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  Judgement - 10KLC-3785
 
   
   
 

Before V.Ramkumar, J.
Tuesday, the 26th day of October 2010/ 4th Karthika 1932

Party Array / Case No.


Bail Appl..No. 5134 of 2010()

 

 

1. ASHRUFF, AGED 40 YEARS,

                      ...  Petitioner

 

                        Vs

 

 

 

1. STATE OF KERALA, REP. BY PUBLIC

                       ...       Respondent

Judgement



    V. RAMKUMAR, J.

                       .......................................

           Bail Application Nos. 5134, 5795, 5824, 5940,

                    5950, 6017 and 6186 of 2010

                       ........................................

     

                           Dated: 26-10-2010

     

                             COMMON ORDER

     

     

         These are applications for regular bail filed by 9 among

     

    the 25 accused persons who are in custody in Crime No. 704 of

     

    2010 of Muvattupuzha Police Station for offences punishable

     

    under Sections 143, 147, 148, 120 B, 323, 324, 326, 441, 427,

     

    506 (ii), 307, 153 A, 201, 212 read with Sec. 149 I.P.C. and Sec.

     

    3 of the Explosive Substances Act, 1908 and Sections 15, 16,

     

    18, 18 B , 19 and 20 of the Unlawful Activities (Prevention) Act,

     

    1967.

     

         2.    B.A. 5134 of 2010 is filed by A2 who was arrested

     

    on 4-7-2010.     B.A. No. 5795 of 2010 is filed by A15 and A16

     

    who were arrested on 23-7-2010 and 24-7-2010 respectively.

     

    B.A. 5824 of 2010 is filed by A7 who was arrested on 9-7-2010.


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:2:-

     

     

    B.A. 5940 of 2010 is filed by A43 and A48 who were arrested

     

    on 7-8-2010.          B.A. 5950 of 2010         is filed by A19 who was

     

    arrested on 25-7-2010. B.A. 6017 of 2010 is filed by A47 who

     

    was arrested on 7-8-2010. B.A. 6186/2010 is filed by A1 who

     

    was arrested on 4-7-2010. As on today (i.e. 26-10-2010),            A1

     

    and A2 have completed 114 days, A15 and A16 have completed

     

    95 and 94 days respectively, A43,                  A47 and     A48 have

     

    completed 80 days,             A7 has completed 109 days and A19 has

     

    completed 93 days of detention. 25 persons have so far been

     

    arrested and 28 more are yet to be arrested. The weapons

     

    used for the assault are still to be recovered.

     

           3.      The case of the prosecution can be summarised as

     

    follows:-

     

                             THE PROSECUTION CASE

     

                 Pursuant to the criminal conspiracy hatched by the

     

          leaders and activists of the Popular Front of India ("P.F.I."

     

          for short) and its political wing called Social Democratic


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:3:-

     

     

          party of India ("SDPI" for short), on 4-7-2010 at about 8

     

          a.m. seven identifiable persons (A14, A27, A28, A37, A49,

     

          A50 and A51) formed themselves into an unlawful assembly

     

          armed with deadly weapons                  like hatchet , chopper,

     

          explosives etc. came in a Maruti Omni Van affixing a false

     

          registration number and intercepted a Wagon R Car in

     

          which      a Professor of Newman College, Thodupuzha by

     

          name T.J. Joseph, his sister who is a nun and mother were

     

          returning home after attending the Sunday Mass at Nirmala

     

          Matha Church .          The seven accused persons        who were

     

          waiting on the road leading to the Professor's house near

     

          the Nirmala Public Senior Secondary School at Hostelpadi,

     

          Muvattupuzha suddenly got out of the              Omini Van and

     

          smashed the window panes and side panes of the Professor's

     

          car . They pulled the professor out of the Wagon R car and

     

          dragged him on to the road . One of the accused, (A37)

     

          with the assistance of           the other co-accused   repeatedly

     

          inflicted cuts     on the right palm of the Professor     with the

     

          hatchet resulting in amputation of the right palm of the

     

          Professor .        Several cut injuries were inflicted by the


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:4:-

     

     

          assailants       on various parts of the body of the Professor .

     

          Sr. Stella who was in the car along with the professor was

     

          also manhandled and restrained from               going to the rescue

     

          of her brother . 81 year old Elikutty , the mother of the

     

          Professor was also not spared by the assailants.             Salomy,

     

          the wife of the Professor (who is the de facto complainant)

     

          and Midhun, the son of the Professor              rushed to the scene

     

          of occurrence seeing the incident. They were threatened

     

          and intimidated by the assailants              who threw     country

     

          bombs causing explosion and smoke . Midhun who went to

     

          the rescue of his father had inflicted a cut injury on the

     

          back of A37 . The assailants lifted Midhun and threw him

     

          into a nearby compound lying at a lower level of 4.10

     

          metres resulting in the boy sustaining injuries. Hearing the

     

          sound of explosion and the hue and cry                when the local

     

          people started pouring in , the assailants escaped from the

     

          scene in the Maruti Omni Van              after throwing the severed

     

          palm      of the Professor into the nearby compound.             The

     

          motive for the assault on the Professor is stated to be           the

     

          incorporation by him of a question               ridiculing  Prophet


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:5:-

     

     

          Mohammed and the Islam religion in a question paper set

     

          for the internal examination in Malayalam for the B.Com

     

          course in Newman College.

     

           4.      I heard Advocate Sri. T.G. Rajendran, the learned

     

    counsel appearing for the petitioners in B.A. Nos. 5940, 5950,

     

    6017 and 6186 of 2010. Advocate Sri. Sunny Mathew, the

     

    learned counsel appearing for the petitioners in B.A. 5795 of

     

    2010. Advocate Sri. S. Rajeev, the learned counsel appearing

     

    for the petitioner in B.A. 5134 of 2010 and Adv. Sri. Lify P.

     

    Francis, the learned counsel appearing for the petitioner in B.A.

     

    5824 of 2010 and also Adv.Sri. P.N. Sukumaran, the learned

     

    Addl. Director General of Prosecution appearing for the State.

     

                            PETITIONERS' ARGUMENT

     

           5.      The main submissions             made on behalf of  the

     

    petitioners are the following:-

     

                   No useful purpose will be served by the continued

     

           detention of the petitioners             who have already been


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:6:-

     

     

           interrogated and whose police custody            had also been

     

           obtained. Eventhough, in the initial remand reports the

     

           police took the stand that A1 to A7 were the assailants

     

           who formed the unlawful assembly, it was later conceded

     

           that the assailants were A14, A27, A28, A37, A49, A50 and

     

           A51 and that none of the petitioners herein had any role in

     

           the actual assault on the Professor. On 28-09-2010 the

     

           Assistant Public Prosecutor in-charge of the J.F.C.M.,

     

           Muvattupuzha filed a report under Sec. 43 D(2) (b) of the

     

           Unlawful Activities             (Prevention Act), 1967, seeking

     

           extension of the           period of detention    of the accused

     

           persons       up to 180 days.          On 30-09-2010 the learned

     

           Magistrate has passed an omnibus order extending the

     

           detention of the accused persons from 90 days to 180 days.

     

           A copy of the report filed by the A.P.P. was not furnished

     

           to the petitioners and the petitioners were not given an

     

           opportunity of being heard before the learned Magistrate

     

           passed the above order. Moreover , going by the offences

     

           under the Unlawful Activities (Prevention) Act, a Court of

     

           Session alone can deal with the accused during the crime


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:7:-

     

     

           stage and a report under Sec. 43 (D) (2) (b) of the said Act

     

           could be filed only by the Public Prosecutor and not the

     

           Assistant Public Prosecutor.             Separate reports had to be

     

           filed     in respect of       each and every accused and        the

     

           progress of the investigation and specific reasons              for

     

           extending the detention of each and every accused had to

     

           be     indicated in the report .          In the case of    similar

     

           provisions        under the TADA and the N.D.P.S. Act, the

     

           Apex Court         has held in      Hitendra Vishnu Thakur and

     

           Others v. State of Maharashtra and Others - JT 1994 (4) SC

     

           255 and        Sanjay Kumar Kedia            @    Sanjay Kedia   v.

     

           Intelligence Officer, Narcotic Control Bureau and Another

     

           - 2010 (1) KLD 539 (SC) that                 before  extending the

     

           detention of the accused they are entitled to notice of the

     

           report and an opportunity of being heard. Apart from the

     

           fact that the petitioners have been denied the above rights,

     

           the learned Magistrate had absolutely no jurisdiction to

     

           deal with the matter with effect from 12-8-2010 when the

     

           offences under the            Unlawful Activities Prevention Act,

     

           1967, were incorporated.


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:8:-

     

     

                  OBJECTION OF THE STATE PROSECUTOR

     

           6.       The learned Addl. Director General of Prosecution on

     

    the other hand           made the following submissions before me

     

    countering the aforesaid arguments:-

     

                   All the offences under the           Unlawful Activities

     

           (Prevention) Act incorporated in this case are punishable

     

           with imprisonment            for more than 7 years.   Therefore,

     

           those offences are exclusively triable by a Court of Session

     

           by virtue of Part II of the First Schedule to the Cr.P.C. The

     

           role of the Sessions Judge will arise only at the time of the

     

           trial of the offences and not before.            Eventhough the

     

           definition of "Court"           under Sec. 2 (d) of the said Act

     

           includes a Special Court constituted under the National

     

           Investigation Agency Act, no Special Court has been

     

           constituted by the State Government under the N.I.A. Act.

     

           Hence, the aforesaid offences will have to be tried by the

     

           Sessions Court. A reading of Sections 11 and 22 of the N.I.

     

           A. Act will go to show that the Special Court is to be

     

           constituted only for the trial of the case.       Therefore, it is


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:9:-

     

     

           only for the trial of the case that the Sessions Court also

     

           will have to be approached. In the light of the decision in

     

           Gangula Ashok v. State of A.P. - AIR 2000 SC 740 the

     

           Sessions Court can take cognizance of the offences only

     

           on a committal. If so, until the case is committed to the

     

           Court of        Session     under Sec. 209 Cr.P.C.        it is the

     

           Magistrate who can deal with the matter.            Hence, there is

     

           nothing wrong in the Magistrate at Muvattupuzha dealing

     

           with the case at the crime stage. The definition of the

     

           expression "Court"           under Section 2 (d) of the Unlawful

     

           Activities (Prevention ) Act, can be adopted only if it fits in

     

           with the context and not when                the context otherwise

     

           requires . The context under Section 43 D (2) (b) of the said

     

           Act is such that the definition           of the expression "Court"

     

           is not to be adopted.           There are offences in the Unlawful

     

           Activities (Prevention) Act such as Sections 10 to 13 which

     

           are punishable with imprisonment for less than 5 years.

     

           Going by the First Schedule of Cr.P.C. those offences are

     

           triable by the Magistrate of the First Class. If the argument

     

           of the petitioners is driven to its logical conclusion, then in


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:10:-

     

     

           a case where the offences involved are only those

     

           punishable under Sections 10 to 13, those offences also will

     

           have to be dealt with by a Court of Session . It is true that

     

           Section 43 D (2) (b)              only mentions about the Public

     

           Prosecutor whereas it is the Assistant Public Prosecutor

     

           who is in-charge of a Magistrate's Court by virtue of Sec.

     

           25 Cr.P.C. But then, Sec. 302 Cr.P.C. makes it clear that

     

           even a Public Prosecutor can appear before a Magistrate

     

           without the permission of the Magistrate. The requirement

     

           of a written notice to the accused before consideration of the

     

           report of the Public Prosecutor            as   insisted    upon   in

     

           Hitendra       Vishnu's case has been whittled down by a

     

           Constitution Bench of the Supreme Court in Sanjay Dutt v.

     

           State - 1995 Crl. L.J. 477 at paragraph 55 (2)(a) to hold

     

           that      no written notice giving reasons therein need be

     

           given to the accused and that it will be sufficient if the

     

           accused is produced before Court and informed that the

     

           question of extension of the period           of detentions is being

     

           considered.       All the petitioners must have been produced

     

           before the Magistrate and              therefore it is futile for the


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:11:-

     

     

           petitioners to contend that they were unaware of              the

     

           consideration by the Magistrate of the extension of their

     

           period of detention ordered in their presence.            All the

     

           petitioners were          involved in the     criminal conspiracy

     

           hatched       for the      murderous assault on    the Professor.

     

           Direct evidence of criminal conspiracy is difficult to obtain.

     

           There are 28 more             accused persons remaining to be

     

           arrested.       This was a terrorist activity carried on at the

     

           threat of the security of the State. The petitioners are not

     

           entitled to be enlarged on bail at this stage when the

     

           investigation is still in progress. If released on bail, they

     

           will definitely make themselves scarce and will flee from

     

           justice.

     

                          JUDICIAL EVALUATION

     

           7.      On hearing both sides at length           I am inclined to

     

    accept the contentions of the petitioners regarding the lack of

     

    authority of the Magistrate              to deal with  the case after the

     

    incorporation of the offences               under the   Unlawful Activities


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:12:-

     

     

    (Prevention) Act,           1967 (the "U.A. Act" for            short).       The

     

    following reasons persuade me to hold the said view:-

     

     A. As per Section 43 D (2) (b) of the U.A. Act, two more

           provisos have been added to Section 167 (2) Cr.P.C. after

     

           the proviso thereto. Under the first proviso so added by

     

           Sec. 43 D (2) (b) of the U.A. Act the "Court" is empowered

     

           to extend the period of detention of an accused person

     

           beyond 90 days and up to 180 days if the Court is satisfied

     

           with the report of the Public Prosecutor indicating the

     

           progress of the investigation and the specific reason given

     

           for the detention of the accused person beyond 90 days.

     

           The first proviso added by Section 43 D (2) (b) of the U.A.

     

           Act reads as follows:-

     

                      "Provided further that if it is not possible to complete the

                      investigation within the said period of ninety days, the

                      Court may if it is satisfied with the report of the Public

                      Prosecutor indicating the progress of the investigation

                      and the specific reasons for the detention of the accused

                      beyond the said period of ninety days, extend the said

                      period up to one hundred and eighty days":

     

           The expression "Court" in the above provision can only


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:13:-

     

     

           mean a Court as defined under Section 2 (d) of the U.A.

     

           Act.     Section 2 (d)       defines the     expression "Court" as

     

           follows:-

     

                     (d) "court" means a criminal court having jurisdiction,

                     under the Code, to try offences under this Act      and

                     includes a Special Court constituted under section 11 or

                     under section 21 of the National Investigation Agency

                     Act, 2008".

     

            Under the National Investigation Agency Act, 2008 (the

     

            "N.I.A. Act" for short) the Central Government is given

     

            the power to constitute a Special Court under Section 11

     

            thereof and the State Government is given the power to

     

            constitute a Special Court under Section 22 thereof. The

     

            mention of Sec. 21 of the N.I.A. Act in the definition of

     

            " Court " under Section 2 (d) of the U.A. Act is an obvious

     

            mistake for Sec. 22 of the N.I.A. Act. Thus, going by the

     

            definition of the word "Court " in the U.A. Act it is that

     

            criminal court having jurisdiction under the Cr.P.C. to

     

            try offences under the Act which is to be understood as the

     

            "Court" and it includes a Special Court constituted under

     

            the N.I.A.Act either by the Central Government or by the


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:14:-

     

     

            State Government. Admittedly, the State Government has

     

            not constituted any Special Court in the State of Kerala in

     

            exercise of its powers under Sec. 22 of the N.I.A.Act.

     

            But, there is no dispute that the Central Government has

     

            constituted the Special Court, SPE/CBI-I, Kochi as the

     

            Special Court under Sec. 11 of the N.I.A. Act.      The U.A.

     

            Act is a "scheduled offence" enumerated in the Schedule of

     

            the N.I.A. Act and falling under            the definition of

     

            "scheduled offence" in Sec. 2 (f) thereof.     Sec. 13 of the

     

            N.I.A. Act would indicate that every scheduled offence

     

            investigated by the National Investigation Agency has to

     

            be tried by the Special Court constituted by the Central

     

            Government under Sec.11 of the N.I.A. Act. In the case on

     

            hand      eventhough the State Government claims to have

     

            submitted a report to the Central Government under Sec. 6

     

            of the N.I.A. Act, as on today the investigation of the

     

            present case has not been taken over by the National

     

            Investigation Agency. The investigation of the case on hand

     

            is still conducted by the Dy.S.P. Muvattupuzha .


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:15:-

     

     

     B. In view of Sec. 10 of the N.I.A. Act, the power of the State

            Government to investigate and prosecute any scheduled

     

            offence is subject to the provisions of the N.I.A. Act.

     

            Section 43 of the U.A. Act specifies the officers competent

     

            to investigate the offences in question and by virtue of

     

            clause (c) thereof,             the present offences cannot be

     

            investigated by a police officer below the rank of a Dy.S.P.

     

            Hence with effect from 12-08-2010 when the offences under

     

            the U.A. Act were incorporated, the investigation of the

     

            present crime was taken over by the Dy.S.P. Muvattupuzha.

     

     C. Section 22 of the N.I.A. Act reads as follows:-

                       "22.  Power of the State government to constitute Special

                       courts:(1) The State Government may constitute one or more

                       Special Courts for the trial of offences under any or all the

                       enactments specified in the Schedule.

                             (2) The provisions of this Chapter shall apply to the

                             Special Courts constituted by the State Government

                             under sub-section (1) and shall have effect subject to

                             the following modifications, namely:-

                                    (i)  references  to  "Central  Government"    in

                                    sections 11 and 15 shall be constituted as

                                    references to State Government.


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                                -:16:-

     

     

                                    (ii) reference to "Agency" in sub-section (1) of

                                    section 13 shall be construed as a reference to

                                    the    "Investigation  agency   of    the   State

                                    Government".

                             (3) The jurisdiction conferred by this Act on a Special

                             Court shall, until a Special Court is constituted by the

                             State Government under sub-section (1) in the case of

                             any offence punishable under this Act,notwithstanding

                             anything contained in the code, be exercised by the

                             Court of Session of the division in which such offence

                             has been committed and it shall have all the powers

                             and follow the procedure provided under this Chapter.

     

     

                             (4) On and from the date when the Special Court is

                             constituted by the State Government the trial of any

                             offence investigated by the State Government under

                             the provisions of this Act, which would have been

                             required to be held before the Special Court, shall

                             stand transferred to that Court on the date on which

                             it is constituted".

     

            Thus, under Sec. 22 (3) of the N.I.A. Act, until a Special

     

            Court is constituted by the State Government,                          the

     

            jurisdiction conferred by the N.I.A. Act on the Special Court

     

            is to be exercised by the Court of Session notwithstanding

     

            anything contained in the Cr.P.C. Such jurisdiction is to be


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:17:-

     

     

            exercised by the Sessions Court in the case of any offence

     

            punishable under the N.I.A. Act.              The   U.A. Act is a

     

            "scheduled offence" punishable under the N.I.A. Act and,

     

            therefore, till the Special Court is constituted by the State

     

            Government, it is the Sessions Court within the limits of

     

            which the offences were committed, which has to try the

     

            offences.       The Court of Session has to follow the same

     

            procedure which is laid down for the Special Court under

     

            Chapter IV of the N.I.A. Act.            Under Sec. 16  (1) of the

     

            N.I.A. Act        the Special        Court is empowered to take

     

            cognizance of any offence either on a complaint or on a

     

            police report without a committal. Since the Sessions

     

            Court is also to follow the same procedure, that Court is

     

            also empowered to take cognizance of the offences without a

     

            committal.       The above procedure of the Special Court is

     

            analogous to the procedure followed by the Special Court

     

            under the Narcotic Drugs and Psychotropic Substances Act,

     

            1985 ("the N.D.P.S. Act" for short). While Sec. 16 (1) of

     

            the N.I.A. Act is similar to Section 36 A (1) (d) of the

     

            N.D.P.S. Act empowering the Special Court to take


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:18:-

     

     

            cognizance of the offences without a committal, the N.D.P.S.

     

            Act does not contain a provision similar to Section 22 (3) of

     

            the N.I.A. Act which says that the Sessions Court shall have

     

            all the powers of the Special Court and shall follow the

     

            same procedure provided under Chapter IV of the N.I.A.

     

            Act. On the contrary, what Section 36 D of the N.D.P.S.

     

            Act provides is that until the Special Court is constituted

     

            under Section 36 thereof, the offences shall be tried by a

     

            Court of Session. The procedure to be followed by a Court

     

            of Session is not prescribed under the N.D.P.S. Act. Hence

     

            the Sessions Court, under the N.D.P.S. Act will have to try

     

            the offences        by recourse to the procedure       under the

     

            Cr.P.C. as per which the Sessions Court can take

     

            cognizance of the offence only on a committal as provided

     

            under Section 193 Cr.P.C.

     

     D. When as per the scheme of the N.I.A. Act until the Special

            Court is constituted by            the State Government, it is the

     

            Sessions Court which is to try the scheduled offences and

     

            that too without a committal, the Sessions Court alone can

     

            extend the remand after the initial period of 30 days by


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:19:-

     

     

            virtue of Sec. 167 Cr.P.C. as modified by Sec. 43 D (2) of

     

            the U.A. Act. Under Sec. 167 (2) Cr.P.C. while the first

     

            remand of the accused for the initial period of 15 days can

     

            be authorised by           any Magistrate (the nearest Magistrate)

     

            whether he has jurisdiction or not to try the offence, further

     

            action like remand extension, release of the accused from

     

            custody       when it is considered that further detention is

     

            unnecessary, committal of the case to the Court of Session,

     

            trial etc. can be taken only by the Magistrate having

     

            jurisdiction to commit or try the offences. Thus, in the case

     

            of an offence punishable under the U.A. Act, while it is

     

            permissible to produce the accused for the purpose of first

     

            remand         before the nearest Magistrate (whether he has

     

            jurisdiction or not to try the offence),         the extension of

     

            remand can be ordered only by the Sessions Court which

     

            alone is competent to try the offences.

     

     E. Sec. 15 of the N.I.A. Act provides for the appointment before

            the Special Court, of Public Prosecutors and Addl. Public

     

            Prosecutors         who are deemed to be Public Prosecutors

     

            within the meaning of Sec. 2 (u) Cr.P.C. That is the reason


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:20:-

     

     

            why the first proviso added by Section 43 D (2) (b) of the

     

            U.A. Act refers to the report of a Public Prosecutor. If it

     

            was the Magistrate who was to extend                the period of

     

            detention beyond 90 days, then the Legislature would have

     

            included the Assistant Public Prosecutor also for the

     

            purpose of submitting a report for the extension of the

     

            period of detention. As per Sec. 25 Cr.P.C. prosecution in

     

            the Courts of Magistrate is to be conducted by the Assistant

     

            Public Prosecutors.              Reliance placed on Section 302

     

            Cr.P.C. by the State Public Prosecutor is of no avail to

     

            him.      The purpose of Sec. 302 Cr.P.C. is not to allow the

     

            Public Prosecutor to conduct the prosecution before the

     

            Magistrate Courts. The said provision only says that

     

            while the Advocate General, Government Advocate, Public

     

            Prosecutor or the Assistant Public Prosecutor             do not

     

            require any permission of the Magistrate to conduct the

     

            prosecution, all other           persons require the permission of

     

            the Magistrate to conduct the prosecution.

     

     F. It is true that there are offences like those under Sections

            10 to 13 of the U.A. Act which are punishable only with


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:21:-

     

     

            imprisonment for less than 5 years and going by Part II of

     

            the First Schedule to Cr.P.C. those offences are triable by

     

            Judicial Magistrates of the First Class.          But then, in the

     

            light of the wording of             Sec. 22 (3) of the N.I.A. Act

     

            indicating that the jurisdiction conferred on the Special

     

            Court shall be exercised by a Court of Session in the case of

     

            any offence under the Act, whatever be the punishment

     

            prescribed for the offences, all offences under the U.A. Act

     

            are to be tried by the Court of Session which alone can deal

     

            with the case from the stage of remand extension.          Hence,

     

            after the incorporation of the offences under the U.A. Act,

     

            the power of remand extension in this case could have been

     

            exercised only by the Court of Session since the

     

            Muvattupuzha Magistrate was not a committal Court.

     

           8.      As for the alleged requirement of notice to the

     

    accused while the Court is considering the                  report of the

     

    Public Prosecutor under the first proviso added by Section 43

     

    D (2) (b)        of the U.A. Act, a plain reading of the provision

     

    indicates that          there is no such obligation       under the said


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:22:-

     

     

    provision. The requirement of notice was read into a similar

     

    provision in the TADA by the two Judges' Bench decision of

     

    the Apex Court in Hitendra Vishnu's case (supra).               But, as

     

    rightly contended by the                learned Addl. Director General of

     

    Prosecution, the interpretation placed by the Apex Court in

     

    Hitendra         Vishnu's case (supra) construing            the  similar

     

    provision in the TADA               has been      whittled down  by the

     

    Constitution Bench in Sanjay Dutt's Case (supra) and it is

     

    now enough if the accused are produced before the Court at

     

    the time of consideration of the Public Prosecutor's report for

     

    extension         of the period of detention and the accused are

     

    informed that the Court is considering the question of extension

     

    of the period of their detention.

     

           9.      Thus, the position which emerges from the above

     

    discussion            is that     after the first remand by the nearest

     

    Magistrate, it is the Court of Session which alone can extend


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:23:-

     

     

    the remand and pass orders under Sec. 43 D (2) (b) of the U.A.

     

    Act extending the period of detention beyond 90 days and up to

     

    180 days in individual cases after considering the report or

     

    reports of the Public Prosecutor. But I hasten to add that this

     

    resultant legal position is due to the combined effect of the U.A.

     

    Act and the N.I.A. Act . Had it not been for the coming into

     

    force of the N.I.A. Act with effect from 31-12-2008, the position

     

    in relation to the offences punishable under the U.A. Act would

     

    have probably been as canvassed by the learned Addl. Director

     

    General of Prosecution.

     

           10.       In the light of what has been discussed above and

     

    taking into account the proceedings                  before the Magistrate

     

    who passed the order dated 30-09-2010 extending the period

     

    of detention          of the      accused        persons, the inescapable

     

    conclusion is that the said proceedings are vitiated due to the

     

    following reasons:-


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:24:-

     

     

              i) The Magistrate had no jurisdiction to pass an order

                  under the first proviso inserted by Sec. 43 D (2) (b)

                  of the U.A. Act. It is only the Sessions               Court

                  concerned which has jurisdiction to pass an order as

                  above.

     

     

              ii) The Assistant Public Prosecutor           in-charge of the

                  Court of the Judicial Magistrate of the First Class,

                  Muvattupuzha had no locus standi to submit a

                  report     under the         aforesaid proviso      seeking

                  extension of the period of detention.           The Public

                  Prosecutor alone is competent          to file a report and

                  that too        before the         Sessions Court having

                  jurisdiction.

     

     

              iii)The accused persons were not produced before the

                  Magistrate on the date on which the order dated

                  30-09-2010 was passed. The non-prosecution of the

                  accused was due to the non-availability of           police

                  escort from the Central Prison, Viyyur in view of

                  the Ayodhya verdict. (Vide the letter dated 21-10-

                  2010 of the Magistrate received in B.A. 5134 of

                  2010). Hence, there was no occasion or possibility

                  for the Magistrate to inform the accused about the

                  consideration of the question of extending the

                  period of their detention beyond 90 days.


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:25:-

     

     

              iv) Separate reports giving the details insisted by the

                  aforesaid proviso were not filed in respect of each

                  and every accused.         The only report filed, and that

                  too, by the       Assistant Public Prosecutor was an

                  omnibus report which did not give the reasons in

                  relation to each and every accused.

     

           11. Since the final report under Section 173 (2) Cr.P.C.

     

    has not been laid before the Magistrate so far and also since

     

    the extension of the period of detention of the accused persons

     

    beyond 90 days was passed by the Magistrate without any

     

    jurisdiction to do so, such of the accused persons who have

     

    completed 90 days             of detention, would have, in the normal

     

    course, been entitled to be released on default bail under the

     

    first proviso to Sec. 167 (2) Cr.P.C. But then, the offences

     

    alleged against            the petitioners       are very grave offences

     

    involving terrorist activity . Not only the investigating agency

     

    but also the Asst. Public Prosecutor, the Advocates appearing

     

    for the accused persons and even the Magistrate were all in

     

    the dark and blissfully ignorant about the impact of the


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:26:-

     

     

    provisions of the N.I.A. Act. The jurisdiction of the Magistrate

     

    to extend the remand of the accused persons was not

     

    questioned         by anybody         at any point of time.    Everybody

     

    proceeded on the footing that              the Magistrate at Muvattupuzha

     

    was the committal Court having jurisdiction to deal with the

     

    case during the crime stage.                Even during the hearing of the

     

    previous batch of           bail applications before the High Court, the

     

    want of jurisdiction of the Magistrate to extend the remand

     

    period of the accused persons in view of the operation of the

     

    N.I.A. Act, was not argued before the High Court. The High

     

    Court also did not notice the true legal position as aforesaid. I

     

    am, therefore, not inclined to straightaway direct the release of

     

    those petitioners who have completed 90 days of detention. I

     

    am of the considered view that the matter has to be dealt with

     

    by the Court of Session, Ernakulam which should be given an

     

    opportunity to consider the necessary report/reports under Sec.

     

    43 D (2) (b) of the U.A. Act to be filed by the Public Prosecutor


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:27:-

     

     

    concerned.         In order to facilitate the Court of Session to deal

     

    with the matter           the J.F.C.M., Muvattupuzha is directed to

     

    transmit all records in Crime No. 704 of 2010 of Muvattupuzha

     

    Police Station to the Sessions Court, Ernakulam              within one

     

    week of receipt of a copy of this common order. The Public

     

    Prosecutor attached to the Sessions Court, Ernakulam shall file

     

    the necessary report/reports under Sec. 43 D (2) (b) of the U.A.

     

    Act before that Court within 10 days of receipt of a copy of

     

    this order.       The Sessions Judge shall, thereupon pass orders

     

    on the said report/reports expeditiously, after causing production

     

    of the accused persons before Court and after informing them

     

    about the consideration by the Court of such report/reports of

     

    the Public Prosecutor.            Until then, the remand of the accused

     

    persons shall be extended                  by the Sessions Judge    for

     

    appropriate periods, unless he finds good reasons for               the

     

    release of        any    of the accused persons.       All requests for

     

    remand extension of any of the accused persons shall hereafter


     

    Bail Application Nos. 5134, 5795, 5824, 5940,

    5950, 6017 and 6186 of 2010

     

                                               -:28:-

     

     

    be made before the Court of Session, Ernakulam.

     

           These Bail Applications are disposed of above.

     

     

     

     

    Dated: 26th October, 2010.                       V. Ramkumar, Judge.

     

     

     

           The High Court Registry shall communicate copies of this

     

    order to the J.F.C.M. Muvattupuzha, Sessions Judge, Ernakulam

     

    and the District Government Pleader and Public Prosecutor,

     

    Ernakulam forthwith for information and compliance.

     

     

     

     

    Dated: 26th October, 2010.                       V. Ramkumar, Judge.

     

     

     

    ani/


     



     
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