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2015 Supreme(Mad) 3673
IN THE HIGH COURT OF MADRAS
SATISH K. AGNIHOTRI, K.K. SASIDHARAN, JJ.
State of Tamil Nadu, rep by its Principal Secretary to Government, Home (Courts-II) Department, Secretariat, Fort St. George – Petitioner
Versus
S. Tharvees Maideen and Ors. – Respondent
W.A. Nos. 857 to 861 of 2015 and Connected miscellaneous petitions
Decided On : 16-10-2015
For the Appellant :Mr. AL. Somayaji, Advocate General assisted by Mr. T.N. Rajagopalan, Spl.G.P.
For the Respondent:Mr. K. Thilageswaran, Advocate
Headnote:
National Investigation Agency Act, 2008 - Section 22 - Unlawful Activities (Prevention) Act, 1967 - Sections 2(1)(d), 16(1)(a), 18 and 20 - Service of notice – Court – Definition of - Investigation - Whether "court" as defined under Section 2(1)(d) of Act, 1967 does include Special Court constituted under Section 22 of Act, 2008 - Whether Special Court constituted by impugned notification was properly constituted for trial of aforestated criminal cases - On constitution of Special Court, as afore stated, all afore stated criminal cases were transferred to said Special Court - Trial by Special Court was assailed by petitioners in different writ petitions - Learned Single Judge summarized grounds, which were taken up by writ petitioners before Writ Court, as under - Act, 2008, are not applicable to cases on hand, since these cases were not investigated by National Investigation Agency - Held, Constitution of a court is a procedural provision - Enacting an offence or imposing a penalty is a penal provision which is required to be construed strictly. Construction of even a penal provision may not also be strict - It depends on the nature of the provision and also the intention of the legislature and the mischief sought to be remedied under the enactment - Order of learned Single Judge to extent of holding constitution of the Special Court as without sanction of law and not legal, is set aside - Appeal allowed.
Satish K. Agnihotri, J.
The instant appeals arise from the common order dated 9.4.2015 passed in W.P. Nos. 16935, 16986, 17875, 33234 and 33235 of 2014. Notwithstanding service of notice and also names printed in the cause list, none has chosen to appear, except the respondent in W.A. No. 857 of 2015.
2. The writ petitioners filed the writ petitions separately, seeking to quash the G.O.Ms. No. 534, Home (Courts II) Department dated 5th August, 2014, wherein by notification the State Government, exercising powers conferred by sub-section (1) of Section 22 of the National Investigation Agency Act, 2008 (Central Act 34 of 2008) read with sub-section (1) of section 11 of the said Act, constituted a Special Court at Chennai (Poonamallee) for the trial of the following cases :
"(i) Vellore North Police Station Crime Number.599/2013 (Vellaiyappan murder case)
(ii) Hasthampatty (Salem City) Police Station Crime Number.297/2013 (Auditor Ramesh murder case)
(iii) Tirunelveli Crime Branch CID, Crime Number.01/2013.
(iv) Thideer Nagar Police Station Crime Number. 554/2013.
(v) Thirumangalam Taluk Police Station Crime Number 237/2011. (Planting of pipe bomb in the route of Tr.L.K. Advani).
(vi) Vellore South Police Station Crime Number.653/2012 (Dr. Aravind Reddy murder case).
(vii) Paramakudi Town Police Station Crime Number.90/2013 (Paramakudi Murugan murder case).
(viii) Gudiyattam Police Station Crime Number.408/2013 (Panchatcharam murder and robbery of Rs. 1.50 lakhs case)."
3. In case of S. Tharveen Maideen in WP(MD) No. 16935 of 2014, an offence was registered in Crime No. 237 of 2011 on the file of the Inspector of Police, Thirumangalam Police Station, Madurai for the offences under Sections 307, 120B read with 109 of IPC read with Section 6(r) read with 4(1) of the Explosive Substances Act, 1908, Section 16(1)(a), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967.
4. In case of Abdullah @ Abdul Rahman in WP(MD)No.16986 of 2014, a case in Crime No. 237 of 2011 was registered on the file of the Inspector of Police, Thirumangalam Police Station for the offences under Sections 120B, 109, 307, 153A, 149 of IPC r/w 34 of IPC, Section 4(a), 4(b), 4(i), 4(ii) r/w Section 6 of the Explosive Substances Act, 1908 and Section 16(1)(a), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967.
5. In respect of Musthafa in W.P.(MD)No.17875 of 2014, a case in Crime No. 237 of 2011 on the file of the Thirumangalam Taluk Police Station was registered for the offence under Section 120B, 109, 307, 153 of IPC, Sections 4(a), 4(b), 4(i), 4(ii) and 5 of the Explosive Substance Act, 1908 and Section 16(1)(b), 18 and 20 of Unlawful Activities (Prevention) Act, 1967.
6. In case of Sameem Banu in W.P.No.33234 of 2014, a case in Crime No. 599 of 2013 on the file of the Vellore North Police station was registered under the provisions of Section 302 of IPC, Section 5 of the Explosive Substances Act, 1908 and Sections 16(1)(a), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967.
7. In respect of Mohammed Thasin in W.P.No.33235 of 2014, a case in Crime No. 1 of 2013 on the file of the Inspector of Police, O.C.U., CBCID, Tirunelveli City Police Station was registered for the offence under Section 153A, 109, 120B IPC r/w Section 5 of the Explosive Substances Act, 1908 and Section 18 of Unlawful Activities (Prevention) Act, 1967.
8. On constitution of the Special Court, as afore stated, at Chennai (Poonamallee), all the afore stated criminal cases were transferred to the said Special Court. The trial by the Special Court was assailed by the petitioners in different writ petitions. The learned Single Judge summarized the grounds, which were taken up by the writ petitioners before the Writ Court, as under:
"(i) the provisions of the NIA Act, 2008, are not applicable to the cases on hand, since these cases were not investigated by the National Investigation Agency;
(ii) the definition of the word "Court" in Section 2(1)(d) of the Unlawful Activities (Pr
