Kerala High Court
Soofia vs N.I.A on 10 November, 2016
Author: B.Sudheendra Kumar
Bench: C.K.Abdul Rehim, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938
CRL.A.No. 1127 of 2016 ()
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AGAINST THE ORDER IN CRL.M.P.173/2016 IN
SC 4/2010/NIA IN SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM
APPELLANTACCUSED NO.10:
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SOOFIA
AGED 39, W/O. ABDUL NAZAR MAUDANI,
AL-ABRAR, DESABHIMANI ROAD, KALOOR, KOCHI-17.
BY ADVS.SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.M.VIVEK
SRI.A.RAJESH
SRI.B.KRISHNA KUMAR
RESPONDENT/COMPLAINANT:
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N.I.A
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY SRI.M.AJAY, SPL. P.P FOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10-11-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM &
B.SUDHEENDRA KUMAR, JJ.
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Crl. Appeal No.1127 of 2016
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Dated this the 10th day of November 2016
JUDGMENT
C.K.Abdul Rehim J., The above Crl. Appeal is filed under Section 21(4) of the National Investigation Agency Act, 2008, challenging the order of the Special Court for trial of NIA cases, Ernakulam, in Crl.M.P. No.173 of 2016 in S.C. No.4/2010/NIA. The appellant is the 10th accused in Crime No.469 of 2005 registered originally at the Kalamasserry Police station, which was subsequently re-registered and Crl.A.1127/2016 :: 2 ::
investigated by the N.I.A. The case in question was registered in connection with an incident which happened on 9.9.2005, when a transport Bus belonging to the Tamil Nadu Government Transport Corporation was hijacked and set to fire at Kalamassery. Originally the case was registered alleging offences punishable under Sections 364, 323, 506(ii) and 436 I.P.C. read with Section 34 I.P.C. and Section 4 of the P.D.P.P. Act and Section 27 of the Arms Act. Subsequently, offence punishable under UA(P) Act was also incorporated. The case is now pending trial before the Special Court for trial of NIA cases, Ernakulam.
2. In the year 2009 when the case was registered, the appellant was arrested by the local police. By virtue of Annexure -A order of the Sessions Court, Ernakulam, dated Crl.A.1127/2016 :: 3 ::
23.12.2009, she was granted bail subject to stringent conditions imposed. One among the conditions imposed was that, the appellant shall not leave the territorial limits of Ernakulam District without getting permission of that court and that she shall not in any way interfere with the investigation of the case by influencing or intimidating anyone acquainted with the facts of the case. The appellant was also directed to surrender her passport before the Magistrate court concerned.
3. Crl.M.P. No.173 of 2016 was filed before the Special Court for trial of NIA cases seeking deletion of the above mentioned condition with respect to the restriction against the leaving the territorial limits of Ernakulam District, alleging that due to the said restriction, the Crl.A.1127/2016 :: 4 ::
appellant is now compelled live separated from her family and relatives, who are residing outside the limits of Ernakulam District and that she is prevented from taking care of her physically handicapped husband, who is sick as well as her aged and ailing mother-in-law and father-in-law who are also in a critical condition. It is stated that, husband of the appellant is an under trial prisoner at Bangalore for the last more than 5 years and he is now granted with interim bail by the honourable Supreme Court for the purpose of his treatment. It is pointed out that, as per terms of the order of bail granted by the hounourable Supreme Court, conditions are restricting the husband of the appellant from leaving Karnataka State. As per the order, he should be admitted in a Hospital at Karnataka to Crl.A.1127/2016 :: 5 ::
provide proper treatment. The honourable Supreme Court had permitted the appellant herein and other close relatives to visit him in the Hospital. It is stated that the appellant's husband is now undergoing treatment at Sahaya Holistic Integrative Medical Centre, Bangalore and also at Agarwal's Hospital, Bangalore. According to the appellant, her husband is almost blind and is crippled in movement on a wheel-chair and is badly in need of company of the appellant. For such and other reasons mentioned in the petition filed before the Special Court for trial of NIA cases, the appellant sought deletion of the condition incorporated by the Sessions Court while granting bail.
4. While considering the application, the Special Court had observed that, the appellant was complying with Crl.A.1127/2016 :: 6 ::
the conditions all along and that she sought permission from that court whenever she wanted to leave the limits of the District. The Special Court noted that, the physical condition of the appellant's husband is critical and her request to provide company to her husband at Bangalore is reasonable. However, it is observed that the appellant cannot be permitted to leave the District of Ernakulam at her whims and fancies without intimating the Special Court for NIA cases. Hence it was decided to modify the condition subject to incorporating further restrictions. Accordingly, the Special Court modified the conditions on the following terms:-
"(1) The condition No.3 in the order in Crl.M.C. No.2397/2009 dated 23.12.2009 is modified as follows:-
Condition No.3 Crl.A.1127/2016 :: 7 ::
While on bail the petitioner shall not leave the territorial limits of Ernakulam District without getting the permission of this court. However, the petitioner is permitted to leave the territorial limits of Ernakulam District without getting prior permission of this Court only for the purpose of visiting and staying with her husband at Sahaya Holistic Integrative Medical Centre, Bangalore and Agarwal's Hospital, Bangalore where he is undergoing treatment at present. Before leaving the Ernakulam District for the above said purpose, the petitioner has to swear in and file an affidavit before this Court. On the next day of reaching back from Bangalore also she has to file an affidavit. During her stay at the Hospital at Bangalore along with her husband she has to report to SHO Sidhapuram police station, Bangalore in every week. In the affidavit she has to specifically mention about such report made by her. It is made clear that the petitioner shall not leave the jurisdiction of this Court without prior permission for any other reasons. Whenever the petitioner wants to leave the jurisdiction Crl.A.1127/2016 :: 8 ::
for any other genuine purpose, such as for her own medical treatment, to visit her ailing in laws and relatives, to visit her children etc. she is free to approach this Court and seek prior permission for the same.
(2) This modification shall remain in force only so long as the husband of the petitioner undergoes treatment at the above mentioned Hospital as inpatient."
It is aggrieved by the stipulations contained in the above quoted portion of the order that the appellant had preferred this appeal.
5. Learned counsel for the appellant contended that the conditions incorporated earlier by the Sessions Court in Annexure-A order was warranted only at the relevant time, considering the circumstance that the investigation was Crl.A.1127/2016 :: 9 ::
going on. At present the case stands charge-sheeted and the trial is about to commence. Almost 7 years have lapsed since the Sessions Court had imposed the said conditions. There was no occasion for the appellant to violate the conditions in any manner at any point of time. It is pointed out that, due to the restriction with respect to leaving the limits of the District, the appellant was deprived of even attending funeral functions of her close relatives. It is further pointed out that, the condition incorporated by the Special Court insisting upon the appellant to report before the SHO, Sidhapuram Police station at Bangalore in every week, as well as the insistence for filing affidavit etc., will create unnecessary prejudices to the appellant. It is contended that the Special Court had failed to take note of Crl.A.1127/2016 :: 10 ::
any necessity for insisting such stringent conditions in the present scenario.
6. Heard; Special Public Prosecutor for N.I.A., who is appearing on behalf of the respondent. It is his contention that, if the restriction imposed is relaxed without any measures, there is every chance of the appellant in influencing the witnesses or tampering with the evidence in the case and also there are chance of she being indulging in similar other activities.
8. While considering the facts and circumstance involved as well as the rival contentions, we are of the opinion that the appellant need to be permitted to visit her husband at Bangalore and to stay there in order to give care and protection to him. It will be difficult for the appellant Crl.A.1127/2016 :: 11 ::
to file affidavit on every occasion with respect to such visit and also it will be highly difficult for her to report before the Police Station at Bangalore during every week. Therefore, we are of the opinion that the impugned order need to be modified to certain extent, permitting her to visit Bangalore to join her husband after giving due intimation to the respondent. So also we are of the opinion that in case of any emergent situation necessitating her to leave the limits of Ernakulam District in connection with attending any funeral or other family functions, she can be given liberty to seek permission in advance from the respondent, by intimating the time of travel and the details regarding the place she is intending to visit.
9. Hence the above appeal is hereby disposed of by Crl.A.1127/2016 :: 12 ::
modifying the impugned order passed by the Special Court for NIA cases, Ernakulam and by incorporating the following conditions in lieu of the conditions stipulated in Annexure-A order of bail granted by the Sessions Court, Ernakulam in Crl.M.C. No.2397 of 2009:-
"(1) The appellant is permitted to leave the territorial limits of Ernakulam District for the purpose of visiting and to stay with her husband at Bangalore, where he is undergoing treatment. The appellant shall give due intimation to the respondent with respect to each of such travel in advance and shall also furnish the address of the place where she will be staying with her husband at Bangalore. It will be open to the respondent Agency to have surveillance at Bangalore with respect to her stay along with her husband.
(2) The appellant will be at liberty to leave the territorial limits of Ernakulam District for attending any specific family functions of her family members and Crl.A.1127/2016 :: 13 ::
relatives or for visiting any of her family relatives, after getting permission in advance from the respondent Agency, on furnishing details with respect to the date and time of the travel and the details regarding the place of intended visit. In case, the appellant is not getting such permission or in case the respondent Agency is rejecting such permission, it will be open to the appellant to seek permission from the Special court with respect to any such visit."
Sd/- C.K.ABDUL REHIM, JUDGE Sd/-B.SUDHEENDRA KUMAR, JUDGE dl/.10.11.16 /TRUE COPY/ P.S. TOJUDGE