Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(MAD) 8394

HIGH COURT OF MADRAS
M.SUNDAR, R.SAKTHIVEL, JJ
M.Mohamed Abbas – Appellant
Versus
Union of India, represented by The chief Investigating Officer, The Inspector of Police, National Investigation Agency, Chennai Branch, Chennai (RC-42/2022/NIA/DLI) – Respondent
Criminal O.P.No.12229 of 2023 | Criminal Appeal No.678 of 2023 | H.C.P.No.1114 of 2023

Advocates:
For the Appellants/Petitioners: Mr.R.Vivekananthan, Mr.S.Jim Raj Milton, Ms.M.Krithika, Mr.S.Parthasarathy
For the Respondents: Mr.Tushar Mehta, Mr.S.V.Raju, Mr.AR.L.Sundaresan, Mr.R.Karthikeyan, Mr.B.Mohan, Mr.N.Baaskaran, Mr.E.Raj Thilak

Mala fide motives in prosecution cannot solely dictate the quashing of an FIR, but lack of substantial evidence can justify bail under UAPA provisions.

Headnote:(A) Criminal Procedure Code, 1973 - Section 482 - National Investigation Agency Act, 2008 - Section 21 - Unlawful Activities (Prevention) Act, 1967 - Sections 13, 17, 18, 18B, 38 and 39 - Quashing of FIR and bail - The petitioner, a practicing Advocate, challenged the addition of his name as an accused post social media allegations against custodial torture of a defendant. The court needed to assess whether the allegations were made in bad faith, and the principles governing mala fide were examined. There was found to be no specific overt act attributed to the petitioner and the FIR did not constitute a case for the prosecution nor did it pass muster for prima facie truth to deny bail. (Paras 14, 30, 41, 49)

(B) Malicious Prosecution - Assertions of mala fide conducted by prosecution were evaluated. The court highlighted the difference in parameters for quashing an FIR versus granting bail, ruling that while the plea for quashing was denied due to classification of accusations, the lack of substantial evidence justified the granting of bail. Resulted in setting aside the trial court's order dismissing bail - Petitioner granted bail with conditions. (Paras 14, 25, 49)

COMMON ORDER

M.SUNDAR, J

Captioned matters will be governed by this common order.

FACTUAL MATRIX :

2 Factual matrix in a nutshell, i.e., facts that are essential for appreciating this common order are that the petitioner Mr.M.Mohamed Abbas is a practicing Advocate [to be noted, Mr.M.Mohamed Abbas is the petitioner in captioned Crl.O.P.No.12229 of 2023, appellant in captioned Crl.A.No.678 of 2023 and Mr.M.Syed Mohamed Abuthahir (Mr.M.Mohamed Abbas's brother) is the petitioner in captioned HCP No.1114 of 2023 but this court shall be referring to him as 'petitioner' in this common order for the sake of convenience and clarity]; that petitioner enrolled as an Advocate in the Bar Council of Tamil Nadu on 01.11.2006; that the petitioner has been practicing as a Lawyer for over 16 ½ years now predominantly in Madurai Bench of Madras High Court and in the District & Sessions Courts, Madurai; that petitioner's father-in- law Mr.Mohamed Ali Jinnah is also a practicing Advocate in Madurai; that on 16.09.2022, Under Secretary with the Ministry of Home Affairs, New Delhi directed the 'National Investigation Agency' [hereinafter 'NIA' for the sake of brevity] to register a 'First Information Report' ['FIR' for the sake of brevity] based on what is described as credible information; that pursuant to such directive, NIA registered FIR No.RC- 42/2022/NIA/DLI against 13 named individuals and other unknown persons for suspected offences under Sections 120B, 153A and 153AA of 'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of brevity] and Sections 13, 17, 18, 18B, 38 and 39 of 'the Unlawful Activities (Prevention) Act, 1967 [Act 37 of 1967]' {hereinafter 'UAPA' for the sake of brevity}.

3 The crux and gravamen of the aforementioned FIR is, the accused persons are office bearers of 'Popular Front of India' ('PFI' for the sake of brevity) which is registered as a society under the Societies Registration Act, 1860 (Act 21 of 1860) vide Registration No.S/226/Dist.South/2010 in Delhi; that extremist ideology is being spread; that alleged activities include planning of unlawful acts, planning of terrorist acts, organising marches, raising of funds for committing terrorist activities and recruitment of members for such activities; that the FIR goes on to say that such activities inter-alia cause communal disharmony and ill feelings among members of different religions; that there is credible information that PFI has been clandestinely associated and is extending support to another terrorist organization; that thereafter, i.e., post FIR, on 28.09.2022, the Central Government declared PFI as a 'unlawful association' within the meaning of Section 2(1)(p) of UAPA; that such declaration is under Section 3(1) of UAPA, for a period of five years; that RC No.42/2022/NIA/DLI (CNR No.TNCH06-000894-2023) {hereinafter 'said case' for the sake of brevity and convenience} is now on the file of 'The Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases) Chennai at Poonamallee, Chennai-56' ['hereinafter 'trial court' for the sake of convenience and clarity]; that one Thiru Jinnah was summoned by NIA on 05.03.2023 in said case; that on 06.03.2023, petitioner made a post in a social media platform (Face Book) inter-alia alleging that Thiru Jinnah was subjected to custodial torture and condemned the same; that the petitioner filed a memo of appearance for Thiru Jinnah in said case; that on the very next day, i.e., 07.03.2023, NIA sought permission from authorities concerned for intercepting petitioner's phone conversations; that on 17.03.2023 NIA had filed a final report in trial court against 10 out of 13 named accused in the FIR (after completion of investigation).

4 On 30.03.2023, based on a complaint from Superintendent of Police, NIA, a case vide Crime No.293 of 2023 on the file of Thallakulam Police Station, Madurai City came to be registered against the petitioner for an alleged offenc

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2023 Supreme(Online)(MAD) 8394

Mala fide motives in prosecution cannot solely dictate the quashing of an FIR, but lack of substantial evidence can justify bail under UAPA provisions.

Cases Referred (4)