Karnataka High Court
Thufail. M. H vs National Investigation Agency (Nia) on 17 July, 2023
-1-
NC: 2023:KHC:24861-DB
WP No. 12564 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 12564 OF 2023 (GM-RES)
Between:
Thufail M.H.,
Aged about 36 years
S/o. Hameed M.H.,
R/at No.24/126,
Behind Gaddige,
Madikere, Kodagu
(Petitioner is in JC)
...Petitioner
Digitally signed (By Sri Mohammed Tahir, Advocate)
by SRIDEVI S
Location: HIGH
COURT OF And:
KARNATAKA
National Investigation Agency (NIA)
Ministry of Home Affairs GOI
Rep. by Standing Counsel
Office at High Court Complex
Opp. to Vidhana Saudha
Bengaluru- 560001
...Respondent
(By Sri P.Prasanna Kumar, Advocate)
-2-
NC: 2023:KHC:24861-DB
WP No. 12564 of 2023
This Writ Petition is filed under Articles 226 and 227 of
Constitution of India read with 482 of Cr.P.C., praying to set
aside the order dated 13/03/2023 passed by the Hon'ble 49th
Additional City Civil and Session Judge and Special Court of NIA
cases, Bengaluru CCH-50 in Spl.C.C.No.123/2023 same at
Annexure-A, wherein the petitioner as Accused No.20, and
consequently quash the subsequent test identification parade in
pursuance of this impugned order.
This Writ Petition, coming on for preliminary hearing,
this day, Sreenivas Harish Kumar J., made the following:
ORDER
Accused no.20 in Spl.C.C.123/2023 on the file of Spl. Court for trial of NIA cases, Bengaluru has sought to quash the order dated 13.3.2023 passed on an application under section 54A of Cr.P.C. and the consequent test identification parade (TIP).
2. We have heard the arguments of Sri. Mohammed Tahir, learned counsel for the petitioner and Sri. P.Prasanna Kumar, learned counsel for the respondent.
3. Sri. Mohammed Tahir argues that the Special Court should not have allowed the application filed under section 54A of Cr.P.C. by the NIA for the purpose of identification of the petitioner by the protected witnesses. His argument is that the protected witnesses, S to W have -3- NC: 2023:KHC:24861-DB WP No. 12564 of 2023 stated nothing about the petitioner in their statements under section 161 Cr.P.C. and in spite of that if the Special Court granted permission to hold TIP, it was nothing but wrong exercise of jurisdiction. His argument is that the witnesses can be asked to identify an accused only if it is forthcoming in their statements that they had an occasion to see the accused. Without such statements being made, if the witnesses are made to identify an accused holding TIP, such a TIP is tainted one. For this reason, firstly the Special Court should not have granted permission when NIA filed an application under section 54A of Cr.P.C. Secondly the TIP consequent to the order gets vitiated and hence it should be quashed.
4. Sri. P.Prasanna Kumar submits that the protected witnesses came forward to identify the petitioner as they happened to see him when he was imparting training to other accused. Their statements clearly disclose that they have seen the accused on the backside of the main building of freedom community hall which is surrounded by trees and bushes. Therefore the investigating officer -4- NC: 2023:KHC:24861-DB WP No. 12564 of 2023 thought of holding TIP and sought permission of the court. There is no illegality in obtaining permission under section 54A Cr.P.C. He further argues that if TIP is tainted and the protected witnesses were not competent to identify, the order passed by the special court on the application under section 54A Cr.P.C. and the TIP held thereafter cannot be challenged by filing a writ petition. If according to the petitioner, his identification in TIP was impossible and thereby it cannot be believed, he has to question the witnesses during trial. Based on the evidence, the court will decide whether to believe the TIP or not. The writ court is not meant for giving a finding on the credibility of TIP as it lies within the domain of the trial court. He argues for dismissing the writ petition.
5. Examined whether the petitioner can question the TIP, we have to state that TIP is a part of investigation for the purpose of identification of the accused involved in commission of crime. There are catena of decisions on the point as to when TIP is to be held and it is not necessary to refer to them. If in the light of the grounds urged by -5- NC: 2023:KHC:24861-DB WP No. 12564 of 2023 Sri. Mohammed Tahir if the credibility of TIP is doubtful, it is a matter to be decided by the trial court at the time of appreciation of evidence. The witnesses who will be examined in the court for establishing TIP may be questioned and depending upon their answers, the trial court will have to draw suitable inferences whether TIP is to be believed or not. If the trial court grants permission for conducting TIP, it cannot be questioned as it amounts to interfering with the investigation process. The High Court cannot exercise jurisdiction under section 482 of Cr.P.C. for quashing the TIP as it requires to be tested by the trial court. In this view we do not find any merit in the writ petition and therefore it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE sd List No.: 1 Sl No.: 5