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2019 Supreme(Ker) 823
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, N. ANIL KUMAR, JJ.
Thwaha Fasal S/o. Aboobacker & Ors. – Appellants
Versus
State of Kerala Represented by Public Prosecutor, High Court of Kerala, Ernakulam & Ors. – Respondents
Crl. Appeal Nos. 1300 & 1301 of 2019
Decided On : 27-11-2019
For the Appellant : Sri. K.S. Madhusoodanan, Sri. Thushar Nirmal Sarathy, Sri. M.M. Vinod Kumar, Sri. P.K. Rakesh Kumar, Sri. K.S. Mizver, Sri. M.J. Kirankumar.
For the Respondents: Sri. K.V. Sohan, State Attorney.
IMPORTANT POINTS
What is to be looked for, from the documents in the case diary produced, is whether there is any material to prima facie satisfy the court that the accusation against the accused is true. It is also clearly stated in Sub-section (6) that the restrictions on granting bail under Sub-section (5) are in addition to the restrictions under the Cr.P.C. or any other law for the time being in force for granting bail.
Headnote:
The Unlawful Activities (Prevention) Act, 1967- Sections 20, 38 and 39 –Criminal Procedure Code- Section 439-Any order passed by the Sessions Court granting or refusing bail with respect to any offence coming under the UA(P) Act, which is included in the Schedule of the NIA Act, is appealable to the High Court under S.21(4) of the NIA Act and in such cases, the application for a regular bail under S.439 Cr.P.C is not maintainable before the High Court.
Statement of facts:
Defacto complainant noticed that the accused persons were in a perplexed state and they did not properly account for their presence at the place- 1st accused was possessing a shoulder bag. When the bag was searched, the defacto complainant found certain booklets and pamphlets/leaflets indicating their association with Communist Party of India (Maoist), undisputedly a banned terrorist organisation figuring in the first schedule to the UA(P) Act. At 19.00 hours, the accused were arrested and the objectionable materials along with a motor bike were seized. At 19.30 hours, the crime was registered as above- Seizure mahazar prepared on 01.11.2019 shows the details of the reading materials recovered from the possession of the 1st accused. The appellants moved for bail before the Sessions Judge, Kozhikode. Their bail application was dismissed by the learned Sessions Judge finding prima facie that there are materials against the appellants to proceed with an investigation under Section 38 of the UA(P) Act. Learned Sessions Judge found that it is not fit to release the appellants on bail at that stage of the investigation. Feeling aggrieved, the appellants preferred these appeals.
Finding of the court:
There are sufficient materials against the appellants to continue an investigation for the aforementioned offences under UA(P) Act and release of the appellants at this stage of investigation may hamper or adversely affect the furtherance of the same. It is the prosecution case that the 3rd accused is still at large and he evades the process of law. The investigating agency apprehends that the accused persons, if released on bail, may not only meddle with the investigation, but also flee from justice. We are not persuaded to ignore these apprehensions-Not inclined to grant bail to the appellants at this stage of the investigation.
Result: Dismissed.
JUDGMENT :
Hariprasad, J.
Appellants are the accused in Patheerankavu Police Station Crime No.507 of 2019 registered under Sections 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (in short, "UA(P) Act").
2. Gist of the prosecution allegations is thus: On 01.11.2019 Sub Inspector of Police, Pantheerankavu Police Station along with his party started patrolling duty at 17.00 hours. At about 18.45 hours, while passing through Perumanna -Parammal road, they reached near Medi Care Laboratory, adjacent to Parammal football turf. They found three persons suspiciously standing on a dark shop varandha. Defacto complainant found them clearly on flashing a torch light. On seeing the police party, one person took to his heels and could not be apprehended. Police officers restrained the other two persons, who identified themselves by revealing their names and addresses. Defacto complainant noticed that the accused persons were in a perplexed state and they did not properly account for their presence at the place. 1st accused was possessing a shoulder bag. When the bag was searched, the defacto complainant found certain booklets and pamphlets/leaflets indicating their association with Communist Party of India (Maoist), undisputedly a banned terrorist organisation figuring in the first schedule to the UA(P) Act. At 19.00 hours, the accused were arrested and the objectionable materials along with a motor bike were seized. At 19.30 hours, the crime was registered as above.
3. Seizure mahazar prepared on 01.11.2019 shows the details of the reading materials recovered from the possession of the 1st accused. The appellants moved for bail before the Sessions Judge, Kozhikode. Their bail application was dismissed by the learned Sessions Judge finding prima facie that there are materials against the appellants to proceed with an investigation under Section 38 of the UA(P) Act. Learned Sessions Judge found that it is not fit to release the appellants on bail at that stage of the investigation. Feeling aggrieved, the appellants preferred these appeals.
4. Heard Sri. K.S. Madhusoodanan and Sri. S. Rajeev, learned counsel for the appellants and Sri. K.V. Sohan, learned State Attorney. We have carefully perused the case diary produced by the State Attorney and also a memo filed by him dated 14.11.2019, along with a report by the Assistant Commissioner of Police, South, Kozhikode City, dated 13.11.2019.
5. Impugned order shows that the learned Sessions Judge has treated the bail application as one under Section 439 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”). However, these appeals are filed by invoking Section 21(4) of the National Investigation Agency Act, 2008 (in short, “NIA Act”). In the light of the pronouncement by a co-ordinate Bench of this Court in Sahadath Hossain v. State of Kerala (2017 (1) KHC 156) we find no defect in preferring an appeal against the dismissal of the bail plea. Reasons set out in paragraph 7 of the said judgment, quoted below, will justify filing the appeals before this Court.
“7. Therefore it is clear that, with respect to an offence under the UA(P) Act, which is specified in the schedule of NIA Act, the Sessions Court is only exercising the jurisdiction which is conferred on the Special Court and that such Court is vested with all the powers conferred by the NIA Act and it is bound to follow the procedure provided under the relevant chapter of the NIA Act. Hence, even though the offence is not tried by the Special Court, the Sessions Court is exercising only the jurisdiction of the Special Court, as conferred by the NIA Act. Therefore, for all practical purposes, the Sessions Court which is trying an offence under the UA(P) Act, which is a scheduled offence, need to be deemed as a Special Court, irrespective of whether the investigation is conducted by the NIA or not. Therefore, this Court is of the considered opinion that, any order passed by the Sessions Court granting or refusing bail with r
