Abdul Halim v. State of Kerala

``` C.R. ``` **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** **CRL.MC NO. 397 OF 2019** **CRIME NO.2827/2016 OF PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT** **PETITIONER/ACCUSED NO.2:** **ABDUL HALIM, AGED 41 YEARS, S/O.USMAN, THAZHAKATH HOUSE, KANNUR VILLAGE, KANNUR DISTRICT.** **BY ADVS. M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM CHERUVALLY** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 031.** **BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SREEJITH V.S. - PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **10.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.No.397 of 2019** **2** ``` C.R. ``` ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------ Crl.M.C.No.397 of 2019 ------------------------------------- Dated this the 10[th] day of November, 2021 ``` ## **`ORDER`** ## `Jayachandran, J.` We directed the above Crl.M.C. to be posted for hearing today, based on the submissions made by the learned counsel for the appellant(4[th] accused) in Crl.A.No.761/2021. While, the petitioner herein is the 2[nd] accused, the appellant in Crl.Appeal No.761/2021 is the 4[th] accused in Crime No.2827/2016 of Perumbavoor Police Station, which has been renumbered as Crime No.337/2020 of the Anti Terrorist Squad, Ernakulam, for offences under Sections 120B, 171, 419, 447, 450, 395 and 201 of the Indian Penal Code, as also, under Sections 17, 18 and 19 of the Unlawful Activities (Prevention) Act. Both the petitioner herein and the appellant in Crl.Appeal No.761/2021 stand in the same footing, **Crl.M.C.No.397 of 2019** **3** since the orders enlarging them on bail in the said crime were subsequently cancelled, for non-compliance of a condition stipulated in the respective bail orders. 2. During the course of hearing in Crl.A.No.761/2021, learned counsel for the appellant/A4 submitted that the petitioner in the above Crl.M.C was afforded with an interim order preventing arrest by a learned Single Judge of this Court. It is accordingly, that we have called for the records in the above Crl.M.C and specifically posted the same for hearing today. 3. When the above Crl.M.C and Crl.A.No.761/2021 were taken up for hearing today, learned counsel for the appellant/A4 in Crl.A.No.761/2021 submitted that the said Crl.Appeal is not pressed. In the result, the said appeal was dismissed as withdrawn, vide separate order. 4. Heard the learned counsel appearing for the petitioner/accused No.2 and the learned Public Prosecutor. **Crl.M.C.No.397 of 2019** **4** 5. Before considering the merits of the matter, this Court will examine whether the above Crl.M.C filed under Section 482 of the Cr.P.C is maintainable before the learned Single Judge of the High Court, when the offences alleged include the one under the Unlawful Activities (Prevention) Act, 1967 [herein after referred to as 'UA(P)A']. By virtue of the above criminal miscellaneous case, the petitioner/A2 seeks to quash Annexure-A4 order of the Sessions Court, Ernakulam, as per which, the bail granted to the petitioner was cancelled. 6. Learned counsel for the petitioner contended that Section 21(2) of the National Investigation Agency Act, 2008 (herein after referred to as 'NIA Act') is not applicable in the given facts, since the order impugned is not one passed by the Special Court under the NIA Act; nor is this a case investigated by the National Investigation Agency. 7. According to the learned counsel, merely because, the offences alleged in the crime involves a scheduled offence as per Section 2(g) of the NIA **Crl.M.C.No.397 of 2019** **5** Act, the jurisdiction of the Sessions Court as envisaged by the Code of Criminal Procedure, does not cease to exist. Instead, only when an order in terms of Section 6(4) of the NIA Act is passed by the Central Government, there will be an interdiction for the State Police to proceed with the investigation. In the instant case, no such orders have admittedly been passed under Section 6(4) and the case is still being investigated by the State Police. Therefore, the mandate of hearing by a Division Bench of the High Court under S.21(2) of the NIA Act will not govern the present facts. Learned counsel invited the attention of this Court to Section 43 of the UA(P)A to point out that the offences under the Act can be investigated by an officer not below the rank of a Deputy Superintendent of Police of the Delhi Special Police Establishment; in the case of metropolitan areas, an officer not below the rank of an Assistant Commissioner of Police; in the case of National Investigation Agency, an officer not below the rank **Crl.M.C.No.397 of 2019** **6** of Inspector and in any other case, by an officer not below the rank of Deputy Superintendent of Police. Thus, the National Investigation Agency is only one among the agencies competent to investigate an offence coming under the UA(P)A and unless such investigation is ordered in terms of Section 6(4) of the NIA Act, there is no legal requirement that a Crl.M.C of the above nature filed under Section 482 Cr.P.C should necessarily be heard by a Division Bench of the High Court. Learned counsel further pointed out that despite the enactment of the National Investigation Agency Act and introduction of consequential amendments to The Unlawful Activities (Prevention) Act, definition of 'Court' under Section 2(d) would still mean a criminal court having jurisdiction under the Code to try offences under the Act, and includes a Special Court constituted under the NIA Act. 8. In short, when a case involving the offences under the UA(P)A is neither investigated by the National Investigation Agency, nor within the **Crl.M.C.No.397 of 2019** **7** cognisance of the Special Court, Section 21(2) of the NIA Act, will not govern the field. 9. The arguments made by the learned counsel for the petitioner, at first blush appear to be attractive. However, a closer scrutiny will reveal that the legal issue is no more _res integra_ and the arguments put forward by the learned counsel for the petitioner is squarely in the teeth of the judgments of the Honourable Supreme Court in _**Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616,**_ as also, other decisions of the Honourable Apex Court and this Court, which are referred to herein below. 10. In the judgment impugned in _**Bikramjit Singh**_ (supra), the Punjab and Haryana High Court held that the Magistrate will have power under Section 167(2) Cr.P.C, read with Section 43(a) of the UA(P)A to extend the period of investigation up to 180 days, in case, the investigation is being carried out by the State Police, whereas such power shall be exercised by the Special Court, if the investigation is conducted by the agency under the NIA Act. This **Crl.M.C.No.397 of 2019** **8** finding of the Punjab and Haryana High Court was set at naught by the Honourable Supreme Court in _**Bikramjit Singh,**_ after referring to the provisions of the Code of Criminal Procedure, the provisions of the UA(P)A and that of the NIA Act. The Honourable Supreme Court found in Para 25 of the judgment as follows: _“What becomes clear, therefore, from a reading of these provisions is that for all offences under the UAPA, the Special Court alone has exclusive jurisdiction to try such offences.”_ ## 11. The Honourable Supreme Court further held in Para 26 as regards the scheme of UA(P)A, after the introduction of the NIA Act, as under: _“This scheme has been completely done away with by the NIA Act, 2008 as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.”_ **==> picture [409 x 13] intentionally omitted <==** Court concluded that for all offences under the UA(P)A, the Magistrate's jurisdiction to extend time, under the first proviso to Section 43-D(2)(b) is non existent, “the court” being either a sessions **Crl.M.C.No.397 of 2019** **9** court, in the absence of a notification specifying a Special Court, or the Special Court itself. ## 13. In _**State of Andhra Pradesh v. Mohd.Hussain**_ _**Alias Saleem (2014) 1 SCC 258,**_ the Honourable Supreme Court was considering a clarification sought for to a common order in _**State of Andhra Pradesh v.**_ _**Mohd.Hussain (2014) 1 SCC 706**_ . In the common order, the Honourable Supreme Court placed reliance upon Section 21 of the NIA Act and held that the matters in the High Court ought to have been heard by a Division Bench and not a Single Judge. One clarification sought for was that all bail matters wherein offences under the Maharashtra Control of Organised Crimes Act, (herein after referred to as 'MCOC Act') is involved, shall be governed by Section 21 of the said Act and not by Section 21 of the NIA Act, 2008. On such premise, it was also contended that the petition before the Single Judge under Section 439 Cr.P.C is well-nigh maintainable. This contention was repelled by the Honourable Supreme Court in para 18 of the judgment as follows: **Crl.M.C.No.397 of 2019** **10** _“This being the position, there is no merit in the submission canvassed on behalf of the applicant that appeals against the orders granting or refusing bail need not be heard by a Bench of two Judges.”_ 14. The Honourable Supreme Court ultimately clarified the judgment in _**State of Andhra Pradesh v.**_ ## _**Mohd.Hussain 2014 (1) SCC 706**_ as follows:- _“27. The order passed by this Court on 2-8-2013 in State of A.P. v. Mohd.Hussain is therefore clarified as follows:_ _27.1. Firstly, an appeal from an order of the Special Court under the NIA Act, refusing or granting bail shall lie only to a Bench of two judges of the High Court._ _27.2. And, secondly as far as Prayer (b) of the petition for clarification is concerned, it is made clear that inasmuch as the applicant is being prosecuted for the offences under the MCOC Act, 1999, as well as the Unlawful Activities (prevention) Act, 1967, such offences are triable only by the Special Court, and therefore application for bail in such matters will have to be made before the Special Court under the NIA Act, 2008, and shall not lie before the High Court either under Section 439 or under Section 482 of the Code. The application for bail filed by the applicant in the present case is not maintainable before the High Court._ _27.3. Thus, where the NIA Act applies, the original application for bail shall lie only before the Special Court, and appeal against the orders therein shall lie only to a Bench of two judges of the High Court.”_ **==> picture [409 x 12] intentionally omitted <==** Court in _**The State of Kerala & Others v. Roopesh**_ dated 29.10.2021 (Crl.A..Nos. 1313-1315 of 2021) **Crl.M.C.No.397 of 2019** **11** would amplify the legal position in this regard. The Honourable Supreme Court referred to the judgments in _**Mohd.Hussain**_ (supra) and _**Bikramjit**_ (supra) to find that any order passed by a Special Court, not being an interlocutory order, appealed before the High Court is to be heard by a Bench of two Judges. In _**Roopesh**_ (supra), the impugned order of the High Court discharging the accused was set aside by the Honourable Supreme Court on this count and the case was remanded back for consideration by a Division Bench in accordance with law. 16. Way back in the year 2017, the precise issue fell for consideration before a Division bench of this Court, in _**Sahadath Hossain v. State of Kerala**_ _**2017 (1) KHC 156**_ . The Division Bench found in para 7 of the judgment as follows:- _“Therefore it is clear that, with respect to an offence under the UA(P) Act, which is specified in the schedule of NIA Act, the Sessions Court is only exercising the jurisdiction which is conferred on the Special Court and that such Court is vested with all the powers conferred by the NIA Act and it is bound to follow the procedure provided under the relevant chapter of the NIA Act. Hence, even though the offence is not tried by the Special Court, the Sessions Court is exercising only the jurisdiction of the Special Court, as conferred by the NIA Act._ **Crl.M.C.No.397 of 2019** **12** _Therefore, for all practical purposes, the Sessions Court which is trying an offence under the UA(P) Act, which is a scheduled offence, need to be deemed as a Special Court, irrespective of whether the investigation is conducted by the NIA or not. Therefore this Court is of the considered opinion that, any order passed by the Sessions Court granting or refusing bail with respect to any offence coming under the UA(P) Act, which is included in the Schedule of the NIA Act, is appealable to the High Court under S.21(4) of the NIA Act and in such cases, the application for a regular bail under S.439 CrPC is not maintainable before the High Court.”_ **==> picture [409 x 12] intentionally omitted <==** pronouncements, we conclude that above Crl.M.C is not maintainable before the learned Single Judge and the same is liable to be considered by a Division Bench of this Court. It is accordingly, that we have called for the records pertaining to the above Crl.M.C for being heard. 18. Coming to the merits, the petitioner/accused No.2 would admit that he failed to appear before the Investigating Officer on every Monday and Friday as directed in Annexure-A1 order, vide condition No.2. His case is that he was unaware of the said condition in Annexure-A1 order. According to the petitioner, he was in jail at the time when the **Crl.M.C.No.397 of 2019** **13** order was passed and it was his illiterate wife who was communicating with his lawyer. Although the petitioner executed bond with two solvent sureties, he was not given a copy of the order of bail. The petitioner was appearing before the Investigating Officer in compliance with the conditions in the order for bail granted in other crimes, where the petitioner was allegedly involved. However, he was not cautioned by the Investigating Officer as regards condition No.2 in Annexure-A1 order. 19. Learned counsel for the petitioner would further contend that he is complying with all the conditions stipulated in the orders of bail in five other cases. The application for cancellation of bail was made after two years from the date of Annexure-A1 order, only to ensure that the petitioner is not continued on bail. The violation, if any, was never intentional. There is inordinate delay in seeking cancellation of bail and therefore, Annexure-A4 order, cancelling Annexure-A1 order of bail, is liable to be set aside. **Crl.M.C.No.397 of 2019** **14** 20. Per contra, this application was seriously opposed by the learned Public Prosecutor by pointing out that it cannot be believed that the petitioner was not aware of the condition No.2 in Annexure-A1 order. Learned Public Prosecutor submitted that the allegations against the accused persons, including the petitioner, are serious in nature. The accused persons have impersonated as Vigilance Officers and extracted money from the defacto complainant, which is alleged to be done for the purpose of raising funds for terrorist activities. According to the learned Public Prosecutor, the violation is liable to be viewed seriously, and therefore, the present Criminal Miscellaneous Case (which ought to have been filed as Crl.Appeal) is only to be dismissed. 21. Having heard the learned counsel appearing on both sides, this Court is not persuaded to allow this Crl.M.C. As found by the learned Sessions Judge, it cannot be believed for a moment that the petitioner/accused No.2, who got himself released by **Crl.M.C.No.397 of 2019** **15** virtue of Annexure-A1 order, after executing the bail bond as directed in the said order, was unaware of condition No.2, warranting his appearance before the Investigating Officer at stipulated intervals. The violation had continued for almost two years. The petitioner, having failed to perform his obligations in Annexure-A1 order, cannot be heard to blame the Investigating Officer for not cautioning him regarding the violation. 22. An order granting bail is passed recognising the valuable right of the accused to be presumed innocent until found guilty by a competent court of law and to ensure that there is no continued incarceration, while the investigation is unnecessarily delayed. However when charged with an offence, liberty from custody is always subject to reasonable restrictions in the form of conditions stipulated in the bail order. One cannot seek to protect his liberty, except when he scrupulously abides by the conditions stipulated in the order for bail. **Crl.M.C.No.397 of 2019** **16** We neither find any merit in this Criminal Miscellaneous case, nor find any infirmity in Annexure-A4 order impugned. In the result, this Crl.M.C. would stand dismissed, affirming the cancellation of bail. The accused shall surrender forthwith or he shall be taken into custody immediately. ``` Sd/- K.VINOD CHANDRAN JUDGE ``` ``` Sd/- C.JAYACHANDRAN JUDGE ``` ``` NR/10/11/2021 ``` **Crl.M.C.No.397 of 2019** **17** ## **APPENDIX** |**PETITIONER'S ANNEXURE**|| |---|---| |**ANNEXURE A1**|**PHOTOSTAT COPY OF ORDER OF THE COURT OF SESSION,**| ||**ERNAKULAM IN CRL.MC.2636/16 DATED 14/12/16.**| |**ANNEXURE A2**|**PHOTOSTAT COPY OF THE AFFIDAVIT ALONG WITH THE**| ||**PETITION TO CANCEL THE BAIL GRANTED TO THE**| ||**PETITIONER.**| |**ANNEXURE A3**|**PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED BY**| ||**THE PETITIONER IN BEFORE THE DISTRICT AND**| ||**PRINCIPAL SESSIONS COURT, ERNAKULAM.**| |**ANNEXURE A4**|**CERTIFIED COPY OF THE ORDER OF THE COURT OF**| ||**SESSION ERNAKULAM DIVISION IN CRL.MP 2309/2018**| ||**DATED 9/1/2019.**|