Mahesh vs Central Bureau Of Investigation on 19 January, 2016

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Kerala High Court

Mahesh vs Central Bureau Of Investigation on 19 January, 2016

The application for default bail filed by Accused Nos.22, 23 and 24 in the case was dismissed by the learned Sessions Judge, Thalassery as per order dated 8.1.2016 in Crl.M.P.No.76/2016. This criminal appeal is filed by accused Nos. 22, 23 and 24 challenging the order passed by the Sessions Court.

2. Originally Crime No.780/2014 of Kadirur Police Station was registered in respect of the incident in question. Later, the investigation of the case was handed over to the Crime Branch police. The Crime Branch incorporated the offences under the Unlawful Activities ( Prevention) Act. Thereafter, the Central Bureau of Investigation took over the investigation of the case at the instance of the State Government. The C.B.I. re-registered the case as RC 10(S)/ 2014/CBI/SCB/Thiruvananthapuram. The C.B.I. sought permission to Crl.Appeal No.50/2016 2 conduct further investigation. The appellants were included in the case by the C.B.I. as accused Nos. 22, 23 and 24 and they were arrested on 9.7.2015. The offences alleged against the appellants are under Section 120 B read with Sections 143, 147, 148, 201, 202, 212, 324, 307, 302 and 149 of IPC, Sections 3 and 5 of the Explosive Substances Act, Section 15(1)(a) read with 16(a) and Section 19 of the Unlawful Activities ( Prevention) Act and Section 27 of the Arms Act. The investigation is going on. In so far as accused Nos. 22, 23 and 24 are concerned, final report was not filed by the C.B.I. within the period of 180 days from the date of remand. Therefore, accused Nos. 22, 23 and 24 filed Crl.M.P.No.76/2006 before the court below under the proviso to Section 167 (2) of Cr.P.C. for default bail. The court below dismissed the application as per order dated 8.1.2016 on the ground that default bail could not be granted since the Honourable Supreme Court had granted stay in SLP No.6854/2015.

3. After the C.B.I. took over investigation and after they re-registered the F.I.R., they submitted the same before the Chief Judicial Magistrate's Court, Ernakulam, the designated court for C.B.I. Crl.Appeal No.50/2016 3 cases. The view taken by the C.B.I. was that the Chief Judicial Magistrate, Ernakulam has to commit the case to the Sessions Court, Ernakulam and later the case has to be made over to the C.B.I. Special Court for trial. Meanwhile, accused No.4 filed a bail application before the Sessions Court, Thalassery and that application was dismissed. Accused No.4 filed Crl.Appeal No.1084/2014 before this Court. The C.B.I. raised a question of lack of jurisdiction for the Sessions Court to deal with the application. A Division Bench of this Court, which heard Crl.Appeal No.1084/2014, raised issue Nos. 1 and 2 as follows :

" i. Is the impugned order appealable under Section 21 of the NIAAct ?

Ii Could the proceedings being now carried through in the court of the Chief Judicial Magistrate, Ernakulam at the instance of the CBI, be permitted to continue there ?"

4. The Division Bench answered issue Nos. 1 and 2 quoted above in the following manner :

Crl.Appeal No.50/2016 4

Issue Nos.i and ii

8. Section 2(1)(a) of the NIA Act defines the term "Agency" to mean the National Investigation Agency constituted under section 3 of that Act.

"Scheduled Office" is defined in Section 2(1)(g) of the NIA Act to mean an offence specified in the Schedule to that Act. The UAP Act is one of the legislations included in that Schedule. "Special Court" is defined in Section 2(1)(h) to mean a Special Court constituted under Section 11 or, as the case may be, under section 22 of that Act. Section 11 empowers the Central Government to constitute Special Courts for the trial of the scheduled offences. Section 22 provides that the State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule. Sub- section 2 of Section 22 prescribes modifications to the other relevant statutory provisions of the NIA Act, for the smooth operation of the statutory provisions in Section 22. The provision in sub- section 3 of Section 22 of the NIA Act is until a Special Court is constituted by the State Government under Section 22(1), notwithstanding Crl.Appeal No.50/2016 5 anything contained in the Code, the jurisdiction conferred by the NIA Act on a Special Court shall 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 Chapter IV of the NIA Act. Therefore, notwithstanding anything contained in the Code of Criminal Procedure, a case of any offence specified in the Schedule of the NIA Act can be tried only by a Special Court constituted by the Central Government under Section 11 or a Special Court constituted by the State Government under Section 22(1) of that Act and in the absence of and until a Special Court is constituted by the State Government, the jurisdiction to try such an offence is exclusively with the Court of Session of the division in which such offence has been committed and that Court of Session shall have all the powers and shall follow the procedure provided under Chapter IV. Under Section 16(1), a Special Court is empowered to take cognizance of any offence, either on a complaint or on a police report, without the accused being committed to it for trial. No committal proceedings are, therefore, provided for. Crl.Appeal No.50/2016 6 As rightly held in Ashruff (supra), since the Court of Session of the division in which the offence has been committed is enjoined with the authority to exercise the powers of the Special Court until a Special Court is constituted by the State Government, that Court is also empowered to take cognizance of the offence without a committal. We approve the views expressed and the law stated in Ashruff (supra) in that regard.

9. The aforesaid leads to the resultant conclusion that any judgment, sentence or order of the Sessions Court which exercises jurisdiction in terms of sub-section 3 of Section 22 of the NIA Act is to be treated as one made by a court competent as a Special Court until the trial gets transferred to a Special Court on and from the date of its constitution. This is inexcusable on a conjoint reading of the different sub-sections of Section 22, and in particular, sub-sections 3 and 4 thereof. Therefore, an appeal shall lie to the High Court against an order of the Court of Session which acts in lieu of a Special Court in terms of the statutory authority under Section 22(3) of the NIA Act. Such Crl.Appeal No.50/2016 7 an appeal would be available under Section 21(1) against any judgment, sentence or order, not being an interlocutory order. In so far as bail jurisdiction is concerned, an order of that Court of Session granting or refusing bail is appealable under Section 21(4) of the NIA Act notwithstanding anything contained in sub-section (3) of Section 378 of the Code of Criminal Procedure.

10. The procedural situation in the case in hand, as it now stands, is not different from the erroneous situation noted in Ashruff (supra). We approve the procedure adopted by the learned single Judge in Ashruff (supra) and follow it as a precedent. There is no dispute that in the case in hand, the allegations are as to commission of offences within the territorial jurisdiction of the Sessions Court of the Sessions division, Thalassery. The offences are alleged to have committed within that jurisdiction. Therefore, the proceedings now pending before the Chief Judicial Magistrate, Ernakulam have to be stopped and necessary orders have to be issued facilitating the Court of Session, Thalassery to deal with the matter.

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Crl.Appeal No.50/2016 8

In the result,

a) The appeal is dismissed.

b) The Chief Judicial Magistrate, Ernakulam is directed to transmit all records in Crime No.780/2014 of Kadirur Police Station to the Sessions Court, Thalassery within one week of receipt of a copy of this order. The Sessions Judge shall, thereupon, pass orders as may be necessary and called for. The remand of the accused shall be extended by the Sessions Judge for appropriate periods until the Sessions Judge finds good reasons for release of any of the accused persons. All requests for remand extension of any of the accused persons shall hereafter be made before the Court of Session, Thalassery.

5. Pursuant to the directions issued by the Division Bench in Crl.Appeal No.1084/2014, the entire records were transmitted from the Court of Chief Judicial Magistrate, Ernakulam to the Sessions Court, Thalassery. It is submitted that C.B.I. filed several remand applications to extend the remand of several accused persons before the Sessions Court, Thalassery thereafter and orders were issued by the Sessions Court, Thalassery.

Crl.Appeal No.50/2016 9

6. Thereafter, the C.B.I. filed S.L.P.No.6854/2015 before the Honourable Supreme Court challenging the directions in Crl.Appeal No.1084/2014. The Supreme Court passed the following order dated 17.08.2015 in S.L.P.No.6854/2015.

" Learned counsel appearing for the petitioner has handed over to us in Court today a copy of the communication dated 13.08.2015 depicting the fact that the State of Kerala had intimated the Central Government for making over the matter to the NIA. But the Government of India did not accept the proposal. Thereafter, the State Government issued a notification entrusting the investigation of the case to the Central Bureau of Investigation.

Delay condoned.

Issue notice.

In the meanwhile, the operation of the impugned order shall remain stayed."

7. There is no dispute that after the remand of accused Nos.22, 23 and 24 ( appellants), 180 days elapsed. There is also no dispute that till date no final report is filed by the C.B.I. as against accused Nos.22 to 24, either before the Sessions Court, Thalassery or before the Chief Crl.Appeal No.50/2016 10 Judicial Magistrate's Court, Ernakulam. If so, accused Nos.22 to 24 would get an indefeasible right to get default bail under the proviso to Sub Section 2 of Section 167 of Cr.P.C. The interim stay granted by the Honourable Supreme Court, in our view, would not stand in the way of the court to deal with an application filed by the accused for default bail. Accused Nos. 22 to 24 are in judicial custody and that judicial custody cannot be extended so long as the final report is not filed in the case . As stated earlier, accused Nos. 22 to 24, are entitled to default bail and they are liable to be released forthwith.

In the result, Crl.Appeal is allowed. The order impugned is set aside and the appellants ( Accused Nos. 22 to 24) are released on bail on the following conditions :

1)The appellants shall execute a bond for Rs.50,000/- ( Rupees fifty thousand only) each with two solvent sureties for the like amount to the satisfaction of the Sessions Court, Thalassery.

2)The appellants shall report before the Dy.Supdt. of Police, ACB, CBI, SPE, Cochin, who is the Investigating Officer in charge of the case as and when required without fail. Crl.Appeal No.50/2016 11

3)The appellants shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence of the prosecution.

4)The appellants shall surrender their passports, if any, before the Sessions Court, Thalassery, at the time of executing bail bond.

In case they are not holding any passport, they shall file an affidavit to that effect before the Sessions Judge, Thalassery, while executing the bail bond.

5)The appellants shall not commit any offence nor shall they involve in any prejudicial activity while on bail.

6)In case the appellants commit breach of any of the above conditions, the bail granted to them shall be liable to be cancelled.

K.T.SANKARAN, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.

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