Iyyappan v. Union of India (NIA)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 22[ND] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945** **CRL.A NO. 622 OF 2023** **AGAINST THE ORDER DATED 24.01.2023 IN CRL.M.P.67/2022 IN SC 2/2021 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM** ## **APPELLANT/PETITIONER/ACCUSED NO.19(UNDER CUSTODY):** IYYAPPAN, AGED 31, S/O.GANESAN.T, 2/218,SOUTH STREET,KUDALPURINATHAM, SIVALINGAPURAM (PO),VIRUTHUNAGAR, PIN - 626136 BY ADVS. THUSHAR NIRMAL SALATHY, K.S.MADHUSOODANANM.M.VINOD KUMARP.K.RAKESH KUMARK.S.MIZVERM.J.KIRANKUMAR ## **RESPONDENT/RESPONDENT/COMPLAINANT:** UNION OF INDIA, REPRESENTED BY NATIONAL INVESTIGATION AGENCY (NIA), GIRINAGAR HOUSING COLONY,GIRINAGAR HOUSING SOCIETY,KADAVANTRA, ERNAKULAM, PIN - 682020 SRI.S.MANU, DSGI ASSISTED BY SRI. PRENJITH KUMAR K.S CGC FOR NIA. THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.08.2023, THE COURT ON 22.08.2023 DELIVERED THE FOLLOWING: **Crl.Appeal No.622 of 2023** 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------------Crl.Appeal No.622 of 2023 ----------------------------------------------------Dated this the 22[nd] day of August, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** This appeal under Section 21(4) of the National Investigation Agency Act, 2008 (NIA Act), has been filed by accused no.19 (A19) against the order dated 24/01/2023 in Crl.M.P.No.67/2022 in S.C.No.2/2021/NIA/KOC, by which order the request for bail under Section 439 Cr.P.C. has been rejected by the Special Court for the trial of NIA Cases, Ernakulam. 2. In the appeal memorandum it is alleged that the Special court went wrong in holding that a _prima facie_ case has been made out based on a delayed and improper identification of the appellant/A19 from a video clipping alleged to have been shown to CW204 Shobha, the approver, who was initially accused no.20 (A20) in the crime. The approver never mentioned the involvement of the appellant/A19 in her earlier statements to the investigating agencies, that is, neither in Annexure-II 164 statement **Crl.Appeal No.622 of 2023** 3 recorded on 29/03/2021 nor in Annexure-VI 161 statement dated 07/11/2021 to the NIA. The trial court also went wrong in finding that the applicant/A19 has been identified by CW196 and CW197, his neighbour and brother respectively, based on some video clipping, the particulars of which are not clear from the materials on record. Bail is also sought on medical grounds alleging that the applicant/A19 is suffering from serious ailments relating to his kidney. 3. The application is strongly objected to by the learned Central Government Counsel, who pointed out that the trial court was perfectly right in rejecting the request for bail holding that a prima facie case against the appellant/A19 has been made out from the records. The appellant, a member of the proscribed terrorist organization, namely, CPI (Maoist), had participated in an armed training camp and therefore it would not be proper or safe to release him on bail. There are chances of the appellant/A19 absconding and rejoining the proscribed organization and getting actively involved in terrorist activities. The release of the appellant on bail would hamper the chances of apprehending the absconding accused persons and hence the argument is that the appeal lacks merit. **Crl.Appeal No.622 of 2023** 4 4. Heard Sri.Thushar Nirmal Salathy, the learned counsel for the appellant and Sri.S.Manu, the learned Deputy Solicitor General of India, assisted by Sri. Prenjith Kumar K.S., the learned Central Government Counsel for the NIA. 5. The case in brief is – the appellant/A19 was originally arrayed as accused no.27 in S.C.No.2/2021 alleging commission of offences punishable under Sections 121 and 122 IPC; Sections 18A, 20, 38 of Unlawful Activities (Prevention) Act, 1967 (the UAP Act) and Section 3 read with Section 25(1B) (a) of the Arms Act, 1959. 18 persons were arrayed as accused. Annexure-1 crime 249/2017 was registered by Edakkara police station on 30/09/2017 based on the confession of accused no.1(A1) Kalidas in crime no.153/2017, Sholayur police station, Palakkad. In the said confession, A1 disclosed that he along with the other accused persons had conspired and conducted training camp during September 2016 in the forest of Karulai, Malappuram for furthering the activities of the proscribed terrorist organization, CPI (Maoist). On 19/03/2020 the investigation was handed over to the Anti-Terrorist Squad (ATS). During the course of investigation by the ATS, the involvement of seven more persons was revealed based on the forensic examination of the electronic gadgets recovered from the scene of crime in Crime no.536/2016, **Crl.Appeal No.622 of 2023** 5 Edakkara police station. ATS arrested A19 to A25 and thereafter on 29/03/2021, Annexure-II 164 Cr.P.C. statement of A20 Shobha, was recorded. On completion of investigation, the ATS filed Annexure-III charge sheet before the Sessions Court, Manjeri against five arrested accused persons, namely, A1, A7, A19, A22 and A25 alleging commission of offences punishable under Sections 121, 121A, 122 IPC; Section 18, 18A, 20, 38, 39 of UAP Act; Section 7 read with Section 27(2)(a) of the Arms Act, 1959 and Section 27(1)(e)(iv) of the Kerala Forest Act, 1961. The Sessions Court took the case on file as S.C.No.765/2021. Subsequently by order dated 19/08/2021, the Central Government handed over the investigation to the NIA. S.C.No.765/2021 was transferred to the NIA Court, Ernakulam and the case has been renumbered as S.C.No.2/2021. After the NIA took over the investigation, they again questioned A20 Shobha and a statement was recorded on 07/11/2021. As part of the investigation, the NIA conducted a video identification on 07/01/2022. The video clippings were alleged to have been found in the digital devices seized from the scene of occurrence in Crime no.536/2016, Edakkara police station. In the said proceedings, A20 Shobha identified three more accused persons including the appellant/A19. **Crl.Appeal No.622 of 2023** 6 Based on the said proceedings, namely, Annexure-IV, the appellant/A19 was arrayed as A27 in the case. The Special Court tendered pardon to A20 by order dated 30/03/2022 in C.M.P.No.139/2022. After investigation, the NIA filed charge sheet against 20 accused persons including the appellant herein, in which he has been arrayed as A19 alleging commission of offences under Sections 120B, 121, 121A, 122, 471 IPC; Section 27(1)(e)(iv) of the Kerala Forest Act, 1961; Section 7 r/w Section 27(2) of the Arms Act as well as Sections 18, 18A, 20, 38 and 39 of the UAP Act, 1967. A20 Shobha has been cited as CW204 in Annexure-V charge sheet filed by the NIA on 23/04/2022. Annexure-VI is the copy of the 161 statement dated 07/11/2021 of CW204 Shobha. On 24/06/2022 the NIA arrested the appellant/A19 pursuant to a non-bailable warrant issued by the Special Court. From the said day, the appellant is in judicial custody. 6. Though medical grounds are also cited in the appeal memorandum, the same was not urged before us and hence we are not considering the said ground. 7. It was submitted by the learned counsel for the appellant/A19, that the approver, CW204 Shobha, originally arrayed as A20, never referred to the **Crl.Appeal No.622 of 2023** 7 role of the appellant/A19 in her earlier statements to the investigating agencies. Annexure-I crime was investigated by the local police for 2 ½ years, that is, from 30/09/2017 to 19/03/2020. No materials were found to implicate the appellant herein. The investigation by ATS was from 19/03/2020 to 20/08/2021, that is, for a year and five months. Still no involvement of the appellant/A19 was found. It is only when the NIA entered the picture/scene, the appellant has been implicated in Annexure-V charge sheet, that is, 4 ½ years after the registration of Annexure-I crime. The approver CW204 gave Annexure-VI 161 statement on 07/11/2021. She gave Annexure-II 164 statement on 29/03/2021. In neither of these statements, she has implicated the appellant/A19. However, as per a video identification alleged to have been conducted on 07/01/2022, which proceedings is Annexure-IV, she has for the first time identified the appellant/A19. This identification is not proper or correct, as CW204 is stated to have identified the appellant from his back view and not by seeing his face and so there is every possibility of CW204 committing an error in the identification, goes the argument. 8. It is true that the complicity of the appellant in the initial stages of **Crl.Appeal No.622 of 2023** 8 investigation had not been revealed. That alone is no ground to disbelieve the involvement of the appellant/A19 in the crime. CW204 approver, according to the prosecution, is a senior member of the banned outfit namely, PLGA Cadre of CPI (Maoist) and so she personally knows all the persons who had participated in the armed training camp. The accused persons including the appellant herein are alleged to be members of the proscribed terrorist organization CPI (Maoist) rendering support for furthering the activities of the organization. They are also alleged to have associated, conducted and participated in the physical and arms training for waging war against the State and also conspired and associated themselves for furthering the activities of the proscribed terrorist organization. The arms training camp lasted for several days. It is stated that about 28 identified accused persons had actively participated in the camp conducted by the proscribed terrorist organization. The training was conducted in multiple stages, and they were not given training together. Further the co-accused, namely, B.G.Krishnamurthy, accused no.18 (A18), who is alleged to be one of the main organizers of the camp has disclosed that the appellant as well as CW204 Shobha had participated in the arms training camp together with others. It is also alleged **Crl.Appeal No.622 of 2023** 9 that A14 has disclosed the place where he and the other comrades had attended the training and the meeting organized by CPI (Maoist) from May 2016 to September 2016. The allegations against the appellant are quite serious. The question whether CW204, the approver, is reliable or credible, can be decided only after trial. 9. Further, in addition to CW204, the prosecution also relies on the statements of CW196 and CW197, who are none other than a neighbour and brother of the appellant/ A19. They also have identified the appellant from the video shown to them by the NIA. The argument that it was some video that had been shown to the said witnesses and that there is no material to show that the same video shown to CW204 had been shown to CW196 and CW197 also, and hence their identification by the said witnesses is also doubtful, is liable to be rejected because the aforesaid witnesses are none other than the neighbour and brother of the appellant herein. CW197 identifies the appellant by referring to the colour of the dress worn by the appellant in the video. Therefore, the materials on record show _prima facie_ involvement of the appellant/A19 in the crime. 10. It was further argued relying on the decision of the Supreme **Crl.Appeal No.622 of 2023** 10 Court in **Vernon v. State of Maharashtra** , **2023 SCC OnLine SC 885** , that even if CW204 had identified the appellant herein, the same is inadmissible because it was done in the presence of an officer of the NIA and hence cannot be admitted in evidence. The Apex Court referring to the dictum in **National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734** , held that the expression 'prima facie true' would mean that the materials/evidence collated by the investigating agency in the charge sheet must prevail, unless overcome or disproved by other evidence, and on the face of it, the materials must show complicity of such accused in the commission of the offences alleged. The 'prima facie test' would not be satisfied unless there is at least surface analysis of the probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth. Therefore, relying on this dictum, the argument advanced is that the identification of the appellant by CW204 in the presence of a police officer is of no value and inadmissible in evidence. In the absence of the said piece of evidence, there cannot be a _prima facie_ case made out against the appellant. As no _prima facie_ case is made out, the statutory prohibition in the matter of grant of bail **Crl.Appeal No.622 of 2023** 11 contained under Section 43D (5) of the UAP Act will not be attracted, goes the argument. 11. _Per contra,_ it was submitted by the learned Public Prosecutor that the officer present at the time of the video identification proceedings, was present in her capacity as a translator as CW204, a Tamilian, does not know Malayalam. The officer was not present in her capacity as a police officer, but only in her capacity as a translator. In addition to the translator there were two other independent witnesses also. It was also pointed out that this contention had never been raised before the trial court. The present proceedings is an appeal from the impugned order dated 24/01/2023 in Crl.M.P.No.67/2022 of the Special Court and hence a ground that was not raised before the Special Court cannot be allowed to be raised in the appeal. It is true that such a ground is not seen raised by the appellant before the Special Court. Therefore, when the correctness of the impugned order is considered, the appellant cannot bring in new facts to be decided by the appellate court. Now even if this argument is accepted and the identification of the appellant by CW204 approver is ignored, there is still the statements of CW196 and CW197 identifying the appellant. Therefore, the Special Court **Crl.Appeal No.622 of 2023** 12 was right in holding that a _prima facie_ case has been made out against the appellant/A19. That being the position, the bar under Section 43D(5) of the UAP Act is attracted. We find no infirmity in the impugned order. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/P.B. SURESH KUMAR JUDGE** **Sd/-** **C.S.SUDHA JUDGE** Jms **Crl.Appeal No.622 of 2023** 13 ## **APPENDIX OF CRL.A 622/2023** PETITIONER ANNEXURES Annexure-I COPY OF THE FIR IN CRIME NO. 249/2017 DATED 30/09/2017 OF EDAKKARA POLICE STATION Annexure -II COPY OF THE SEC. 164 STATEMENT OF A20SHOBHA Annexure- III COPY OF THE RELEVENT PORTION OF CHARGE SHEET FILED BY ATS BEFORE THE SESSIONS COURT,MANJERI Annexure -IV COPY OF THE VIDEO PROCEEDINGS DATED 07/01/2022 Annexure-V COPY OF THE RELEVENT PORTION OF CHARGE SHEET FILED BY NIA DATED 23/04/2022 Annexure VI COPY OF THE 161 STATEMENT DATED 07/11/2021 OF CW 204-APPROVER-SHOBHA Annexure-VII CERTIFIED COPY OF THE ORDER IN CRL.M.P. 67/2022 IN SC NO.2/2021/NIA/KOC