T.M. Sajil S/o Makkar v. Union of India (National Investigation Agency), Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** **OP(Crl.).No. 202 of 2018** **AGAINST THE ORDER IN CRL.M.P.NO.121/2017 IN SC 1/2015 of SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM** **PETITIONER/ACCUSED NO.2:** **T.M.SAJIL S/O. MAKKAR, THOTTATHIKUDIYIL HOUSE, RANDARKARA POST, MOOVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.K.MOHAMED JAMEEL SRI.P.C.NOUSHAD** ## **RESPONDENT/PETITIONER:** **UNION OF INDIA REPRESENTED BY THE NATIONAL INVESTIGATION AGENCY, KOCHI BRANCH OFFICE REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR, NATIONAL INVESTIGATING AGENCY, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY ADVS. SRI.M.AJAY, SPL. P.P FOR NIA** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09.8.2018, THE COURT ON 9.10.2018 DELIVERED THE FOLLOWING:** OP(Crl) No.202/18 :2 : ## **C.R.** ## **J U D G M E N T** ## _**Shaffique, J.**_ This Original Petition is filed by the 2[nd] accused in SC No.1/2015 of the Special Court for NIA cases, Ernakulam challenging order in Crl.M.P.No.121/2017. The petition has been filed by the petitioner seeking to modify the order granting bail. Bail was granted as per order in Crl.M.P.No.96/2017 on 15/9/2017 on condition that the accused should be under the surveillance of a Civil Police Officer who had to keep a visitors register with him and the accused was directed to bear the expenses of the Civil Police Officer. The petitioner filed Crl.M.P.No.121/2017 to modify the condition to the extent that he should not be mulcted with the liability to pay the expenses. The respondent objected to the said application. The Court below came to a finding that bail was granted to the accused on medical grounds whereas the other accused are in judicial custody. If there is no police surveillance, there will be every chance to the petitioner for intimidating the witnesses who belongs to the same locality. Therefore, police surveillance cannot be withdrawn considering the seriousness of the offences. 2. The learned counsel for the petitioner submits that the petitioner is an autorickshaw driver and comes from a poor family. Heart surgery had to be performed for him at Kottayam Medical College OP(Crl) No.202/18 :3 : Hospital and after discharge, he is residing at Payippra Panchayat. He had already remitted `50,000/- in the treasury towards the expenses of Civil Police Officer. After his discharge from Kottayam Medical College Hospital, a Civil Police Officer from Muvattupuzha police station is deputed for the surveillance as directed by the Court and he is demanding expenses from the petitioner. His only complaint is that the expenditure should not be mulcted on him and the Court below was not justified in not allowing the same. 3. The above application had been objected to by the respondent. One main ground urged is regarding the maintainability of the Original Petition. It is contended that the National Investigation Agency Act, 2008 provides for an appeal against any order which is not an interlocutory order. The above order being a final order, the remedy of the petitioner is to prefer an appeal and therefore the OP is not maintainable. Section 21 is the appellate provision, which reads as under:- _“_ _**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._ _(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._ _(3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an_ OP(Crl) No.202/18 :4 : _interlocutory order of a Special Court._ _(4) Notwithstanding anything contained in sub-section (3) of section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail._ _(5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:_ _Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days: Provided further that no appeal shall be entertained after the expiry of period of ninety days.”_ 4. The crux of the argument is based on sub section (4). It is argued that when an appeal can be filed to the High Court against an order of the Special Court granting or refusing bail, the impugned order can also be termed as a refusal from the part of the Special Court in modifying the conditions of bail, which apparently would come within an order passed in a bail application and therefore, appellate remedy has to be invoked. 5. The learned Special Prosecutor for NIA placed reliance upon a few judgments of the Apex Court:- (i) _**State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others**_ [(2003) 8 SCC 50]. In this case, the Apex Court was considering the power of the High Court to grant bail invoking the provisions of Criminal Procedure Code in a matter where the accused were apprehended for offences under the Prevention of Terrorism Act, 2002 (for short POTA). It was held that High Court can exercise power u/s OP(Crl) No.202/18 :5 : 34(4) of the POTA only by way of an appeal against an order of the Special Court. Without there being an order of the Special Court refusing bail, the accused have no power to file appeal before the High Court praying for grant of bail. It was further held that even power u/s 482 of Cr.P.C cannot be resorted to, if there is a specific provision in the Code for redressal of the grievance of the aggrieved party. This judgment may not have application to the facts of the case as we are concerned about an instance where the Special Court had passed an order in an application filed for modifying the bail conditions wherein the question to be considered is whether such order passed is only an interlocutory order from which no appeal will lie. (ii) _**State v. Navjot Sandhu**_ [(2003) 6 SCC 641]. This judgment had been cited to emphasise the scope and extent of jurisdiction to exercise the power under Art.227 of the Constitution of India. This was a case in which the Apex Court was considering a matter relating to the POTA. During trial, the accused applied before the Special Judge seeking a direction that the intercepted conversation cannot be used as evidence in the trial to prove the charges under POTA. The Special Judge after hearing the matter in detail dismissed the application. It appears that one of the accused filed a statutory appeal u/s 34 of POTA. Thereafter the trial proceeded and evidence was recorded. In the meantime, another accused filed a writ petition which was later withdrawn and he OP(Crl) No.202/18 :6 : filed an application u/s 482 of the Cr.P.C r/w Art.226 and 227 of the Constitution of India to quash the order dated 11/7/2002. Another accused also preferred an appeal against the order dated 11/7/2002 u/s 34 of of POTA and Section 482 of Cr.P.C. Since Section 482 Cr.P.C was mentioned, all the matters were placed before a learned Single Judge of the High Court. The learned Single Judge of the High Court disposed of all the applications without mentioning whether it was exercising the power of superintendence under Art.227 of the Constitution of India or its inherent power u/s 482 of the Criminal Procedure Code. Apex Court observed that the order dated 11/7/2002 passed by the Special Court was an interlocutory order. Though it was contended that the High Court had passed the order exercising power under Art.227 of the Constitution of India, the Apex Court did not agree with the same. Further it was held that on the facts of the case, the power under Art.227 of the Constitution of India or the inherent jurisdiction under S. 482 of Cr.P.C should not have been exercised, even if such powers were available. Thereafter reference was made to various judgments of the Apex Court and it was held at paragraph 28 as under:- _“28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that_ OP(Crl) No.202/18 :7 : _they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”._ 6. As far as the aforesaid judgment is concerned, the Apex Court only found that, on the particular set of facts, it was not proper to invoke the jurisdiction under Art.227 or under Section 482 Cr.P.C. One of the main reason for setting aside the impugned order was that an appeal u/s 34 was already pending before the Division Bench of High Court and that apart, the correctness of interlocutory order by virtue of S.34 of POTA could have been challenged only in an appeal filed against the final judgment. 7. There cannot be any dispute about the law laid down by the Apex Court in the above judgment. But in the present case, we are not faced with such a situation. The Original Petition is filed under Art.227 of the Constitution of India. The question is whether an appeal is OP(Crl) No.202/18 :8 : maintainable against the impugned order. The impugned order is only an interlocutory order and it could not be taken up in an appeal after the final judgment. The facts of the case dealt by the Apex Court in _**Navjot Sandhu**_ (supra) is entirely different from the facts of the present case. In the present case, the impugned order cannot be taken up in appeal after the final judgment. Nevertheless, it is an interlocutory order in a matter relating to modifying the conditions of bail. Hence, this judgment cannot be construed to fetter the jurisdiction vested in this Court under Article 227 of the Constitution of India. (iii) _**Rajkumar Shivhare v. Assistant Director, Directorate of Enforcement and another**_ [(2010) 4 SCC 772]. This judgment is cited to emphasise the point that when a statutory forum is created by law for redressal of grievances, especially in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. When the High Court is a statutory forum of appeal on a question of law, the same should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The Apex Court was considering an issue coming under the Foreign Exchange Management Act, 1999. There cannot be any dispute on the legal position emanating from the above judgment. 8. Coming back to the facts of the case, we are of the view that the impugned order is not one against which an appeal could be filed u/s OP(Crl) No.202/18 :9 : 21(4) in so far as the order is not either granting or refusing bail. Bail has already been granted and what we are concerned with is only an order refusing to modify the conditions of the bail. The impugned order could only be treated as an interlocutory order coming within S.21(1) against which there is no other remedy available for the petitioner. 9. It is settled law that orders passed in bail applications are in the form of interlocutory orders. It is for that reason that S.21(4) has been incorporated in the NIA Act by which an order granting or refusing bail is treated as an interlocutory order. The position of law had been well settled in _**Usmanbhai Dawoodbhai Memon v. State of Gujarat**_ [(1988) 2 SCC 271], wherein the Apex Court after referring to _**V.C. Shukla v. State**_ [(1980) Supp SCC 92], held at para 24 as under:- _**“24.** At the conclusion of the hearing on the legal aspect, Shri Poti, Learned Counsel appearing for the State Government contended, on instructions, that an order passed by a Designated Court for grant or refusal of bail is not an “interlocutory order” within the meaning of Section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression “interlocutory order” has been used in Section 19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State, Fazal Ali, J. in_ OP(Crl) No.202/18 :10 : _delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word “judgment” is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in Section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The court must interpret the words “not being an interlocutory order” used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to_ OP(Crl) No.202/18 :11 : _grant bail were not interlocutory orders and therefore appealable under Section 19(1) of the Act, cannot be accepted”._ 10. Therefore, the impugned order can only be treated as an interlocutory order and it is neither an order granting or refusing bail nor an order which is appealable. 11. Petitioner had invoked the supervisory jurisdiction of the High Court under Art.227. When the statute does not provide for a forum to challenge an order which causes manifest injustice or undue hardship to a party to a lis, it is open for him to approach this Court by invoking the supervisory jurisdiction. It is settled law that the High Court can interfere under Art.227 when the Courts below refuse to exercise jurisdiction vested in it or when there is manifest injustice. The law has been well settled in _**Dahya Lal v. Rasul Mohammed Abdul Rahim**_ (AIR 1964 SC 1320) and _**Trimbak Gangadhar Telang v. Ramachandra Ganesh Bhide**_ (AIR 1977 SC 1222). 12. Apparently, the Court below did not exercise the jurisdiction to interfere with the conditions of bail proceeding on the basis that surveillance is highly necessary as there is every chance for the accused to influence the witnesses who are from the very same locality. Before this Court, the only request made is to relieve him from the obligation to pay the expenditure directed to be paid to the Civil Police Officer. Police Officers are paid their salary by the Government. In an instance where, as a condition for bail, a Civil Police Officer is deputed for surveillance, it OP(Crl) No.202/18 :12 : is the obligation of the State to incur the said expenditure. We could understand mulcting such liabilities on persons who are capable of paying the expenses. In the peculiar circumstance of the factual scenario, the Court below ought to have exercised the jurisdiction to interfere with atleast the direction to pay the expenses of surveillance. In the result, this OP(Crl) is allowed. The impugned order is set aside and the condition in the bail that the petitioner should pay the expenses of the Civil Police Officer, who is deputed for surveillance, shall stand withdrawn. However, the petitioner shall not be entitled for getting refund of the amount already remitted. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **P.SOMARAJAN** Rp **JUDGE** OP(Crl) No.202/18 :13 : ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ORDER IN CRIMINAL M.P.NO.96/2017 IN S.C.NO. 01/2015 OF SPECIAL COURT FOR NIA CASES.** **EXHIBIT P2 THE TRUE COPY OF THE PETITION NUMBERED AS CRL.M.P.NO. 121/2017.** **EXHIBIT P3 THE TRUE COPY OF THE OBJECTION OF RESPONDENT IN CRL.M.P.NO. 121/2017.** ## **EXHIBIT P4** **THE TRUE COPY OF THE ORDER IN CRL.M.P.NO. 121/2017 IN S.C.NO. 01/2015 OF SPECIAL COURT FOR NIA CASES.** Rp //True Copy// PS to Judge