Mastigudda Aboobacker v. National Investigation Agency

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936 **==> picture [159 x 22] intentionally omitted <==** APPELLANT/ACCUSED NO.4: ------------------------------------------- MASTIGUDDA ABOOBACKER, S/O UMMER (LATE) AKKARAMMEL HOUSE, HOSDURG KADAPPURAM P.O., KANHANGAD P.O, (PIN - 671 315) KASARAGODE DISTRICT. BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.M.VIVEK SRI.T.ANIL KUMAR ## RESPONDENT/COMPLAINANT: --------------------------------------------- N.I.A REPRESENTED BY THE SPECIAL 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 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 537 of 2014 ## **APPENDIX** PETITIONER'S ANNEXURES: A : THE TRUE COPY OF THE COMMON JUDGMENT IN CRL.APPEALS NO.1552/13 AND 1321/13 DTD.20/12/2013. B : THE TRUE COPY OF THE ORDER IN CRL.M.P. NO.90 OF 2014 DATED 16.04.2014. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE **'CR'** # **THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ.** ----------------------------------------------Crl. Appeal No.537 of 2014 ----------------------------------------------Dated this the 7[th] day of July, 2014 ## **J u d g m e n t** ## **Thottathil B. Radhakrishnan,J.** - 1.Heard the learned senior advocate for the appealing accused and the learned special public prosecutor for NIA. - 2.This appeal under Section 21(4) of the National Investigation Agency Act, 2008, for short, “NIA Act”, is against the order of the NIA Court refusing to grant the request for bail made under Section 439 of the Code of Criminal Procedure. The appellant is the 4[th] accused in Session Case No.2 of 2013 (NIA, Hyderabad) registered by the National Investigation Agency, 'NIA', for short. - 3.The offences alleged against the persons accused in the CRA No.537 of 2014 2 case are under Sections 120B, 489B and 489C read with Section 34 of the Indian Penal Code, for short, “IPC”. By now, all the other accused persons are stated to be on bail either by way of default bail or otherwise. 4.The appealing 4[th] accused filed Crl.M.P. No.308 of 2013 seeking bail. That was dismissed by the court below on 26.06.2013. Later, he filed Crl.M.P. No.366 of 2013 seeking bail. That was also dismissed by the court below. Both those orders were challenged in independent appeals, viz., Crl. Appeal Nos.1321 of 2013 and 1552 of 2013. Those appeals were heard and jointly ordered by the Division Bench of this Court on 20.12.2013. As per that order, this Court recorded certain crucial facts. It was noted that the appellant was in Abudabi. NIA had requested through the Ministry of External Affairs that he be deported to India. Appellant came to India on 02.11.2012 and was arrested at the Delhi Airport. He was CRA No.537 of 2014 3 produced and remanded to judicial custody. He continues to be in judicial custody. - 5.NIA filed final report against the accused persons 1 to 4, i.e., including the appellant on 29.04.2013 for offences under Sections 120B, 489B and 489C read with Section 34 of the IPC. On an application made by it, NIA was granted permission by the court below to conduct further investigation in respect of the offences under the Unlawful Activities (Prevention) Act, 1967, for short, “UAP Act”. Further investigation was also permitted as against the other accused persons. - 6.At the hearing of the aforenoted previous appeals, namely, Crl.Appeal Nos.1321 of 2013 and 1552 of 2013, this Court noted that the statement of the first accused would indicate that Fake Indian Currency Notes (FICN) were brought to India as a part of financial terrorism and CRA No.537 of 2014 4 to destroy and destabilise the Indian economy. Ultimately, the submissions on behalf of the appellant regarding his health condition and other relevant aspects were noted. The views of the Public Prosecutor were recorded. Thereby it was ensured that the appellant would get appropriate expert medical attention as and when needed. The submission on behalf of NIA that every endeavour would be made to complete further investigation and have a final report filed within three months was also recorded. 7.Noticing all the aforesaid facts, the Division Bench, at that point of time, had recorded that there was no error committed by the court below in dismissing the applications for bail. It was made clear that if the final report is not filed after completing the further investigation, within a period of 3 months, the appellant would be entitled to move the court below for bail, in CRA No.537 of 2014 5 which case, the court below will consider all the facts and circumstances and pass appropriate orders. 8.Challenging the order now issued by the court below dismissing the application for bail, the learned senior counsel for the appellant argued in support of this appeal that the court below was carried away by the submission on behalf of NIA that the allegation includes involvement of persons with Pakistan nationality and the appellant who was residing in Abudabi had procured FICN worth ` 10 lakhs from Pakistani nationals. He argued that there is no such allegation even in the final report which was laid before the court below. He further argued that the final report, not having been filed within the statutory time; the appellant was entitled to statutory bail. The argument is that the grant of further time for further investigation for offences under the UAP Act necessarily shows that a final report in terms of Sections 173(1) and CRA No.537 of 2014 6 173(2) of Cr.P.C. has not yet been filed and the further exercise that is now being carried out cannot be put under sub-section 8 of Section 173 of the Cr.P.C. In support, he referred to the decision of this Court in **Furtado v. C.B.I.** [1996(2) KLT 1]. - 9.Per contra, the learned special public prosecutor for the NIA, making reference to **Dinesh Dalima v. CBI** [(2007) 8 SCC 770] argued that the entire allegations as against the accused persons are part of the report now available with the court below and NIA is within its authority to bring in further materials and the whole of the materials may disclose even other offences, as also against other persons. 10.The learned senior counsel for the appellant also argued that even the so-called final report by NIA states that they were not able to reach any tangible material for CRA No.537 of 2014 7 enumerating offences punishable under UAP Act. To this, the answer given by the special public prosecutor for NIA is that the existing materials themselves satisfy the law as it now stands as understood by courts, as to whether an offence under the UAP Act is disclosed as committed. This is a contentious issue of facts and law, and according to us, is a matter which could be deliberated upon only in the main proceeding before the court of first instance, that is to say, in the course of trial, and not in this appeal as against the order refusing to grant bail. - 11.Suffice it is for us to now say that the ratio of **Furtado** (supra) cannot be applied as a precedent in deciding this appeal having regard to the law laid in **Dinesh Dalima** (supra); the distinction between which has been dealt with by this Bench in the judgment delivered in Crl.Appeal No. 1675 of 2013 and connections on 6[th] June, 2014. The so-called indefeasible right under CRA No.537 of 2014 8 Section 167(2) of the Cr.P.C. with the proviso appended to that, would be available only when the charge sheet is not filed and investigation is kept pending. Once the charge sheet is filed, that right ceases. Such a right does not survive merely because a further investigation remains pending within the meaning of Section 173(8) of the Cr.P.C. While we notice this, we may also say that in the course of consideration of an application for bail, it is not always possible or necessary to consider whether a particular report is a final report in terms of Section 173(2) of the Cr.P.C. or a supplemental report in terms of sub-section 8 of Section 173 of the Cr.P.C. 12.In the case in hand, we may also say that if at all any question of denial of statutory bail was an issue that the appellant had to raise, he had the opportunity to do so when he stood with the appeals before this Court in the earlier round. In those appeals, no such plea was CRA No.537 of 2014 9 attempted to be pushed through. The Bench had decided the case on the premise that the final report was laid and what is going on is only a further investigation in terms of Section 173(8) of the Cr.P.C. The doctrine of adjudicatory exclusion applying the might and ought principle is not alien to criminal jurisprudence. At least in such situations, repeated applications for bail on grounds which might and ought to have been raised in the earlier rounds would necessarily stare to preclude subsequent proceedings in that regard. This is notwithstanding the principles as to individual liberty, because, plea as to such liberty is anathemic to the constitutional balance as to individual freedom vis-a-vis national security. 13.We may however say that the question whether what is going to be filed or what may be filed thereafter by the NIA before the court below is a final report under Section 173(8) or whether it would be an impermissible document CRA No.537 of 2014 10 within the format of Section 173 of the Cr.P.C. as a whole are matters to be left to the NIA Court and not to be deliberated in this appeal against an order rejecting an application for bail. It will be too premature if we were to endeavour to speak anything on that. 14.As of now, the judgment in Crl.Appeal Nos. 1321 and 1552 of 2013 dissuades us from probing into the finality or otherwise and the quality of the so-called final report that the NIA has filed and also the flair and scope of the further investigation as has been permitted by the court of first instance. We may hasten to add that no observations in this judgment would impair any defence in the main proceeding, finally, even on an issue as to whether there is illegality or irregularity in procedure which affects the right of the accused persons during the course of trial. CRA No.537 of 2014 11 15.On to the reasoning of the court below to reject the plea for bail by treating the application as one filed after laying the final report, we see that the learned Judge has enumerated reasons in paragraph 12 of the impugned order. The learned Judge, even if criticized of having stated that Pakistanis were involved and we are to state that such statements were inadvertently made on the basis of the submission made in court, we think that the basic ground on which bail has been rejected is the real apprehension in the mind of the court below that the appellant may flee from justice and would not be available to be put to trial if he were to be granted bail even on stringent conditions. The gravity of the punishment that could be handed down under Sections 489B and 489C and different other aspects including the allegation that there was an attempt to destablise the economy of the country have been appropriately weighed by the court of first instance. That exercise is the matter in the course of CRA No.537 of 2014 12 discharge of duties in a discretionary jurisdiction. The court below having applied mind to the relevant facts and factors, we do not find any ground to substitute such findings and grant bail even on conditions whatsoever. 16.For the aforesaid reasons, the appeal fails. In the result, this appeal is dismissed. Sd/- **THOTTATHIL B.RADHAKRISHNAN, JUDGE** Sd/- **P.B.SURESH KUMAR, JUDGE** //true copy// P.A. to Judge smv