National Investigation Agency; Younus Aliyar Vs. Sub Inspector of Police [Kerala High Court, 25-09-2014]

National Investigation Agency Act, 2008 – Section 21 – Unlawful Activities (Prevention) Act, 1967 – Section 43D – Which provision for appeal applies to orders of the NIA Court on bail applications ?

Bail

IN THE HIGH COURT OF KERALA AT ERNAKULAM

THOTTATHIL B.RADHAKRISHNAN, C.T.RAVIKUMAR & BABU MATHEW P.JOSEPH, JJ.

Crl.A.No.1511 of 2012

Dated this the 25th day of September, 2014

AGAINST THE ORDER IN CRL.M.P.NO.360/2012 IN NIA CRIME 1/2011 IN S.C.NO.41/2011 OF THE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM.

APPELLANT(S)/PETITIONERS/ACCUSED NO.8 AND 19

YOUNUS ALIYAR AND ANOTHER

BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.SUNNY MATHEW

RESPONDENT(S)/RESPONDENTS/COMPLAINANT-STATE

1. THE SUB INSPECTOR OF POLICE MUVATTUPUZHA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

2. THE NATIONAL INVESTIGATION AGENCY KERALA UNIT, ERNAKULAM, REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTENT OF LAW AND COMPANY AFFAIRS, NEW DELHI.

R2 BY ADV. SRI.M.AJAY, SPL. P.P FOR NIA R1 BY SRI.ROY THOMAS, PUBLIC PROSECUTOR

O R D E R

Thottathil B.Radhakrishnan, J.

1. This reference to the Full Bench is on the premise of an apparent conflict between two decisions of co-equal Benches rendered in criminal appeals filed under

Section 21 of the National Investigation Agency Act, 2008

“the NIA Act”, for short, which provision for appeal applies to orders of the NIA Court on bail applications. In its sum and substance, the apparent conflict is as to the effect of the proviso to sub-section (5) of

Section 43D of the Unlawful Activities (Prevention) Act, 1967

“UAP Act”, for short.

2. The aforesaid provision has been understood and applied in judgment dated 19.06.2012 in Crl.A.No.671 of 2012 and connected cases to hold that when a Bench of co-equal strength has recorded satisfaction of existence of a prima facie case against an indictee person for the purpose of application of the proviso to sub-section (5) of Section 43D of the UAP Act, it would not be open to a Bench of co-equal jurisdiction to render a different finding on the existence of a prima facie case on the very same materials. However, before that verdict was rendered, judgment dated 01.03.2012 was delivered by a Bench of co-equal strength, in Crl.A.No.182 of 2012 and connection, inter alia, observing that an earlier view taken on the play of the proviso to sub-section (5) of Section 43D shall not fetter the right of an indictee person to claim bail at later stages of the investigation, if sufficient circumstances are there. Before proceeding further, we may place on record that Crl.A.No.182 of 2012 and connection were decided noting that the investigation was not complete and the applications for bail have to be considered in the light of the totality of materials collected in further investigation by the National Investigation Agency (NIA). Though Crl.A.No.671 of 2012 and connections also arose from the same case pending before the Special Court for Trial of NIA cases, the observations as noted above, in that judgment, were made only on the basis of the fact that in earlier bail orders, the case diary was taken note of by the NIA Court and the appellate court. The fact that the investigation was not complete in that case is also apparent from that judgment. In the light of the aforesaid, we see that in both the judgments, which have generated an argument resulting in demonstration of an apparent conflict, the co-equal Benches were dealing with the same case pending before the NIA Court and the bail applications arising therefrom. The stage at which those applications stood at the relevant time was that final report under Section 173 of the Code of Criminal Procedure, 1973, “the Code”, for short, was not placed before the court.

3. The learned Senior counsel appearing for the appellants argued that the provisions in the Code as are contained in Sections 167 and 439 would apply and; notwithstanding that, whatever is provided in sub-section (5) though amounting to abridge of Section 43D of the UAP Act, the provisions of the Code, the proviso to sub-section (5) of Section 43D of the UAP Act cannot be understood in a restrictive manner to restrict the right of an indictee person to bail when circumstances are made out for grant of bail, even on the basis of the materials in the case diary and in the report made under Section 173 of the Code. When such materials are shown to have been left unconsidered while assessing the case diary in the earlier round or when final report has not been made, all such issues would be open in the later applications for bail and appeals arising therefrom, it is argued.

4. Per contra, the learned Special public prosecutor for the NIA argued that the doctrine of res judicata, though not applicable to bail applications, in statutory terms, the cardinal principles prescribing exclusion of repeated scouting to courts for bail orders are to be applied and this cannot be ignored. He further argued that both the judgments of co-equal jurisdiction, which are viewed as raising a conflict, could also be considered to be resolved in a manner that they are meaningfully permitted to operate within the framework of applicable statutory provisions.

5. Sub-section (6) of Section 43D of the UAP Act says that the restriction on granting of bail, specified in sub-section (5) of that Section, is in addition to the restrictions under the Code or any other law for the time being in force, on granting of bail. Subsection (2) of Section 43D is a legislative tool by which the contents of Section 167 of the Code would stand modified for application in matters falling under the UAP Act. These two provisions are eloquent legislative materials to say that applications for bail are, subject to the restrictions prescribed in Section 43D of the UAP Act, governed by the provisions of the Code as they relate to bail.

6. The proviso to sub-section (5) of Section 43D of UAP Act is to the effect that the accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Therefore, the proviso is, essentially, restrictive in nature. It operates as a restriction on the other available bail jurisdictions in terms of the Code and modifies the bail jurisdiction through sub-section (2) of Section 43D as well as by opening part of sub-section (5) of that Section. In other words, an exception in the form of a restriction is carved out and placed in the statute book in the form of a proviso. The effect of the said proviso starts to operate the moment the Court is of the opinion that there are reasonable grounds for believing that the accusation against the accused person is prima facie true. That formulation of opinion has to be on the basis of a perusal of the case diary or a report made under Section 173 of the Code. Therefore, that opinion can be either on the basis of the case diary or on the basis of the final report under Section 173 of the Code. Therefore, once a report is made under Section 173 of the Code, there is no question of any continued investigation unless under special circumstances, where further investigation goes on in terms of the provisions of the Code. However, when an application for bail is considered in terms of the proviso to subsection (5) of Section 43D of the UAP Act on the basis of the case diary during the course of an investigation in which a final report has not been made under Section 173 of the Code, it goes without saying that the further progress of the investigation will necessarily change or add on to the content of the case diary. In such events and situations, further materials would come into the case diary either pointing further to the guilt of the accused or defusing the prima facie conclusions arrived at in an earlier bail application, at an earlier stage of the case diary. Therefore, examination of a case diary at a particular stage of a case, to which sub-section (5) of Section 43D of the UAP Act applies, cannot be treated as conclusive to bind the accused person in the stage of a subsequent bail application, except in cases where there is, absolutely, no change of materials. This process would continue till the case comes to the status of a final report under Section 173 of the Code. Once such a report comes, the question of the case diary being the document to be depended upon to decide bail application, slowly fizzles into oblivion because the final report would then be decisive as the prosecutor or the investigation agency cannot turn back from it. We would also conceive that there may be exceptionally exceptional situations where the accused person would be able to show to the bail court, independent materials which may dislodge the prima facie materials and inferences available on the basis of the case diary. Insofar as the manner in which the NIA operates its activities of prosecution through the Special Courts constituted for the purpose of the NIA cases is concerned, it is necessary for us to here mention that the NIA Court and the bail court would also be cognizant of the fact that even after the report under Section 173(2) of the Code is placed, further investigations happen and are permitted under Section 173(8) of the Code. Obviously, if such a procedure is adopted in a particular case, the course of such further investigation will also be to the knowledge of the court through further reports and the last among the reports will also amount to a report under Section 173(2) of the Code.

7. The modifications made to the provisions of the Code and the variations made to the general law relating to bail as is contained in the Code are inexcusable in its application, more pointedly because, Section 48 of the UAP Act says that the provisions of that Act or any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than that Act or any instrument having effect by virtue of any enactment other than that Act.

8. In view of what we have stated above, we answer the reference as hereunder: