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2014 DIGILAW 2652 (MAD)

A. Rajendra Kumar v. Kaja Moideen

2014-08-14

P.N.PRAKASH, S.RAJESWARAN

body2014
Judgment : P.N. Prakash, J. 1. These appeals have been preferred under Section 21(2) of National Investigation Agency Act, 2008 [in short NIA Act] r/w 167(2) Cr.P.C., challenging the orders dated 11.08.2014 in Crl.M.P.Nos.3017 and 3003 of 2014 respectively, passed by the Principal Sessions Court, Tiruvallur. 2. Heard the learned Public Prosecutor for the State/appellant Mr.M.Radhakrishnan and Mr.Pugazhendhi, Advocates for the respondents/accused. 3. On 18.07.2014, one Suresh Kumar, a Hindu activist was done to death by three persons, for which, a case in T2 Ambattur Estate Police Station Cr.No.746/2014 under Sections 341, 307 and 302 IPC was registered by the police. During the course of investigation, the police arrested Kaja Mohideen, the respondent in Crl.A.No.429/2014 and produced him before the jurisdictional Magistrate, who remanded him to judicial custody on 20.07.2014. During the course of investigation, it came to light that the murder of Suresh Kumar was not a mere isolated incident, but the result of a deep-rooted conspiracy to get rid of Hindu activists not only in Tamil Nadu, but in other places. Therefore, on 26.07.2014, the police filed an alteration report before the jurisdictional Magistrate seeking to alter the case in Ambattur Police Station Cr.No.746/2014 to 341, 307, 302 r/w 153(A) and 120(B) IPC. From the confession statements of the arrested accused and from the examination of further witnesses, it came to light that offences u/s 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 would also stand attracted, as it appeared to the police that, the group was involved in graver offences. Therefore, the police included the provisions of Unlawful Activities (Prevention) Act, 1967 and sent the alteration report to the Court. On addition of these offences, the provisions of NIA Act stood attracted and therefore, the police had to approach the District and Sessions Judge, Tiruvallur for taking police custody of the respondent/Kaja Moideen from 07.08.2014 for a period of 15 days. The District and Sessions Judge, by order dated 07.08.2014 granted police custody for 4 days, from 07.08.2014 to 11.08.2014, and accordingly, the police took the respondent/ Kaja Moideen into their custody and continued with the investigation. The police arrested six other accused, viz., the respondents in Crl.A.No.430/2014 and produced them before the District and Sessions Judge, Tiruvallur for remand on 07.08.2014. The police arrested six other accused, viz., the respondents in Crl.A.No.430/2014 and produced them before the District and Sessions Judge, Tiruvallur for remand on 07.08.2014. The police also made an application before the learned Judge seeking police custody of the six persons for a period of 15 days from 07.08.2014. While this application was under consideration, the police also filed an application on 11.08.2014 seeking further police custody of the respondent/Kaja Moideen for a period of 5 days. The learned Principal District and Sessions Judge, Tiruvallur dismissed both the applications on 11.08.2014, aggrieved by which, the State has approached this Court in these appeals. 4. At the outset, Mr.M.Radhakrishnan, learned counsel appearing for the accused in both the appeals submitted that, these appeals before the Division Bench are not maintainable and the matters should go before a single Judge, since the order has been passed by the Sessions Court and not by the Special Court constituted under the NIA Act. 5. We reject this argument in view of Section 22(3) of the NIA Act which states that, until a Special Court is constituted by the State Government, the powers shall be exercised by the Court of Sessions of the division in which such offence has been committed. 6. The leaned Public Prosecutor submitted that the Government Order constituting the Special Court suffered from certain infirmities and therefore, it is under review by the Government. Be that as it may, we find that when the Sessions Court rejected the request of the police for police custody by the impugned orders, the learned counsel for the accused who appeared before him, did not protest on the ground that the Sessions Court did not have the jurisdiction. Of course we are aware that, by consent of parties jurisdiction cannot be conferred and we are referring to this only to show the conduct of the parties and nothing more. 7. Section 22(3) of the NIA Act clearly states that the powers of the Special Court shall be exercised by the Sessions Court of the division in which such offence was committed and in this case, the offence was committed within the sessions division of Tiruvallur and in the absence of a Special Court, the District and Sessions Court, Tiruvallur, has the jurisdiction. The provisions of NIA Act would stand attracted in this case, since the accused is alleged to have been involved in offences under the Unlawful Activities (Prevention) Act, 1967, which finds place as item 2 in the schedule of the NIA Act. Under Section 21(2) of the NIA Act, every appeal against the order of a Special Court shall be heard by a bench of two Judges of the High Court. 8. It was further submitted that police custody can be given only during the first 15 days of initial remand and not thereafter, as held in CBI vs. Anupam Kulkarni [ 1992 (3) SCC 141 ]. Section 43D sub Section 2 of the Unlawful Activities (Prevention) Act, 1967, reads as under: "43D. Modified application of certain provisions of the Code. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2).- (a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively". 9. By virtue of this provision, the expression 15 days' used in Section 167 Cr.P.C. should be construed as 30 days and therefore, the police can seek custody within 30 days from the date of initial remand. In both these cases, this test is satisfied. 10. Coming to the reasons for denying police custody, we find that the learned Sessions Judge had failed to consider the magnitude of the case under investigation. We went through the case diary and also the affidavit sworn to by the Investigating Officer seeking police custody. As regards the respondent/Kaja Moideen, the learned Judge has refused police custody on the ground that, earlier 5 days custody was granted to the police. The Investigating Officer in his affidavit has stated that he is seeking police custody of Kaja Moideen, because the police have arrested six others and joint interrogation of all of them is essential. We find force in this reason given by the Investigating Officer. 11. As regards the respondents in Crl.A.No.430/2014, the learned Judge has held that they were unwilling to go into police custody as they showed some injuries on their person. We find force in this reason given by the Investigating Officer. 11. As regards the respondents in Crl.A.No.430/2014, the learned Judge has held that they were unwilling to go into police custody as they showed some injuries on their person. On a careful scrutiny of the records, these six persons were arrested by the police on 06.08.2014 and they were produced before learned Judge on 07.08.2014 and were sent to judicial custody. The learned Judge has noted in his order that these accused did not make any complaint against the police when they were questioned. On 07.08.2014 itself the police had filed the application seeking police custody. Only after they were sent to jail the report by the Civil Assistant Surgeon to the Central Prison Hospital was obtained, wherein one or two accused seem to have been having some injuries. These injuries were not there at the time of remand on 07.08.2014. 12. We may incidentally quote the observation of the Supreme Court in the State rep. by the CBI vs. Anil Sharma [1997 SCC (Cri) 1039]: "6. ..... The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 13. We are unable to understand as to why the Sessions Judge kept the application for police custody pending from 07.08.2014 to 11.08.2014, because in a case of such magnitude, public interest requires that the hands of the police is not shackled in the guise of judicial activism lest that would do more harm to the society than good to the individuals. 14. On a reading the case diary we found that, what started of as a innocuous murder case is snowballing into a transnational ideological warfare, wherein misguided youth are being recruited throughout the Country for Jihad by forces inimical to India. What has been unearthed is only the tip of the iceberg and we do not want to disclose the appalling facts found in the case diary maintained u/s 172 Cr.P.C. 15. What has been unearthed is only the tip of the iceberg and we do not want to disclose the appalling facts found in the case diary maintained u/s 172 Cr.P.C. 15. Suffice to use the expression of the Supreme Court in Assistant Director, Directorate of Enforcement vs. Hassan Ali Khan [2011 (4) Scale 53], wherein, the Supreme Court, while setting aside the order of the Special Court refusing police remand of Hassan Ali Khan and granting police custody has stated: "5. An extraordinary situation requires an equally effective and extraordinary solution. It is for that reason we propose to interfere with the order even at this stage." 16. In our view, the case in hand is one such case and therefore, we have no hesitation in holding that the orders passed by the learned Sessions Judge deserves to be set aside and accordingly they are set aside. The appeals are allowed. 17. Kaja Moideen, the respondent in Crl.A.No.429/2014 is directed to be sent to police custody for 5 days from 14.08.2014 to 18.08.2014. The respondents in Crl.A.No.430/2014 are directed to be sent to police custody for 10 days from 14.08.2014 to 23.08.2014. On their completion of the said period, they shall be produced before the Principal Sessions Judge, Thiruvallur for sending them back to judicial custody. If further police custody of the six accused is sought by the police, the Sessions Judge shall dispassionately consider the same by keeping in mind the public interest at large and accordingly pass orders.