Kerala High Court
Majeed Koliyad @ Mohamed Abdul Khader ... vs State Of Kerala
Author: M.L.Joseph Francis
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935
CRL.A.No. 1428 of 2013 (C)
AGAINST THE ORDER DATED 20.9.2013 IN C.M.P.NO.422 OF 2013 IN
R.C.NO.1 OF 2013 ON THE FILE OF THE SPECIAL COURT FOR TRIAL OF
NIA CASES, ERNAKULAM.
APPELLANT/ACCUSED NO.8:
-----------------------------------------
MAJEED KOLIYAD @ MOHAMED ABDUL KHADER MAJEED,
AGED 43 YEARS, KOLIYAD HOUSE, NUSRATH NAGAR
POST THALANGARA, KASARAGOD- 671 122
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SRI.K.T.SIDHIQ
SRI.M.MANOJKUMAR (CHELAKKADAN)
SMT.ASHA BABU
SMT.G.ASHWINI
SMT.AMMU CHARLES
RESPONDENTS/STATE:
---------------------------------
1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM 682 031
2. THE NATIONAL INVESTIGATION AGENCY
KADAVANTHRA, KOCHI 682 020
REPRESENTED BY ITS SUPERINTENDENT
BY SRI.M.AJAY, SPL. PUBLIC PROSECUTOR FOR NIA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2013,
ALONG WITH CRL.A.NOS.1429, 1430 AND 1431 OF 2013, THE COURT ON 5.11.2013,
DELIVERED THE FOLLOWING:
K.T.SANKARAN &
M.L.JOSEPH FRANCIS, JJ.
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Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013
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Dated this the 5th day of November, 2013
JUDGMENT
K.T.Sankaran, J.
Since the appellant is the same in all these Criminal Appeals and since the prosecution case against the appellant is similar in nature, the four Criminal Appeals are being disposed of by a common judgment.
2. The appellant, namely, Majeed Koliyad alias Mohammed Abdul Khader Majeed was arrested by the officers of the National Investigation Agency (NIA for short) at the International Airport, Mumbai on 16.8.2013. He was produced before the Special Judge for NIA cases at Mumbai and later he was produced before the Special Court for the trial of NIA cases at Ernakulam on 19.8.2013. The appellant was remanded to judicial custody. He moved for bail. The Special Court for the trial of NIA cases dismissed the Bail Applications as per the orders dated 20th September 2013. The Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 2 ::
appellant filed the Criminal Appeals challenging the orders passed by the court below.
3. The facts leading to the registration of the four cases are the following:
4. On 16.8.2012, one Shereef alias Mohammed Shereef along with Madapurath Ayisha went to the office of the Assistant Engineer, Electrical Section, Kerala State Electricity Board for payment of OYEC charges and caution deposit for getting electricity connection to the house of Ayisha. On receipt of money from Shereef, the Cashier raised doubt about the genuineness of eight currency notes of the denomination of `500/-. Thereupon Shereef gave another set of eight currency notes of the denomination of `500/- and left the place. The cashier, after careful checking, again had suspicion about the genuineness of the currency notes. He handed over the currency notes to the Assistant Engineer, who reported the matter to the Station House Officer, Chandera Police Station. On realising that the currency notes were fake, Crime Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 3 ::
No.597 of 2012 of Chandera Police Station was registered under Sections 489B and 489C of the Indian Penal Code.
5. On 17.8.2012, the Assistant Manager of M/s.Malabar Gold, North Kottachery, Kanhangad reported to the police that one Abdul Jabbar and two others visited the jewellery shop and gave 180 fake Indian currency notes of the denomination of `1,000/- after purchasing gold. Accordingly, Crime No.777 of 2012 of Hosdurg Police Station was registered under Sections 489B and 489C of the Indian Penal Code.
6. Crime No.600 of 2012 of Chandera Police Station was registered under Sections 489B and 489C on the allegation that on 18.8.2012, Abdul Jabbar and another person gave 63 fake currency notes of the denomination of `1,000/- and 89 fake currency notes of the denomination of `500/- after purchase of gold from Fashion Gold Mahal, Cheruvathoor.
7. Crime No.599 of 2012 of Chandera Police Station was registered under Sections 489B and 489C of the Indian Penal Code Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 4 ::
on the basis of the information given by the Managing Partner of M/s.Atlas Gold, Cheruvathur. It was alleged that on 15.8.2012, Abdul Jabbar, his wife and children went to M/s. Atlas Gold and purchased gold ornaments for `74,019/-. They sold old jewellery worth `17,164/-. After adjusting that amount, and deducting discount, Abdul Jabbar paid `52,500/- in cash. On 18.8.2012, the defacto complainant came to know from the newspaper that one Jabbar was arrested by Hosdurg police while purchasing gold ornaments using fake Indian currency notes. He identified the person from the photograph published in the newspaper, as the person who purchased gold ornaments from his shop on 15.8.2012. He rushed to the State Bank of Travancore, Cheruvathur Branch and checked the currency notes given by Abdul Jabbar and it was found that all the currency notes given by Abdul Jabbar were fake. The matter was reported to the police and accordingly, the crime was registered.
8. Originally, there were only four accused in each of the crimes. Later, the investigation of the case was handed over to CBCID and the four crimes were re-registered by them. CBCID filed reports to incorporate the names of some more accused persons Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 5 ::
including the appellant. Offences under Sections 420, 201, 120B and 109 were also incorporated.
9. As per the order issued by the Ministry of Home Affairs, Government of India, NIA took over the investigation of the four cases mentioned above. NIA re-registered the cases at NIA Police Station, Kochi, Kerala. The crime numbers of the cases at Hosdurg and Chandera Police Stations, the crimes re-registered by CBCID and NIA and the respective Criminal Appeals filed by the appellant are shown in the table below.
Sl. Crime No. Crime No. Crime No. Number of
No. as originally re-registered re-registered Criminal
registered by CBCID by NIA Appeal
599 of 2012 791/CBCID RC 1/2013 1428/2013
1 Chandera Police Station
777/2012 798/CBCID RC 2/2013 1429/2013
2 Hosdurg Police Station
600/2012 792/CBCID RC 3/2013 1430/2013
3 Chandera Police Station
597/2012 782/CBCID RC 4/2013 1431/2013
4 Chandera Police Station
Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013
:: 6 ::
10. The rank of the appellant in R.C.Nos.1 of 2013 to 4 of 2013 is respectively accused No.8, 12, 8 ad 9.
11. Sri.K.Ramakumar, the learned Senior Counsel appearing for the appellant raised the following contentions. The procedure adopted by the CBCID and NIA in registering fresh First Information Reports or in re-registering the same is illegal. There is no provision in the Code of Criminal Procedure enabling the CBCID and NIA to do so. There cannot be more than one FIR in respect of an incident. The procedure adopted in the case in registering fresh FIR or re- registering an FIR is hit by the proviso to Section 162 of the Code of Criminal Procedure. The NIA could only take over investigation of the cases and they could not re-register the FIRs. Sri.Ramakumar also submitted that no specific overt act is alleged against the appellant and there is nothing to indicate that he is involved in the cases. There is no ground to deny bail to the appellant. NIA took over the investigation on 9.7.2013 and till now, the complicity of the appellant is not even prima facie established. The appellant relied on the decisions in Surender Kaushik and others v. State of Uttar Pradesh and others ((2013) 5 SCC 148); Amitbhai Anilchandra Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 7 ::
Shah v. Central Bureau of Investigation and another ((2013) 6 SCC 348); Yanob Sheikh alias Gagu v. State of West Bengal ((2013) 6 SCC 428); T.T.Antony v. The State of Kerala ((2001) 6 SCC 181) and Anju Chaudhary v. State of Uttar Pradesh and another ((2013) 6 SCC 384).
12. Sri.M.Ajay, the learned Special Public Prosecutor for NIA submitted that the procedure adopted by NIA was perfectly legal and the Crimes re-registered by NIA were in continuation of the FIRs registered in the cases. Separate Crime numbers were assigned to the cases for administrative reasons, to avoid confusion and for the effective investigation of the cases.
13. Sri.Ajay submitted that the investigation revealed the following: Moideen alias Moideenabba Ummer Beary of Udupi procured high quality fake Indian currency for `31 lakhs at Dubai. Moideen handed over fake currency for `31 lakhs to Usman of Mangalore at Dubai Airport for transporting the same to Bangalore. Usman reached at Bangalore Airport on 8.8.2012. As instructed by Moideen, the fake currency was collected from Usman by Vivian Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 8 ::
Chethankumar alias Chethan, the confidant of Moideen. Chethan kept the currency at the residence of Moideen at Udupi. On the instructions of Moideen, on 9.8.2012, Chethan delivered fake currency for Rupees five lakhs to Usman at Mangalore. Usman handed over the same to Abdul Nazeer alias Nazeer at Kasaragod. Abdul Nazeer alias Nazeer is a hawala agent in Kasaragod working for Mammunji alias Muhammad Kunhi and Majeed Koliyad alias Mohamad Abdul Kader Majeed (the appellant). On 10.8.2012, as instructed by Moideen, Chethan delivered fake currency worth Rupees six lakhs to Usman at Mangalore, who in turn delivered the same to Subaida, wife of Abdul Jabbar at Cheruvathoor, Kasaragod. On 11.8.2012, as instructed by Moideen, Chethan delivered fake currency worth Rupees nineteen lakhs to Usman at Mangalore, who in turn delivered the same to Abdul Nazeer alias Nazeer. Abdul Nazeer received the fake currency from Usman, on the instruction from Mammunji and Majeed Koliyad (appellant). Out of fake currency for `24 lakhs received by Abdul Nazeer alias Nazeer, he returned `17 lakhs to Usman on the instruction of Mammunji and Majeed Koliyad. The fake currency notes for `17 lakhs were later used for purchasing gold bar at Delhi. The balance fake currency for Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 9 ::
Rupees seven lakhs were burnt by Nazeer. The fake currency for Rupees six lakhs, which was received by Subaida, wife of Abdul Jabbar was used for purchasing gold ornaments, household articles, for discharging loans etc. The aforesaid three crimes were registered at Chandera Police Station and one crime at Hosdurg Police Station in connection with the use of fake Indian currency notes by Subaida, Abdul Jabbar and others.
14. In T.T.Antony v. The State of Kerala ((2001) 6 SCC 181), the Supreme Court held:
"20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfied the requirements of Section 154 Cr.P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 10 ::
in the station house diary, the officer-in-charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C.
21. ....... It follows that if the gravamen of the charges in the two FIRs - the first and the second - is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 Cr.P.C. will be irregular and the Court cannot take cognizance of the same."
15. In T.T.Antony's case, while two FIRs registered in respect of two incidents occurred in the nearby places were pending investigation, a third FIR was registered on the orders of the Inspector General of Police, after the Government of Kerala accepted the report of the Commission of Inquiry. The High Court quashed the third FIR and it was upheld by the Supreme Court.
16. In Surender Kaushik and others v. State of Uttar Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 11 ::
Pradesh and others ((2013) 5 SCC 148), three FIRs were registered in respect of certain irregularities in an educational society, at the instance of different persons. In that context, the Supreme Court held:
"24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter-FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three-Judge Bench in Upkar Singh v. Ved Prakash ((2004) 13 SCC 292), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible."
Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 12 ::
17. In Anju Chaudhary v. State of Uttar Pradesh and another ((2013) 6 SCC 384) the Supreme Court held that on the plain construction of the language and scheme of Sections 154, 156 and 190 of the Code, it cannot be construed or suggested that there can be more than one FIR about an occurrence.
18. Sri.Ramakumar, the learned Senior Counsel for the appellant made emphasis on the following sentences in Anju Chaudhary's case.
"14. ..... More so, in the backdrop of the settled canons of criminal jurisprudence, reinvestigation or de novo investigation is beyond the competence of not only the investigating agency but even that of the learned Magistrate. The courts have taken this view primarily for the reason that it would be opposed to the scheme of the Code and more particularly Section 167(2) of the Code. (Ref. Reeta Nag v. State of W.B.((2009) 9 SCC
129) and Vinay Tyagi v. Irshad Ali ((2013) 5 SCC 762) of the same date.)"
19. In Anju Chaudhary's case, the Supreme Court also held:
Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 13 ::
"15. It has to be examined on the merits of each case whether a subsequently registered FIR is a second FIR about the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the court to lay down one straitjacket formula uniformly applicable to all cases. This will always be a mixed question of law and facts depending upon the merits of a given case."
20. In Yanob Sheikh alias Gagu v. State of West Bengal ((2013) 6 SCC 428), the Supreme Court held:
"12. On this principle of law, we have no hesitation in stating that the second FIR about the same occurrence between the same persons and with similarity of scope of investigation cannot be registered and by applying the test of similarity, it may then be hit by the proviso to Section 162 of the Code."
21. In Amitbhai Anilchandra Shah v. Central Bureau of Investigation and another ((2013) 6 SCC 348), the Supreme Court considered the legality of filing a fresh FIR by the Central Bureau of Investigation. In that case, the State of Gujarat had filed a Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 14 ::
charge sheet after a lapse of more than three years of the date of incident. The Supreme Court in Narmada Bai v. State of Gujarat ((2011) 5 SCC 79) directed the State police authorities to hand over the case to CBI. After investigation, the CBI filed a fresh FIR, the legality of which was challenged before the Supreme Court. In that context, the Supreme Court held:
"59. In the light of the specific stand taken by CBI before this Court in the earlier proceedings by way of assertion in the form of counter-affidavit, status reports, etc. we are of the view that filing of the second FIR and fresh charge-sheet is violative of fundamental rights under Articles 14, 20 and 21 of the Constitution since the same relate to alleged offence in respect of which an FIR had already been filed and the court has taken cognizance. This Court categorically accepted CBI's plea that killing of Tulsiram Prajapati is a part of the same series of cognizable offence forming part of the first FIR and in spite of the fact that this Court directed CBI to "take over" the investigation and did not grant the relief as prayed, namely, registration of fresh FIR, the present action of CBI filing fresh FIR is contrary to various judicial pronouncements which is demonstrated in the earlier part of our judgment."
Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 15 ::
22. In order to consider the contentions raised by either side, it is apposite to refer to certain provisions of the National Investigation Agency Act, 2008. Section 6 of the NIA Act provides for investigation of scheduled offences, which reads thus:
"6. Investigation of Scheduled Offences.-- (1) On receipt of information and 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.
(2) On receipt of the report under sub-section (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
(3) On receipt of 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 fifteen 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.
Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 16 ::
(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
(5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence.
(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.
(7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation."
23. Section 2(1)(g) of the NIA Act defines 'Scheduled Offence' as ""Scheduled Offence" means an offence specified in the Schedule". Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 17 ::
Offences under Chapter VI and Sections 489A to 489E (both inclusive) of the Indian Penal Code are included in the Schedule of NIA Act. Therefore the crimes registered against the appellant can be investigated by the NIA.
24. In the cases on hand, the NIA only continues with the investigation of the four crimes registered against the appellant and others as provided in sub-section (4) of Section 6 of the NIA Act. When a direction is issued by the Central Government under sub- section (4) of Section 6, sub-section (6) of Section 6 of the NIA Act mandates that the State Government and the police officer of the State Government investigating the offence shall not proceed with the investigation and the relevant documents and records are to be forthwith transmitted to the NIA. It is true that the NIA re-registered the cases and assigned new numbers. That does not mean that the NIA registered a second FIR in respect of each case. Re- registration and assigning new numbers was only for administrative and statistical purposes. Assigning new numbers by the NIA would only avoid confusion. The NIA has really appended the FIR registered by the Kerala Police, along with the re-registered FIR. Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 18 ::
Nothing new is stated in FIR submitted by NIA, in respect of the offences alleged in the cases. The allegations as originally made in the FIR registered by the Kerala Police still constitute the basis on which the investigation is continued by the NIA. No new allegations are added in the FIR re-registered by the NIA. No prejudice would be caused to any of the accused in the cases, as a result of the procedure adopted by the NIA. The FIRs submitted by the NIA would only indicate that they have taken over the investigation of the four crimes registered by the Kerala Police. The contentions put forward by the appellant in this regard are without any substance. The decisions cited by the learned Senior Counsel for the appellant do not apply to the facts and circumstances of the cases on hand.
25. The appellant was made an accused in the cases even before the NIA took over investigation. Two other accused persons in the cases, namely, (1) Moideen alias Moideen Ummar Byari and (2) Mammunji alias Muhammad Kunji, have not been arrested so far and they are in U.A.E. The investigation is continued by the NIA. The allegation raised against the appellant is very serious in nature. If the appellant is released on bail at this stage, it would certainly Crl.A. Nos.1428, 1429, 1430 & 1431 of 2013 :: 19 ::
adversely affect the smooth investigation of the cases. The submission made by the learned Special Public Prosecutor that investigation has to be made to prove the source of the fake Indian currency, which was brought from Dubai, and that further time is required for the same is quite convincing. The appellant had links in Dubai and two of the accused are still in Dubai. Release of the appellant on bail may result in tampering with the evidence and the witnesses being influenced.
26. The court below did not commit any error and the Bail Applications were rightly dismissed. No grounds are made out to set aside the orders passed by the court below.
For the aforesaid reasons, the Criminal Appeals are dismissed.
(K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/