Soundarajan @ Soundar v. Union of India (NIA)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 CRL.A NO. 967 OF 2022 ``` ``` AGAINST THE ORDER DATED 29.07.2022 IN CMP NO.68/2022 IN RC NO.01/2021/NIA/KOC, NOW PENDING AS SC NO.4/2021 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM ``` ## **`APPELLANT:`** ``` SOUNDARAJAN @ SOUNDAR AGED 24 YEARS, S/O AMUDHA, NO.72, AGNI FAIRY LAND, VANAGARM, MADHURAVAYAL, CHENNAI, TAMIL NADU, PIN – 600095. ``` ``` BY ADVS. SADIK ISMAYIL SAIPOOJA ``` ## **`RESPONDENT:`** ``` UNION OF INDIA REPRESENTED BY NATIONAL INVESTIGATIVE AGENCY, KOCHI, THROUGH ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA, KOCHI, PIN – 682031. ``` ``` BY ADV ASG OF INDIA ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ``` ``` ALONG WITH CRL.A.1003/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 CRL.A NO. 1003 OF 2022 ``` ``` AGAINST THE ORDER DATED 19.09.2022 IN CRL.MP NO.211/2022 IN SC NO.4/2021/KOC OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM ``` ## **`APPELLANT/ACCUSED NO.14 (IN CUSTODY SINCE 01.10.2021):`** ``` AHAMED FASLY @ FAZLY BHAI AGED 47 YEARS, S/O ABDUL HASAN, NO. 38/18, IBRAHIM SAHIB STREET, II LANE MANNADY, CHENNAI, TAMIL NADU, PIN – 600001. ``` ``` BY ADVS. PRANOY K.KOTTARAM ATHUL BABU VISHNU BABU ``` ## **`RESPONDENTS:`** ``` UNION OF INDIA REPRESENTED BY NATIONAL INVESTIGATIVE AGENCY, KOCHI, THROUGH THE DEPUTY SOLICITOR GENERAL, HIGH COURT OF KERALA, KOCHI, PIN – 682031. ``` ``` BY ADV S MANU,DSGI ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH CRL.A.967/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & SOPHY THOMAS, JJ.** **-------------------------------------------------------------------------** Crl. Appeal No.967 of 2022 _(against the impugned order dated 29.07.2022 in Crl.MP No.01/2021/NIA/KOC, (now pending as SC No.4/2021) on the file of the Special Court for trial of NIA Cases, Ernakulam)_ & Crl. Appeal No.1003 of 2022 _(against the impugned order dated 19.09.2022 in Crl.MP No.211/2022 in SC No.4/2021/KOC on the files of the Special Court for trial of NIA Cases, Ernakulam)_ **--------------------------------------------------------------------** Dated this the 23[rd] day of November, 2022 ## **JUDGMENT** ## **Alexander Thomas, J.** The sole appellant in Crl.A. No.967/2022, and the sole appellant in Crl. A. No.1003/2022 have been originally arrayed as accused No.8 & accused No.14, respectively in the Criminal proceedings, which led to the Sessions Case, SC No.4/2021/NIA/ KOC, on the file of the special court for trial of NIA Cases, Ernakulam, Kerala, for offences punishable under Sec.7 read with Sec.25(1AA) of the Arms Act, 1959, and Secs.38, 39 & 40 of the Unlawful Activities (Prevention) Act (UAPA), 1967. It is common ground that, later, both these appellants/accused were granted pardon, as per the orders of the Special Court, and they are now approvers in the said proceedings. Even prior to the grant of pardon, and before they were compelled to stand in the shoe of approvers, 2 Crl. A. Nos.967/2022 & 1003/2022 they have been under judicial remand, due to their involvement in the criminal proceedings. 2. These appellants made applications for bail before the above special court, after they were granted pardon. The application for bails of these appellants/approvers have been rejected by the Special court, as per the impugned order dated 29.07.2022, rendered by the Special court in Crl. M.P. No.68/2022, filed by the appellant in Crl.A. No.967/2022, as well as the impugned order dated 19.09.2022, rendered by the Special court in Crl.M.P. No.211/2022 in SC No.4/2021/NIA/KOC, respectively, etc., in the case of the appellant in Crl. A. No.1003/2022. 3. Being aggrieved by the rejection of the bail applications, as above, these respective appellants have filed the aforecaptioned respective criminal appeals, challenging the bail rejection orders and praying the grant of bail by this Court. These appeals have been filed under Sec.21(4) of the National Investigating Agency (NIA) Act, read with Sec.482 of the Code of Criminal Procedure (Cr.P.C.). 4. Heard Smt.Saipooja, learned counsel appearing for the appellant in Crl.A. No.967/2022, Sri.Pranoy K. Kottaram, learned counsel appearing for the appellant in Crl.A. No.1003/2022 and Crl. A. Nos.967/2022 & 1003/2022 3 Sri.S.Manu, learned Deputy SGI, who is the authorised counsel for the respondent-NIA. 5. The Special court has issued the impugned orders in the matter of rejection of the bail applications, mainly on the ground that there is statutory bar under Sec.306(4)(b) of the Cr.P.C., for granting bail to an accused, who is on remand and who later becomes an approver. ## 6. Sec.306(4) of the Cr.P.C. reads as follows:- _“Sec. 306 (4) Every person accepting a tender of pardon made under sub-section (1)—_ - _(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;_ - _(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.”_ 7. The issue as to whether, despite the said prohibition, contained in Sec.306(4)(b) of the Cr.P.C., whether the High Court has got jurisdiction to grant bail, in exercise of the extra ordinary inherent powers conferred under Sec.482 of the Cr.P.C., is no longer _res integra_ and is covered by various decisions of this Court, including the one rendered in the case in _**Abdul Azeez v. State of Kerala**_ [2019 (4) KLT 993]. It may be pertinent to refer to paras 27 & 28 of the decision of this Court in _**Abdul Azeez’**_ s case supra [2019 (4) KLT 993], which read as follows:- Crl. A. Nos.967/2022 & 1003/2022 4 _“27. Therefore, this Court is of the considered opinion that a balanced and harmonious approach should be taken so that extremes from both sides are avoided. To hold that S.306(4) would amount to a total prohibition and absolute fetter to release the approver on bail, is one extreme. On the other hand, to take the view that once an accused is granted pardon, he loses his status of an accused and become a witness and that therefore ordinarily the inherent powers under S.482 of the Cr. P.C. could be exercised to release him on bail, is the other extreme. A realistic and golden middle ground has to be struck and it may not be possible to envisage a strait-jacket formula as to in what manner discretion is to be exercised by the High Court under S.482 of the Cr.P.C. in cases of this nature. No straight jacket formula can be put forward. The basic approach should be that the provisions contained in S.306(4) (b) of the Cr.P.C. would amount to a general bar but that in rare and exceptional cases, the said provision will not amount to total prohibition and absolute fetter on the High Court in exercising the inherent powers conferred under S.482 of the Cr. P.C. to consider the plea of an approver to be released on bail, after weighing in various relevant aspects of the matter._ _28. In the light of abovesaid aspects, this Court is of the considered opinion that the provisions contained in S.306 (4) of the Cr. P.C. should be construed as a general bar in releasing the approver on bail, until the conclusion of the trial, if he is not already on bail, but at the same time, a vestige of discretion is available as per the inherent powers conferred on the High Courts as per S.482 of the Cr. P.C. to consider the plea of the approver to be released on bail in rare and exceptional cases, after careful weighing of all relevant and crucial aspects of the case. So, this Court is of the view that the legal position laid down by this Court in Saidevan's Thampis' case (supra), Ismail's case (2016 (3) KLT 445= 2016 (4) KHC 26), Shammi Firoz's case (supra) do not require any serous reconsideration.”_ 8. Hence, in view of the leagal position laid down by this Court, in decisions as in _**Abdul Azeez’**_ s case supra [2019 (4) KLT 993], this Court has the powers under Sec.482 of the Cr.P.C., to consider the plea for grant of bail in such cases, subject to the various parameters mentioned in those decisions. One of the legal positions in that regard is that the bar contained in Sec.306(4)(b) of the Cr.P.C., is not to penalise an accused who became an approver, in the matter of grant of bail, but only to protect his better interest and 5 Crl. A. Nos.967/2022 & 1003/2022 safety, as once he gets a pardon and is prepared to depose evidence against the other co-accused, such other co-accused may have inimical attitudes towards such approvers, etc. 9. On a previous occasion, we had specifically directed the respondents herein, who appeared through the learned Deputy SGI, as to what exactly are the factual objections, in the matter of grant of bail, and as to what exactly are the dangers that were apprehended to the safety of the petitioners, etc. 10. The respondents have now filed separate statements in both these criminal appeals, in compliance with the orders passed by this Court on 15.11.2022, in these appeals. 11. Para No.12 of the statement filed by the respondents in Crl.A. No.967/2022, reads as follows:- - _“12. It is submitted that the Appellant is one of the prime witness of this case and his evidence is inevitable for the successful prosecution of the case. Since Soundarajan has not been charged by the Agency and the Hon’ble Special Court for NIA Cases already approved the application of tendering pardon to the accused, the respondent is not objecting the grant of bail, however humbly prayed to impose strict conditions. If, the Hon’ble Court is inclined to grant bail to this appellant, may direct the appellant to execute a bond with two solvent sureties, not to leave Chennai except for the purpose of reporting before the investigating agency or to attend before the Hon’ble Courts, not to influence either directly or indirectly any of the witnesses in this case, to surrender his passport before the Hon’ble special Court and if he is not possessing of the same to file an affidavit to that effect, to report before the Investigation Officer/investigating agency at Chennai at least once in a week, not to make any press meetings, channel discussion, communications through social media either directly or indirectly, not to involve in any other offence while on bail, to file an affidavit before the NIA special court, undertaking not to object the day to_ Crl. A. Nos.967/2022 & 1003/2022 6 _day proceedings of the trial, it shall be carried out either in the presence of himself or his advocate.”_ ## 12. Para No.11 of the statement filed by the respondents, in ## Crl.A. No.1003/2022, reads as follows:- - _“11. The Appellant is one of the prime witness of this case and his evidence is inevitable for the successful prosecution of the case. Since charge sheet was not filed against Ahamed Fasly (A14) by the Respondent and the Hon'ble Special Court for NIA Cases already approved the application of tendering pardon to the accused, the respondent is not objecting the grant of bail, however it is humbly prayed to impose stringent conditions. If the Hon'ble Court is inclined to grant bail, may direct the appellant to execute a bond with two solvent sureties, not to leave Chennai except for the purpose of reporting before the investigating agency or to appear before the Hon'ble Courts, not to influence either directly or indirectly any witnesses of this case, to surrender his passport before the Hon'ble special Court and if he is not possessing of the same to file an affidavit to that effect, to report before the Investigation Officer/ investigating agency at Chennai atleast once in a week, not to make any press meetings, channel discussion, and communicate through social media either directly or indirectly, not to involve in any other offence while on bail, to file an affidavit before the NIA special court, undertaking not to object the day to day proceedings of the trial, it shall be carried out either in the presence of himself or his advocate._ ## 13. The respondents have fairly submitted that they do not have any objections in the grant of bail and that this Court may impose stringent conditions while granting bail, etc. 14. Since the respondents have no valid objections for granting bail to these approvers, we are of the firm view that bail could be granted to the appellants in these cases, in the light of the well settled legal position adumbrated by this Court in decisions as in _**Abdul Azeez’**_ s case supra [2019 (4) KLT 993]. 15. Accordingly, it is ordered, in the interest of justice and in Crl. A. Nos.967/2022 & 1003/2022 7 the exercise of the enabling powers conferred on this Court, more particularly, under Sec.482 of the Cr.P.C., that the sole appellant in these two criminal appeals shall be granted bail, subject to the following conditions: - (i) The respective appellants shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) and shall also furnish two solvent sureties for the like sum, both to the satisfaction of the Special court for trial of NIA cases, Ernakulam, who is dealing with SC No.4/2021/NIA/ KOC. - (ii) The appellants shall also surrender their passports before the abovesaid Special court and in case they do not have passports, then they shall file an affidavit before the said court stating that they do not have a passport, etc. - (iii) As the appellants are proposing to reside in Chennai, it is ordered that they shall not leave Chennai, except for the purpose of reporting before the Investigating Agency or to appear before the courts concerned. - (iv) They shall report before the Investigating Officer/ Investigating Agency at Chennai, on all Saturdays, at any time between 10 a.m. to 11 a.m. Crl. A. Nos.967/2022 & 1003/2022 8 - (v) The appellants shall not influence, either directly or indirectly, any of the witnesses in this case. - (vi) The appellants shall not participate in any press meetings, channel discussion and communicate through social media, on any such issues directly or indirectly, in regard to this case. - (viii) The appellants shall not commit any offence, while on bail. - (ix) The appellants will also file an affidavit before the aforesaid NIA Special court, undertaking not to object to the day-to-day proceedings of the trial and that it shall be carried out either in their presence or their authorised counsel, etc. 16. Since, the learned Advocates appearing for the both the appellants submit that the appellants may find it extremely difficult to have sureties, who has properties within the State of Kerala, it is ordered, in the interest of justice, that the appellants can furnish sureties, who are solvent and having property in the state of Tamil Nadu. 17. If the appellants become involved in any prejudicial activity, then the respondents will be at liberty to conduct appropriate enquiries in that regard, to ascertain the correctness of Crl. A. Nos.967/2022 & 1003/2022 9 such allegations and then may file appropriate applications before this Court, in this case, for cancellation of bail, granted to the appellants, as above. 18. No other orders and directions are called for. With these observations and directions, the above criminal appeals, will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** Skk//23112022 Crl.A. No.967/2022 & 1003/2022 ## **`APPENDIX OF CRL.A 967/2022`** ## **`PETITIONER’S ANNEXURES:-`** ``` Annexure1 ``` ``` TRUE COPY OF THE STATEMENT DATED 29.09.2021 OF THE PETITIONER RECORDED UNDER SECTION 164 OF CRIMINAL PROCEDURE CODE, BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ERNAKULAM ``` ``` Annexure 2TRUE COPY OF THE ORDER DATED 29.07.2022 IN CMP NO.68/2022 IN RC NO.01/2021/NIA/KOC, PASSED BY THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM ``` ## **`RESPONDENT’S ANNEXURES:-`** ``` NIL ``` Crl.A. No.967/2022 & 1003/2022 ## **`APPENDIX OF CRL.A 1003/2022`** ## **`PETITIONER’S ANNEXURES:-`** ``` Annexure AA TRUE COPY OF THE FIR DATED 05.04.2021 BY THE VIZHINJAM POLICE STATION Annexure BA TRUE COPY OF THE 164 STATEMENT BY THE APPELLANT DATED 24.11.2021 Annexure CA TRUE COPY OF THE ORDER DATED 29.07.2022 IN CMP NO. 252/2021 IN SC NO. 04/2021/NIA/KOC BY THE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM ``` ## **`RESPONDENT’S ANNEXURES:-`** ``` NIL ```