Punjab-Haryana High Court
Naba Kumar Sarkar Alias Swami Asima Nand vs National Investigating Agency on 2 September, 2011
Author: S.S. Saron
Bench: S.S. Saron, Jora Singh
Criminal Appeal No.D-780-DB of 2011 :1:
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
Criminal Appeal No.D-780-DB of 2011 (O&M)
Date of decision: 02.09.2011
Naba Kumar Sarkar alias Swami Asima Nand .....Appellant
Versus
National Investigating Agency ....Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE JORA SINGH
Present:- Mr. R.S. Rai, Sr. Advocate along with
Mr. Vishal Garg,Advocate
for the appellant.
Mr.S.S. Sandhu, Standing counsel
for respondent-NIA.
----
S.S. Saron, J.
This appeal has been filed by Naba Kumar Sarkar alias Swami Asima Nand under Section 21 of the National Investigation Agency Act 2008 ('Act' for short) against the order dated 17.08.2011 passed by the learned Additional Sessions Judge, National Investigation Agency, Special Court, Panchkula, whereby the National Investigation Agency (NIA for short) has been allowed to unseal the material objects of the case as mentioned in Annexure-A with the application in the presence of learned counsel for the accused and after comparison to reseal the same.
Notice was issued to the respondent NIA and it has appeared and filed its reply.
The facts of the case are that FIR No.28 dated Criminal Appeal No.D-780-DB of 2011 :2: 19.02.2007 was registered at Police Station Government Railway Police (GRP for short) Karnal (Haryana) on the basis of a telephonic message received at the Police Station at 3:00 a.m. from ASI Ranjit Singh, Police Post, GRP, Panipat. In terms of the information, two coaches (No.GS 03431 and GS 14857) of train No.4001 UP Attari Express (Samjhauta Express), which had departed from Railway Station Diwana at 11:53 p.m. caught fire. The incident occurred between Diwana and Panipat (KM No.82/2-7). The initial investigations brought out that the coaches had caught fire as a result of two bomb explosions. Due to the explosions and subsequent fire, 68 persons (64 civil passengers and 4 Railways officials) were killed, besides, 12 persons were injured. This seditious act of terrorism was committed with an aim to kill the civilian passengers, Railways and Police officials on duty in the train.
The initial investigation was done by Railway Protection Force/Special Investigation Team, Haryana Police. Thereafter, in terms of order dated 26.07.2010, the Government of India, Ministry of Home Affairs (Internal Security-I Division) (IS-1 Desk) issued an order to the effect that the Central Govrnment had received information from the State Government of Haryana about FIR No.28 dated 19.02.2007 registered at Police Station Karnal, Haryana under Sections 302, 307, 124-A, 438 and 440 of the Indian Penal Code ('IPC' for short), besides, Sections 3, 4 and 6 of the Explosive Substances Act 1908, Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 150, 151 and 152 of the Railways Act, relating to Samjhauta Express bomb-blast. In Criminal Appeal No.D-780-DB of 2011 :3: exercise of the powers conferred by sub-section (4) of Section 6 read with Section 8 of the Act, the Central Government directed the NIA to take up the investigation of the aforesaid case and such other offences as may come to light during the investigation. It is in consequence of the said order that the NIA took up the investigation of the case by registering a case as CR No.09/2010 dated 29.07.2010. During investigations it was brought out that on 18.02.2007, Train No.4001 UP Attari Express (Samjhauta Express) was stationed at platform No.18 of Railway Station Delhi junction for departure to Attari. As per its schedule, at about 10:50 p.m. the train departed from the platform for Attari. Sh. Kiran Diwan, Sh. Sanjay Kumar and Sh. R.D. Singh were deputed as driver, co-driver and guard respectively of the said train. Besides, there were three railway officials namely, Sh. Shaukat Ali Head TTE, Sh. Rajesh Sharma TTE and Sh. Lalit Kumar TTE. The train had 16 coaches, four of the coaches were reserved and the remaining were unreserved.
In pursuance of the criminal conspiracy, it is alleged that the accused persons with the common intention and motive caused explosion in 4001 Delhi-Attari Express (Samjhauta train) on the intervening night of 18th/19th Feb 2007 at about 11:53 p.m. while it was passing through Diwana Railway Station near Panipat, Haryana. Two unreserved coaches caught fire after the explosion. As a result, 67 persons were killed, 13 got injured who were shifted to Safdarjung Hospital, New Delhi for treatment. One more person succumbed to his injuries at the Safdarjung Hospital, New Delhi. The number of person who died rose to 68 and 12 person were injured. Criminal Appeal No.D-780-DB of 2011 :4:
The investigations revealed that, four Improvised Explosive Devices (IEDs for short) were planted in the unreserved compartments, out of which the IED placed in the 12th compartment and the 13th compartment exploded. The explosion was followed by fire in the compartments. One unexploded IED was recovered from the 15th compartment, which exploded in the process of its diffusion by the technical personnel. Besides, one unexploded IED in a suitcase was recovered from the spot down the railway line (on the railway track near the 15th compartment).
The case, therefore, according to the NIA pertains to a terrorists blast carried out by a group of people in pursuance of a criminal conspiracy with an intent to threaten the unity, integrity, security and sovereignty of India and to strike terror in the people of India and in a foreign country. The matter used was IEDs along with inflammable substances, which caused blasts in the Attari Express (Samjhauta Express) train at Panipat on 18.02.2007. This blast and consequent fire in the train resulted in the death of 68 persons and injuries to12 persons including women and children in the same train. In this terrorist Act, not only Indian-civilians and Government Officials got killed and injured but a large number of Pakistani nationals also got killed. On completion of the investigations a police report (challan) was filed on 20.06.2011. It may also be noticed that during investigation of the case, Naba Kumar Sarkar (appellant) made a confessional statement on 15.01.2011 (Annexure D-8) before the learned Chief Judicial Magistrate, Panchkula. On the basis of the said statement it is contended on behalf of the NIA that the appellant Criminal Appeal No.D-780-DB of 2011 :5: has admitted his involvement in the conspiracy to cause the Samjhauta Express train blast. The police report (challan) in the case has been filed against five accused persons including the appellant.
After filing the police report (challan) the NIA filed an application dated 10.08.2011 (Annexure D-1) in the Court of the Ld. Special Judge, NIA, Panchkula praying for unsealing the seized material objects as mentioned in Annexure A to the application for comparison of IEDs seized in this case by experts with IEDs seized in other blast cases at various places in India. It is submitted that the material objects as per enclosed Annexure 'A' seized during investigation of the present case was presently available in the Malkhana, NIA Office, Panchkula. It is further submitted that apart from the present case, the NIA is investigating some other bomb blast cases viz. Ajmer blast case, Hyderabad Mecca Masjid blast case, Malegaon blast case and Moddasa blast case. To unearth the larger conspiracy behind these blast cases, the comparison of IEDs as well as other material objects of this case with the IEDs and other material of other cases as aforesaid is required to be done by a team of experts from the Central Forensic Science Laboratory, Hyderabad and for that purpose it is necessary to unseal the material objects of this case and after doing the needful, the same shall be resealed and deposited in the Malkhana of NIA Camp Office, Panchkula. Therefore, a direction was sought to unseal the material objects of the present case and hand over the same to the experts for making comparison and then reseal the same after doing the needful. The learned Additional Sessions Judge, NIA, Panchkula vide impugned Criminal Appeal No.D-780-DB of 2011 :6: order dated 17.08.2011 allowed the said application dated 10.08.2011 (Annexure D-1) which order has been assailed in the present appeal.
Sh. R.S. Rai, learned Senior Advocate with Sh. Vishal Garg, Advocate for the appellant has contended that the impugned order is absolutely erroneous. It is submitted that the application (Annexure D1) that was filed by the NIA was not filed under any provision of the Code of Criminal Procedure ('CrPC'- for short). Therefore, such an application was not maintainable. It is submitted by submitting the application (Annexure D-1) a re-investigation of the case is sought to be done whereas a re-investigation cannot be done without permission of the Court, which has not been taken. It is further submitted that the comparison of the IEDs used in this bomb blast with the IEDs used in other bomb blasts would result in great prejudice to the appellant as he is an accused in two other cases and and his defence in the said cases would be affected.
Mr. S.S. Sandhu, learned Standing counsel for the Central Government appearing for the NIA has submitted that NIA is to carry out only further investigation to unearth the larger conspiracy of the blast cases that have occurred in the various parts of the country. It is submitted that bomb blast that had occurred in the Samjhauta Express which is subject matter of the present case; besides, other blast cases of Ajmer blast case, Hyderabad Mecca Masjid blast case, Malegaon blast case and Moddasa blast cases are to be further investigated. Therefore, a comparison of the IEDs and other material used in the Samjhauta Express bomb blast is to Criminal Appeal No.D-780-DB of 2011 :7: be done with the IEDs and other material used in the bomb blast cases of Ajmer, Hyderabad Mecca Masjid, Malegaon and Moddassa by the Central Forensic Laboratory, Hyderabad. Reference has been made to the orders (Annexures D-2 to D-4) passed in other cases by the trial judges whereby such investigations have been allowed and the orders have since been implemented even, Sh. R.S. Rai, however, submits that the orders (Annexures D-2 to D-4) are exparte orders and the appellant is in the process of assailing the same and these have come to the notice of the appellant after the filing of reply by the respondent NIA.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record. It may be noticed that the Police Report (challan) has been filed by the NIA on 26.07.2011 with respect to the incident of bomb blast that occurred in the Attari Express (Samjautha Express) train on 18.02.2007 at Panipat. The blast and the consequent fire in the train resulted in death of 68 persons and injuries to 12 persons which includes women and children. In the act not only Indians and Government Official were killed but a large number of Pakistani nationals were also killed. It is submitted that it is this train which facilitates the travel of passengers between two nations i.e. India and Pakistan that the bombs were planted so that there are blasts and fear is created. This it is submitted was an act of terror and it is pursuance of the conspiracy which was hatched by the accused as has been confessed in the confessional statement (Annexure D-8) of the appellant which was Criminal Appeal No.D-780-DB of 2011 :8: recorded by the CJM, Panchkula on 15.01.2004. In order to carry out further investigations of the other cases that the NIA seeks to compare the IEDs as well as other material objects of the present case with IEDs and other material of other cases by a team of experts from Central Forensic Science Laboratory, Hyderabad. For the purposes of further investigation, the permission of the Court is not required as the investigating agency has a statutory right to carry out further investigation in terms of Section 173(8) CrPC. In Rama Chaudhary others versus State of Bihar 2009 (2)RCR (Criminal) 570, it was held by the Supreme Court that after submission of charge sheet, police has a right of further investigation under Section 173(8) Cr.P.C. without prior permission of the Magistrate. It was held that in terms of Section 173(8) CrPC further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out further investigation viz. after filing of charge sheet is a statutory right of a police. It was, however, held that without permission reinvestigation is prohibited. In Ram Lal Narang Versus State (Delhi Administration) 1979 SCC (Criminal) 479, it was held that it is a statutory right to further investigate by the police after submitting its report under Section 173(1) Cr.P.C. even where a Magistrate has already taken cognizance of the case. It was further observed that Police should ordinarily seek formal permission for further investigation but in the absence of malice, the failure to do so would not render the investigation illegal. In State of Andhra Pardesh Vs. A.S. Peter (2008) (1) SCC (Criminal) 427, it was held Criminal Appeal No.D-780-DB of 2011 :9: that the law does not mandate taking of prior permission from Magistrate for further investigation. Carrying of further investigation even after filing the charge sheet is a statutory right of the police. The police can exercise such right as often as necessary when fresh information comes to light. The Magistrate also has a discretion in the matter to direct further investigation if he had taken cognizance of the offence. It was, however, observed that re-investigation without prior permission is necessarily forbidden.
Therefore, once the stand of NIA-respondent is that it is conducting further investigations of the cases and in the absence of any malice or illegality, the failure to obtain formal permission for further investigation will not render the impugned order illegal.
As regards, the contention of the learned Senior Counsel for the appellant that specific provision or the specific section of CrPC has not been mentioned in the application dated 10.08.2011 (Annexure D-1) praying for unsealing the material objects for comparison purposes with IEDs in other blast cases, it may be noticed that the NIA is only seeking permission for unsealing the material objects of the present case for the purposes of comparison by experts of the Central Forensic Science Laboratory, Hyderabad. In State of Haryana Vs Bhajan Lal, AIR 1992 SC 604, it was held that the investigation of a cognizable offences is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code (CrPC) and the Criminal Appeal No.D-780-DB of 2011 :10: Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code (CrPC) is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted.
The respondent-NIA, has, therefore, a right to investigate and for that purpose to unseal the material objects lying in the NIA Camp Office at Panchkula. Accordingly, permission of the Court to unseal the material has been sought by filing an application dated 10.08.2011 (Annexure D-1). The mere fact that provisions of the CrPC are not mentioned in the application (Annexure D-1) for unsealing the seized material objects for comparison of IEDs seized in the present case by experts with IEDs seized in other blast cases in India would not render the impugned order in any manner illegal. In fact the purpose of filing the application (Annexure D-1) is to further investigate the matter in respect of which the powers of the investigating authority are unfettered as noticed above. Therefore, the mere non-mentioning of the provision under which the application (Annexure D-1) was filed is inconsequential.
As regards the prejudice that has been alleged on behalf of the appellant, it has not been shown as to how and in what manner prejudice would be caused to the appellant in the further investigations of cases. The NIA-respondent is only seeking to compare the material seized in the bomb blast in the present case Criminal Appeal No.D-780-DB of 2011 :11: with the material that has been seized in the bomb blasts that have occurred at Ajmer, Hyderabad Mecca Masjid , Malegaon blast case and Moddasa. In case there is any similarity in the blast it would help the respondent-NIA to proceed against the culprits in accordance with law. In case the material is not the same, it may help the appellant. Therefore, it can not be said that any prejudice would be caused to the appellant in case the comparison of the IEDs in the present case is allowed to be conducted with the IEDs in the other bomb blasts.
There is, therefore, no merit in the appeal and the same is accordingly dismissed and the order dated 17.08.2011 passed by the learned trial court is upheld. The case before learned trial court is listed for 13.09.2011. The parties shall appear before the learned trial court on 13.09.2011. The learned trial Court shall give permission to the experts of the Forensic Science Laboratory, Hyderabad to unseal the IEDs in the present case deposited in the Malkhana Camp Office, Panchkula for comparison by the experts from the Central Forensic Science Laboratory, Hyderabad for which fresh dates shall be given in terms of its order dated 17.08.2011.
(S.S. SARON) JUDGE (JORA SINGH) JUDGE 02.09.2011 sonika