718/2017
BETWEEN:
1. Gauhar Aziz Khomani
S/o Mohammed Lukman
Khomani
Age about 34 years
R/at Barh Samaila Village
Lalganj Post
Darbhanga District
Bihar State - 847 121.
2. Mohammed Tharikh
Anjumahsan @ Tariq
S/o Mohammed Badruzzama
Age about 34 years
R/at Ahmedabad Village
Mehanowda Post
Nalanda District - 803 101.
Bihar State
And resident at
Flat No.F-210, F Block
Abdu Fazal Enclave-2,
Shahinbagh, Okhla
Jamiyanagar
New Delhi - 110 025.
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3. Kamal Hasan @ Kamaal
S/o Mohammed Husnain @ Badsha
Age about 26 years
R/at Ballaha Village
Bisfi Police Station
Madhubani District
Bihar State - 847 121
4. Mohammed Kafi Akhtar @ Kafi
S/o Abdus Salam
Age about 29 years
R/at Barh Samaila Village
Lalganj Post
Keoity Police Station
Darbhanga District
Bihar State - 847 121. ...PETITIONERS
(By Sri Mohammed Tahir, Advocate)
AND:
State by Cubbon Park Police
Bangalore
Represented by
State Public Prosecutor
High Court Complex Building
Bangalore - 560 001. ...RESPONDENT
(By Sri Chethan Desai, HCGP)
This Criminal Petition is filed under Section 439
Cr.P.C., praying to enlarge the petitioners on bail in
Cr.No.92/2010 of Cubbon Park Police Station, Bengaluru
and in S.C.No.871/2013 pending on the file of XLIX
Additional City Civil and Sessions Judge, Bengaluru for the
offences p/u/s 120(B), 121, 121(A), 123, 212, 435, 307 and
201 of IPC and Sec.3, 4, 5 and 6 of Explosive Substances Act
and Section 4 of Prevention of Damage to Public Property Act
and Sec.3, 10, 11, 13, 16, 17, 18, 19 and 20 of Unlawful
Activity (Prevention) Act, 1967.
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This Criminal Petition having been heard and reserved
for order on 04.06.2018 and coming on for pronouncement
of order this day, BUDIHAL R.B. J., made the following:-
ORDER
This Petition is preferred under Section 439 of Cr.P.C., praying the Court to grant regular bail to petitioners in crime No.92/2010 registered in respondent police station for the offences punishable under Sections 121, 121A, 123, 201, 212, 435, 307, 120B of IPC and Sections 13(1)(a), 13(1)(b), 16(1)(b), 18, 19, 20 of Unlawful Activities Prevention Act read with Section 120B of IPC and Section 4(a), 5(b) and 6 of Explosive Substances Act and Section 4 of Prevention of Damage of Public Property Act, pending on the file of LXIX Additional City Civil and Sessions Judge, Bengaluru in Sessions case No.871/2013 and the connected matters in Sessions case Nos.868/2013, 869/2013, 870/2013, 872/2013, in the interest of justice and equity.
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2. Brief facts of the case as pleaded by the petitioners in the petition is that on 17.4.2010 around 2.50 p.m., the bomb in the midst bush on the path of office of the Additional Director General of Police, Telecommunication, Anil Kumble Circle, M.G. Road, Bengaluru City, exploded and caused damage to the public property. In connection with this blast, main case in crime No. 92/2010 was registered with Cubbon Park Police Station, Bengaluru. At about 4.00 p.m. on the same day, i.e. on 17.4.2010, 2nd live bomb planted behind the flex board adjacent to gate No.12 exploded. Due to the powerful blast, the compound wall of Chinnaswamy Cricket Stadium was damaged severely and its particles were injured, security staff and civilian were sustained injuries and also caused loss to the public property. In connection with this blast, another case is registered in crime No.93/2010 with Cubbon Park Police Station, Bengaluru.
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After these two blasts, the authorities conducted search (combing operation) in and out of Chinnaswamy Cricket Stadium. One Sri Radhakrishna noticed live bomb around 7.00 p.m. of 17.4.2010 hidden between flex board and compound wall of Chinnaswamy Cricket Stadium on the roof of gate No.8. To avoid the further consequences, the bomb disposal squad defused the live bomb at the spot after taking all the precautionary measures. In connection with the recovery, another case is registered as crime No.94/2010. On the next day, i.e., 18.4.2010 also, thorough search was conducted in and out of Chinnaswamy Cricket Stadium around 8.00 hours. Sri A.K. Girish, Sub-Inspector of Police, Cubbon Park Police Station, Bengaluru, found another bomb in BMTC bus stand and compound wall of Chinnaswamy Cricket Stadium compound. The bomb disposal squad defused the live bomb, and in connection with this recovery also, a case is registered in crime No.95/2010 with Cubbon Park Police Station, Bengaluru. Around 6 12.00 noon, Sri G Balara, PSI, Cubbon Park Police Station, Bengaluru City, noticed square shaped bomb hidden in square shape flex board installed in front of foot path of Chinnaswamy Cricket Stadium and the bomb disposal squad defused the bomb at spot and in this connection, there is another case registered in crime No.96/2010. Subsequently, investigation is transferred to the Special Investigation Team of CCB Police, Bengaluru, and in spite of this investigation, the team was not able to arrest anybody till November 2011, whereas the complainant police claims that some witnesses had seen the accused persons prior to the incident and also presented these witnesses as C.Ws.57, 70, 71 and 72. These petitioners were arrested by the Delhi police in connection with some another case in FIR No.54/2011. After the arrest of accused No.2 Mohammed Qutil Siddiqui on 18.11.2011 and along with three accused persons, they also arrayed as accused Nos.3 and 4 within a week in this case and 7 overt act in this case is just a conspiracy. The investigation team has also included these petitioners accused in this case in order to resolve the pending blast cases on the basis of the alleged voluntary statement of accused No.2 Mohd Qutil Siddiqui @ Sajan @ Shezada Saleema Siraj @ Vivek Mishara S/o. Mohammed Zafeer, aged about 27 years, resident of Barh Samila Village, Langanj post, Dabhanga District, Bihar State. The said facts came out after investigation that accused No.1 - Yasin Bhatkal, accused No.2 - Mohammed Qatil Ahmed Siddique, accused No.3 - Ghayur Ahmed Jamali and accused No.4 - Afab Alam @ Farooq assembled in Tumkur, wherein accused No.1 had taken rented house of Syed Noorulla i.e., C.W.75 in the main case and preceding two days of the alleged blast i.e., 17.4.2017, he purchased some material from Bengaluru.
The further averments in the petition is that on 16.4.2010, they prepared and assembled five bombs 8 and taken to Bengaluru by different means. On the intervening night of 16th and 17th April, 2010, accused Nos.1 and 2 planted five bombs. As accused Nos.3 and 4 stayed back in the railway station only, two of these were exploded and other three are recovered. From there, four accused disbursed to different locations and they were seen by C.Ws.57, 70, 71 and 72.
The allegations against the petitioners is that they were the members of the same group and taken part in the conspiracy meeting at the house of petitioner No.2/accused No.6 at flat No.D-76/1, Abdul Fazal Enclave-2, Shahinbagh, Okhla Jamianagar, New Delhi in January/February 2009, where the alleged conspiracy to commit several bomb blasts in India was discussed and IPL event was specifically selected due to participation of foreign players in media. The complainant has also recorded the statement of the owner of the house and made him as C.W.98 in the case, who speaks about the alleged conspiracy meeting. 9 The charge sheet was filed in August 2016 and it is pending for trial. Copy of FIR No.92/2011, complaint, charge sheet is produced as per Annexures-A, B and C to the petition.
Only after the direction issued by this Court in Criminal Revision petition No.250/2016 vide order dated 6.4.2016, the charge came to be framed on 22.07.2016. The trial of the case was effectively started on 26.09.2016 and continued till 31.12.2016 on three days in a week basis, but stalled due to transfer of the Presiding Officer and not posted the officer till 1.7.2017.
The petitioners approached this Court in Writ Petition Nos.7984-88/2017, wherein this Court passed an order on 17.3.2017 for day today trial and complete the trial of the case within six months. In spite of this order, no progress is made in this regard and these petitioners are languishing in jail without any relief for the past six years. The new Presiding Officer who assumed the charge has not fixed the schedule of the 10 trial. Even the petitioners filed the application under Section 309 of Cr.P.C. on 9.9.2017 which is still pending for disposal and the trial is going on in snail speed. Hence, the petitioners are before this Court in this petition.
3. The learned High Court Government Pleader while opposing the said petition, has raised the contentions that since some of the alleged offences are also fall under the provisions of the Unlawful Activities (Prevention) Act, 1967, this criminal petition is not maintainable and the petitioner has to file an appeal. Hence, we heard the learned counsel for the petitioners and also the learned High Court Government Pleader regarding the maintainability of this petition in the present form as the criminal petition is filed under Section 439 of Cr.P.C. seeking the regular bail. 11
4. Earlier, this petition was filed before the learned Single Judge of this Court and the learned Single Judge has passed the order dated 19.1.2018, which reads as under:
"The alleged offences in this case are also under the provisions of the Unlawful Activities (Prevention) Act, 1967. If that is so, in view of the judgment of the Hon'ble Apex Court rendered in the case of State of Andhra Pradesh Vs. Md. Hussain @ Saleem; so also in the case of Sadhwi Pragna Singh Thakur Vs. National Investigation Agency reported in (2013)6 ABR 670, the matter will have to be heard by the Division Bench of the High Court as a Criminal Appeal and before the Single Judge, as criminal petition is not maintainable in view of the said judgment of the Hon'ble Apex Court."
Therefore, this matter is assigned to this Division Bench by the order of the Hon'ble Acting Chief Justice. 12
5. Learned Counsel appearing for the petitioners accused submitted that since the investigation of the case is not conducted by the investigation team constituted under the National Investigation Agency Act, 2008 (for short 'the NIA Act, 2008') and as the investigation has been conducted by the State Police, the petition is maintainable under Section 439 of Cr.P.C. seeking the petitioners accused on bail. It is his further contention that the Court which passed the order dated 4.9.2017 rejecting the bail application filed by accused Nos.5, 6, 12 and 13 in Sessions Case No.871/2013 is not the Special Court constituted under the NIA Act, 2008 but it is the XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) at Bengaluru. Therefore, it is his contention that when the investigation of the case is not by the investigation team as contemplated under the NIA Act, 2008, the petitioners can maintain the bail petition before this Court under section 439 of Cr.P.C. and they need not 13 file an appeal before the Division Bench of this Court as per Section 21(4) of NIA Act, 2008. In support of his contentions, the learned counsel has relied upon the following judgments:
(i) Bahadur Kora and Others vs. The State of Bihar reported in (2015)4 CCR 204: (2015) Crl.L.J. 2134 (judgment of the Full Bench of the Patna High Court)
(ii) State of Andhra Pradesh Vs. Mohammed Hussain and Saleem, Sadhwi Pragna Singh Thakur Vs. National Investigation Agency reported in (2013)6 ABR 670 (Judgment of the Honb'le Supreme Court)
(iii) The order dated 9.4.2015 passed in W.P. Nos.28468/2014 and other connected matters in the case of A. Bhima Dowlat and others Vs. State of Tamil Nadu, Rep. by its Principal Secretary to Government and others. (Decision of the Madras High Court) Referring to these three judgments, the learned counsel made the submission that the criminal petition filed under Section 439 of Cr.P.C. is maintainable before 14 the learned Single Judge and the bar under Section 21(4) of the NIA Act, 2008 to file an appeal before the Division Bench is not made applicable to the present case. Hence, he submitted to reject the contention of the respondent-State.
6. Per contra, learned High Court Government Pleader appearing for the respondent State made the submission that looking to the order impugned herein, it is passed by the Special Court constituted for the trial of NIA cases, i.e. XLIX Additional City Civil and Sessions Judge at Bengaluru. He also submitted that out of the alleged offences, some of the offences fall under the provisions of the Unlawful Activities (Prevention) Act, 1967 and it is the Schedule Offence to the NIA Act, 2008. Hence, he submitted that whether the investigation is done by the State police or the team constituted under the NIA Act, 2008 is not a criteria to come to the conclusion that the bail petition filed under 15 Section 439 of Cr.P.C. before the trial Court as well as before this Court is said to be maintainable. The learned High Court Government Pleader further made submission that when the offences are the Schedule Offences under the NIA Act, 2008, it is the most important aspect to be taken into consideration. Even if it is assumed that the investigation is done by the State police and the bail order rejecting the bail application has been passed by the Special Court constituted under the NIA Act, 2008, the petitioners have to file the criminal appeal invoking Section 21(4) of the NIA Act, 2008 as held by the Hon'ble Apex Court in case of STATE OF ANDHRA PRADESH VS. MOHAMMED HUSSAIN AND SALEEM, SADHWI PRAGNA SINGH THAKUR VS. NATIONAL INVESTIGATION AGENCY reported in (2013)6 ABR 670. Hence, he submitted that the nature and seriousness of the offences that have been mentioned in the schedule to the NIA Act, 2008, is to be taken into consideration. He further 16 submitted that the criminal petition filed under Section 439 of Cr.P.C. is not maintainable and the petitioners have to file the criminal appeal. In support of his contentions, the learned High Court Government Pleader has relied upon the following judgments :
(i) Sahadath Hossain Vs. State of Kerala (bail application No.7948/2016 dated 29.11.2016/8th Agrahayana 1938 - Division Bench decision of the Kerala High Court)
(ii) Thangaraj @ Tamilarasan and two others Vs. State by the Deputy Superintendent of Police Q-Branch CID, Ramanathapuram Range (Criminal RC (MD) No.370/2014 dated 2.9.2014 of the Madras High Court of Madurai Bench)
7. We have perused the grounds urged in the petition filed under Section 439 of Cr.P.C., the order dated 4.9.2017 passed by the learned Special Judge in S.C. No.871/2013 rejecting the bail application of 17 accused Nos.5, 6, 12 and 13 filed under section 439 of Cr.P.C., the decisions relied upon by both sides which are referred above and also we considered the submissions made at the Bar by the learned counsel on both sides.
8. Looking to the bail petition filed before the Court below and the charge sheet pertaining to crime No.92/2010, the alleged offences come under Sections 120-B, 121, 121-A, 123, 212, 435, 307, 201 of IPC and also under Sections 3, 4, 5 and 6 of Explosive Substances Act, 1908 and also under Section 4 of Prevention of Damage to Public Property Act, 1984 and the offences under Sections 3,10, 11, 13, 16, 17, 18, 19, 20 of Unlawful Activities (Prevention) Act, 1967.
Therefore, if we examine these alleged offences, some of the offences fall under the provisions of the Unlawful Activities (Prevention) Act also. Perusing the NIA Act, 2008, in the schedule at Sl. No.2, the name of the 18 Unlawful Activities (Prevention) Act, 1967, is mentioned. Therefore, they are the Schedule Offences to the NIA Act, 2008.
9. Looking to the particulars about the said Act i.e., Unlawful Activities (Prevention) Act, 1967, the National Integration Council appointed a committee on National Integration and Regionalization to look into, inter alia, the aspect of putting reasonable restrictions in the interests of sovereignty and integrity of India. Pursuant to the acceptance of recommendations of the Committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. In order to implement the provisions of 1963 Act the Unlawful Activities (Prevention) Bill was introduction in the Parliament.
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10. Perusal of the statement of objects and reasons of the Unlawful Activities (Prevention) Act, 1967, it is stated that pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India on the -
(i) freedom of speech and expression;
(ii) right to assemble peaceful and without
arms; and
(iii) right to form associations or unions. The object of this Bill is to make powers available for dealing with activities directed against the integrity and sovereignty of India. Ultimately, the Unlawful Activities (Prevention) Bill having been passed by both the Houses of Parliament received assent of the 20 President on 30th December 1967 and it came on the statute book as Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967).
11. We have also perused the statement of objects and reasons of the National Investigation Agency Act 2008, wherein it is mentioned that over the past several years, India has been the victim of large scale terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by Left Wing Extremism, but also in the form of terrorist attacks and the bomb blast etc. in various parts of the hinterland and major cities etc. A large number of such incidents are found to have complex inter-State and international linkages, and possible connection with other activities like the smuggling of arms and drugs, pushing in and circulation of fake Indian currency, infiltration from across the borders 21 etc. Keeping all this in view, it has for long been felt that there is need for setting up an Agency at the Central level for investigation of offences related to terrorism and certain other Acts, which have national ramifications. Several experts and Committees, including the Administrative Reforms Commission in its Report, have also made recommendations for establishing such an Agency.
The Government after due consideration and examination of the issues involved, proposes to enact a legislation to make provisions for establishment of a National Investigation Agency in a concurrent jurisdiction framework, with provisions for taking up specific cases under specific Acts for investigation, provisions for setting up of Specific Courts and for other related matters. These provisions are proposed to be incorporated in the National Investigation Agency Bill, 2008.
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12. Learned counsel for the petitioners-accused mainly contended that the alleged offences fall under the provisions of the Unlawful Activities (Prevention) Act, 1967 may be the Schedule Offences, but that itself is not sufficient to come to the conclusion that any order passed by the Sessions Court established under the Criminal Procedure Code is not the Special Court constituted under Section 11 by the Central Government or under Section 22 by the State Government under the NIA Act, 2008. This petition filed under Section 439 of Cr.P.C. is appealable. He contended that as the investigation in this case is conducted by the State Police and not by the Special Agency under the NIA Act, 2008, and as the order passed by the Court below on the application under section 439 of Cr.P.C. is the Sessions Court and not the Special Court constituted under the NIA Act, 2008, the petition filed under section 439 seeking bail before this Court is maintainable and under such situation, filing 23 of an appeal before the Division Bench as per Section 21(4) of the NIA Act, 2008 does not arise.
13. We have perused the entire material and the decisions relied upon by both sides for bringing the offences committed under the provisions of Unlawful Activities (Prevention) Act, 1967 into the schedule of the NIA Act, 2008. There is specific object in view of the seriousness and gravity of the said offences and even by commission of such offences, there may be threat posed to the sovereignty and integrity of India. With this specific object and to put some restrictions on the persons alleged to have committed such offences, the said offences were brought under the schedule to NIA Act, 2008.
14. It is no doubt true, the procedure as contemplated under Sub-section (1) of Section 6 of the NIA Act, 2008, is that, on receipt of information and 24 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. As per Sub-section (2) of Section 6, the procedure is mentioned that on receipt of the report under Sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible. As per sub Section (3) of section 6, 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 15 days from the date of receipt of the report, whether the offence is 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. As per sub Section (4) of Section 6, it is stated that where Central Government is of opinion that the offence is a Scheduled Offence and that it is a fit case to 25 be investigated, it shall direct the Agency to investigate the said offence.
15. In the case on hand, perusal of the order produced by the petitioners themselves, it is the order passed by the XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) at Bengaluru. Therefore, this goes to show that the Court which passed the order is the Special Court under the NIA Act, 2008. Therefore, by seeing the said order itself, the contention of the learned counsel of the petitioners that the Court which passed the order is only the Sessions Court and not the Special Court established under the NIA Act, 2008, cannot be accepted. Therefore, when the bail application has been rejected by the said Court, then as per Section 21(4) of the NIA Act, 2008, an appeal lies to the Division Bench of the High Court and the petition filed under Section 439 of Cr.P.C. is not maintainable.
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16. Apart from that, we have also perused the provision Section 22(3) of the NIA Act, 2008, which reads as under:
Section 22: Power of State Government to constitute Special Courts -
(1) 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; (2) xxxx xxxx xxxx (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.
17. Therefore, the wordings specified in Section 22(3) of the NIA Act, 2008, also made it clear that if 27 such Special Courts are not established or constituted by the State Government, then 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 in the said chapter of the NIA Act, 2008. It can also be understood that if the trial is going on before the Court of Session and at that movement, if the Special Court is constituted, then, under such circumstances, the said trial proceedings before the Court of Session can be transferred to the Special Court so constituted. Therefore, even looking to this provision, it goes to show that the intention of the legislators that if the offences are the Schedule Offences under the NIA Act, 2008, then in that case, the special procedure is to be adopted for trial of such offences. As we have already referred at the beginning of this order that the impugned order passed by the Court below mentioned is also a Special Court under the NIA Act, 2008, then the order of such Court can be challenged only in an appeal invoking Section 21(4) of the NIA Act, 28 2008, before the Division Bench of the High Court as held by the Hon'ble Apex Court in case of STATE OF ANDHRA PRADESH VS. MOHAMMED HUSSAIN AND SALEEM, SADHWI PRAGNA SINGH THAKUR VS.
NATIONAL INVESTIGATION AGENCY reported in (2013)6 ABR 670and the petition filed under Section 439 of Cr.P.C. is not maintainable. Therefore, even if it is assumed that XLIX Additional City Civil and Sessions Court, Bengaluru, is not the Special Court constituted by the State Government, even then, the petitioners cannot maintain the petition under Section 439 of Cr.P.C.
18. During the course of arguments, the learned counsel for the petitioners-accused submitted that LXVIII Additional City Civil and Sessions Court, Bengaluru is the Court established as a Special Court for trial of NIA cases under the NIA Act, 2008 and not the LXIX Additional City Civil and Sessions Court. But for this, the learned HCGP made the submission that the LXIX Additional City Civil and Sessions Court is also 29 conferred with the concurrent jurisdiction of the LXIX Additional City Civil and Sessions Court. Therefore, considering the entire matter, we are of the opinion that the contention of the learned counsel for the petitioners that merely because the investigation of the case is conducted by the State police and not by the investigation Agency and hence, the petitioners can maintain the petition under Section 439 of Cr.P.C., cannot be accepted at all.
19. Hence, we reject the petition holding that it is not maintainable under Section 439 of Cr.P.C. and only the appeal is maintainable under Section 21(4) of the NIA Act, 2008.
Sd/-
JUDGE Sd/-
JUDGE Cs/-