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2022 Supreme(Ker) 351
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, C. JAYACHANDRAN, JJ.
Suresh Raj, S/o.Arasiratnam – Appellant
Versus
National Investigation Agency – Respondent
Crl.A No. 213 of 2022
Decided on : 14-06-2022
For the Appellant : SANGEETHA LAKSHMANA
For the Respondent: MANU S., SINDHU RAVISHANKAR, SMT.MINI GOPINATH, adv
Point of Law: Offences, which are triable exclusively by a Court of Session or Special Court, the power under Section 306 is to be exercised in the pre-committal stage, whereas the power under Section 307 at the post committal stage.
Headnote:
Code of Criminal Procedure, 1973 – Section 306 - National Investigation Agency Act, 2008 - Power to grant pardon as envisaged under Sections 306 and 307- To grant pardon to an accused at the post cognizance stage - whether pardon can be granted at the post cognizance stage to a person, who has not been arraigned as an accused in the final report - Person to whom pardon is to be tendered, need only be "directly or indirectly concerned in or privy to" the offence. The expression "directly or indirectly" indicates the nature of such person’s involvement in the crime, of which, the latter tends to be less incriminating. (Para 29 & 30)
Finding of the Court:
Order impugned has not considered as to whether the pardon sought for should be tendered or not. After rejecting the objections, the Special Court merely directed the accused persons to be produced in the next posting date, as per the impugned order. This is, for sure, an interlocutory order and therefore, the appeal is not maintainable in view of Section 21(1) of the Act. As regards the scope of a revision under Sections 397, read with 401 Cr.P.C, we are bound to notice the mandate under Section 21(3) of the N.I.A Act, specifically barring a revision from any judgment, sentence or order of the Sub Court, including an interlocutory order. We, therefore find that the instant appeal is not maintainable.
Result : Appeal dismissed
JUDGMENT :
Jayachandran, J.
1. Whether a Special Court constituted under the National Investigation Agency Act, 2008 can invoke the powers under Section 306 of the Code of Criminal Procedure to grant pardon to an accused at the post cognizance stage, is the issue posed by the appellant in this appeal. The incidental issue, which pops up, is whether pardon can be granted at the post cognizance stage to a person, who has not been arraigned as an accused in the final report.
2. The appellant herein is presently the sixth accused in S.C No.04/2021/NIA on the files of the Special Court for Trial of NIA Cases, Ernakulam. In the instant appeal, the appellant impugns the order dated 17.1.2022 in Crl.M.P No.252/21, as per which, application filed by the N.I.A at the investigation stage seeking grant of pardon to accused nos.3, 8 and 14, has been taken up for consideration in the post cognizance stage, overruling the objections raised by the appellant/A6 and directed production of the said accused persons before the court in the next posting date.
3. The prosecution allegations and incidents, which culminated in the impugned order are narrated herein below:-
A Sreelankan fishing boat by name 'Ravihansi' was intercepted by the Indian Coast Guard in the Arabian Sea, which contained huge quantities of narcotic drugs, along with 5 AK-47 riffles and 1000 nos of 9 mm ammunition. The boat was seized by the Narcotic Control Bureau on 25.3.2021. A case, numbered as 2/2021, in respect of the narcotic drug (Heroin) seized, was registered against the six Sreelankan nationals, who travelled in the said boat on 26.3.2021. In respect of the other items found in possession of the accused persons, Crime No.498/2021 was registered before the Vizhinjam Police Station on 5.4.2021 under Section 27 of the Arms Act, read with Section 34 of the Penal Code against the said six accused persons. Pursuant to a notification issued, the N.I.A took over the investigation and the case was re-registered as R.C.No.1/2021/NIA/KOC under Sections 7, read with 25(1AA) of the Arms Act. After effecting formal arrest of the six accused persons from the Central Jail, Poojappura, they were produced before the Special Court, Kochi. In the custodial interrogation of the accused persons, the role of accused nos.7 (appellant herein) and 8 were revealed and they were arrested on 2.8.2021. According to the prosecution, accused nos.7 & 8 are members of the proscribed organisation, Liberation Tigers of Tamil Eelam (for short LTTE). Subsequently, offences under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Act were also incorporated.
4. On 27.9.2021, the National Investigation Agency filed Crl.M.P No.177/2021 before the Special Court seeking to record confession of accused nos.3, 8 and 14. The Special Court directed the N.I.A to file necessary application before the Chief Judicial Magistrate. As directed by the Chief Judicial Magistrate, statements of accused nos.8, 3 and 14 under S.164 Cr.P.C were recorded by the Judicial First Class Magistrate's Court No-III, Ernakulam on 20.10.2021, 24.11.2021 and 25.11.2021, respectively.
5. On 4.12.2021, the N.I.A filed the subject Criminal M.P (Crl.M.P No.252/2021) seeking tender of pardon to accused nos.3, 8 and 14. On 15.12.2021, the N.I.A filed final report, wherein the above referred three persons have neither been arraigned as accused persons, nor as witnesses. On account of the exclusion of the third accused (one among the three proposed approvers), the appellant, who was originally accused no.7, became accused no.6 in the array. On 30.12.2021, the Special Court took cognizance of the case.
6. Thereafter, the Special Court proceeded to consider Crl.M.P No.252/2021, whereupon the present appellant/A6 preferred Annexure-4 objection. However, the impugned order dated 17.1.2022 was passed overruling the appellant's objection, challenging which, the instant appeal is filed.
7. Heard Smt. Sangeetha Lakshmana, learned counsel for the appella
