Dr. Dinesh D v. State of Kerala and National Investigation Agency

BAIL APPL. NO. 8537 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 BAIL APPL. NO. 8537 OF 2021** **(CRIME NO.32/2020/ATS (EDAKKARA POLICE STATION CRIME** **NO.249/2017)** ## **PETITIONER/ACCUSED** DR.DINESH D AGED 32 YEARS S/O DHANAPALAN.D, NO.1, THULLARAMUKAM STREET, PULIYAKKULAM, COIMBATORE-5. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY THULASI K. RAJ ## **RESPONDENT** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2 NATIONAL INVESTIGATION AGENCY REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION SHRI.P.VIJAYAKUMAR, ASG OF INDIA S.MANU SUVIN.R.MENON- C.G.C THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 8537 OF 2021 2 ## **ORDER** Dated this the 23[rd] day of December, 2021 The petitioner an established dentist by profession, a native of Tamil Nadu has been arraigned as accused No.22 in Crime No.32/2020/ATS of Edakkara police station (Crime No.249/2017 of Edakkara police station, Malappuram District) registered for the offences punishable under Sections 121, 121A, 122 of the IPC, Sections 18, 18A, 20, 38 and 39 of the Unlawful Activities (Prevention) Act (UAPA), Section 27(1)(e) (IV) of the Kerala Forest Act and Section 7 read with 27(2) of the Arms Act. 2. The petitioner has been in custody since 4.2.2021. 3. The prosecution allegation in brief is as follows: During the period in between the last week of May 2016 till September 2016, certain members of 'People Liberation Gaurilla Army (PLGA in short) a prohibited organization trespassed into the forest area in Nilambur Taluk in Karulai village, Malappuram district and illegally camped there and imparted physical training armed with unlicensed weapons like AK 47 rifle, 303 rifle, carbine rifle, SBBL etc, held meetings and hatched conspiracy for waging BAIL APPL. NO. 8537 OF 2021 3 war against the Government of India and thereby the accused committed the aforesaid offences. 4. Heard the submissions of the learned counsel for the petitioner, Adv.Kaleeswaram Raj and Sri.Suvin.R.Menon the learned CGC for NIA. 5. The learned counsel for this petitioner submits that the petitioner is a doctor and he is a social activist involved in societal causes for public interest. But he is falsely implicated in this case. 6. The main argument advanced by the learned counsel on behalf of the petitioner is that though the offences under Chapter IV of the UAPA Act are included in the case, no sanction was obtained to prosecute the accused and therefore, under Section 45 of the UAPA Act the court cannot take cognizance of the offence in the absence of sanction from the Government. It is further argued that his bail application was dismissed by the learned Sessions Judge and therefore, this bail application is maintainable before the Single Bench like any other bail application, though the National Investigating Agency is investigating the case. BAIL APPL. NO. 8537 OF 2021 4 7. The respondents opposed the application mainly pointing out that as the investigation of the case has been taken over by the National Investigating Agency under Section 21(2) of the National Investigation Agency Act the matter has to be heard by a Bench of two Judges of a High Court and a Single Judge has no jurisdiction to decide on the matter. Before going into the merits of the first question to be answered is whether this bail application is maintainable before a Single Bench. 8. It is pertinent to note that initially the case was registered before the Sholayar police station in the year 2017 and then transferred to Edakkara police station where the FIR was registered under various sections of the Indian Penal Code including UAPA Act. 9. This petitioner was arrested on 4.2.2021 in the crime which was re-registered as 32/2020 before the Edakkara police station. The bail application submitted by this petitioner before the learned Sessions Judge, Manjeri was dismissed on 17.6.2021. On 19.8.2021 as per an order of the Government of India, Ministry of Home Affairs vide order No.11011/53/2021/NIA, the National investigating agency was directed to take over the BAIL APPL. NO. 8537 OF 2021 5 investigation of the crime. Then on 20.8.2021 NIA registered the case as R.C No.2/2021/NIA/KOC under the various sections referred above. Thereafter as per the proceedings of this Court the case was ordered to be transferred to the Special court for NIA cases, Ernakulam from the Sessions Court, Manjeri. In compliance of the proceedings the case was transferred to the special court for trial of NIA cases on 30.9.2021. 10. It is significant to note that after the investigation of the case was taken up by the NIA this bail application was filed by the petitioner under Section 439 of the Code of Civil procedure. Meanwhile as per the proceedings of Home Department, Thiruvananthapuram dated 23.10.2021 sanction was accorded for prosecution of the accused for the offences punishable under Sections 121, 121A, 122 of the IPC , Section 18, 18A, 20, 38 and 39 of UAPA Act and section 7 read with 27(2) of the Arms Act. 11. So this bail application before this bench is filed by the petitioner in this case which is being investigated by the National Investigating Agency. Sec.21 of the National Investigation Agency Act reads as follows: BAIL APPL. NO. 8537 OF 2021 6 21. Appeals. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High court both on facts and on law. “21(2). Every appeal under sub-section (1) shall be heard by a bench of two Judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.” 12. In view of the Section 21(2) of the National Investigation Agency Act, 2008 this application is to be heard by a Division Bench and not by a Single Judge which is a statutory requirement. It is pertinent to note that a common judgment of the High court of Kerala in Crl.Rev.Pet.No.732/2019 and connected cases was challenged before the Supreme Court. The Supreme Court set aside the common judgment and remanded the petitions directing to dispose of the same by the Division Bench of the High Court in view of the statutory provision under Section 21(1) and 21(2) of the NIA Act. It is reflected from the order of the supreme court that the learned Senior Advocate for the appellant-State referred to the decisions in State of **Andhra Pradesh v. Mohd.Hussain Alias Saleem** [2014 (1) SCC 258] and Bikramjith Singh v. State of Punjab [(2020) 10 SCC 616] to BAIL APPL. NO. 8537 OF 2021 7 argue that the order passed by the single judge of the High Court is unsustainable. The said argument was accepted by the Supreme Court and set aside the order under challenge and remanded the matter to be considered by the Division Bench. The Revision Petition was disposed of by a Single bench (Crime No.11/2014 of Valayam police station, S.C No. 818 of the 2018 of the Sessions Court, Kozhikode – Roopesh's case for short) **.** So under Section 21(1) and 21(2) of the NIA Act the bail application also has to be considered by a Division Bench and not by a Single Bench. Here the petitioner after the investigation was taken up by the investigating agency, even without filing an application for bail before the special court, filed this application before this court. Of- course the learned counsel for the petitioner addressed this court stressing that no law was laid down by the Supreme Court in Roopesh case though the impugned order was set aside. So this bail application is maintainable before a Single Bench as there is violation of the principles of natural justice. But the said argument lacks merits and not substantiated by the provisions of the Act and I am unable to accept it. The Supreme Court relying on the decisions in Mohd. Hussain Saleem and Bikramjit Singh BAIL APPL. NO. 8537 OF 2021 8 case held that the order passed by the Single Judge in Roopesh's case is contrary to statutory provision under Section 21(1) and 21(2) of the NIA Act and the law laid down in above cases. The said observation is as follows:- “In view of the above and the law laid down by this court in Mohd. Hussain alias Saleem (supra) and Bikramjit Singh (supra) and even considering Section 21 of the NIA Act, any order passed by the learned Special Court, not being an interlocutory order, is subjected to appeal before the High Court and to be heard by a Bench of two Judges of the High Court. In the present case, admittedly, the impugned judgment and order has been passed by the learned Single Judge which can be said to be absolutely contrary to the statutory provision, namely, Section 21(1) and 21(2) of the NIA Act and the law laid down by this Court in the aforesaid decisions. In view of the above, all these appeals succeed and the common impugned judgment and order passed by the High Court passed in discharging the accused is hereby quashed and set aside and the matters are remanded to the High Court to decide the Revision Petition Nos. 732 of 2019 to 734 of 2019 afresh by the Division Bench in accordance with law and on merits. The Revision Petitions, on remand, shall be decided and disposed of by the Division Bench of the High Court at the earliest and preferably, within a period of six months from the date of receipt of the present order.” Therefore, a Single Bench is not supposed to go into the merits of the case and decide whether the petitioner is entitled to be released on bail or not, as it is a matter governed by Section 21 BAIL APPL. NO. 8537 OF 2021 9 of NIA Act. So also whether congnizance of the offences has been taken without obtaining sanction to prosecute the accused under the provisions of the UAPA Act etc, cannot be considered by a Single Bench in view of the provision of sub section (2) of Section 21 of the NIA Act as it is a statutory requirement and the same have to be considered by the proper bench ie; by a bench of two Judges. But here it is pertinent to note that the petitioner has not moved a bail application before the Special Court after the NIA has taken up the investigation. For the above mentioned reasons, I find that this petition is liable to be dismissed. However, the petitioner is at liberty to move before the special court for his release on bail, if so advised, as the case is pending before the special court for NIA cases. Dismissed. Sd/- SHIRCY V JUDGE smm