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2019 DIGILAW 1006 (GAU)

Jai Kishan Sharma v. Union of India

2019-09-06

M.R.PATHAK, SANJAY KUMAR MEDHI

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ORDER : M.R. Pathak, J. 1. Heard Mr. Kamal Agarwal, learned Senior Advocate assisted by Mr. Devojit Goswami, learned counsel for the appellant. Also heard Mr. J.A. Hassan, learned Senior Public Prosecutor for the respondent National Investigating Agency (NIA). 2. The appellant, namely, Sri Jai Kishan Sharma, was apprehended by the Special Operation Team, Dimapur on 20.08.2019 in connection with East Dimapur Police Station Case No. 0204/2019, corresponding to GR. No. 638/2019 along with three other accused persons under Sections 384/34 IPC read with Section 7 of the NSR Act. The Court of learned Chief Judicial Magistrate, Dimapur, Nagaland by order dated 22.08.2019, remanded the four accused persons, including the present appellant to judicial custody for a period of 15 days w.e.f. 22.08.2019 to 06.09.2019 in said GR. No. 638/2019. 3. The Deputy Superintendent of Police, NIA on 22.08.2019, filed an application before the learned CJM, Dimapur, Nagaland in its Case No. RC-03/2019/NIA/GUW registered under Sections 302/307/34 of IPC read with Section 25 (IB)(a)/27 of the Arms Act, read with Sections 10/13 of the Unlawful Assembly (Prevention), Act arising out of Khonsa Police Station (Arunachal Pradesh) Case No. 28/2019 seeking arrest of said accused Jai Kishan Sharma and also prayed for five days transit remand of the said accused so as to produce him before the concerned Special NIA Court at Yupia, Arunachal Pradesh for the interest and purpose of necessary investigation of aforesaid NIA case. It is to be noted herein that said NIA case relates to ambush on Sh. Tirong Abo, MLA of Arunachal Pradesh and others. 4. The contentions of the NIA before the learned CJM, Dimapur, Nagaland were that there are sufficient evidence with them regarding involvement of the said accused/appellant in the said NIA case and his custodial examination is urgently required for investigation of the said case of national importance. The CJM, Dimapur, Nagaland, by two separate orders dated 22.08.2019, passed in said NIA Case No. RC-03/2019/NIA/GUW allowed the NIA authority to arrest the accused/appellant and also issued his transit remand as well as for his production warrant directing the concerned I.O. of the said NIA case to produce the said accused before Special NIA Court at Yupia, Arunachal Pradesh. 5. 5. After his said remand order, passed by the CJM, Dimapur on 22.08.2019, the respondent NIA on 24.08.2019 produced the appellant before the Special Judge, West Sessions Division, Yupia, Arunachal Pradesh in said NIA Case No. RC-03/2019/NIA-GUW-IN Khonsa FIR No. 28/2019 with an application to remand him to judicial custody for a period of 12 days. Considering the seriousness of offence alleged to have been committed and in absence of any bail application on his behalf, by order dated 24.08.2019, the said Special Court, Yupia directed for judicial remand of the appellant for a period of 10 days directing the respondent NIA to produce him again on 03.09.2019 for order, with further direction that the respondent NIA shall do the needful to get the appellant examined by the Doctor, before he is handed over to judicial custody. 6. On 29.08.2019 respondent NIA filed an application before the Special Court, Yupia, seeking 12 days police custody of the appellant along with other arrested accused persons in the aforesaid NIA case in the interest of its investigation. 7. Considering that the appellant and the other arrested accused are yet to be interrogated by the respondent NIA and finding the seriousness of the office alleged to have been committed by them and for the interest of investigation of the case, the Special Court, Yupia, by its order dated 29.08.2019, passed in said NIA case, remanded the appellant with others to the custody of NIA for a period of 10 days, directing the NIA authority to produce them before the Court on 09.09.2019 for further order. 8. Being aggrieved with aforesaid two orders dated 24.08.2019 and 29.08.2019 passed by learned Special Judge, West Sessions Division, Yupia, Arunachal Pradesh in said NIA Case No. RC-03/2019/NIA-GUW-IN-Khonsa FIR No. 28/2019, the appellant on 03.09.2019 has preferred this appeal under Section 21 of the National Investigation Agency Act, 2008 praying for setting aside and quash those two orders. 9. The contention of the appellant, amongst others, is that the respondent NIA, except its application dated 29.08.2019, did not place any material before the Special Court, enabling it to come to the conclusion that there are reasons to believe that being in the custody of NIA, it could obtain some material and valuable information from him with regard to said NIA case. It is also submitted that both the impugned orders are not in conformity with the provisions of Section 167 (1) of the Code of Criminal Procedure. 10. However, Mr. Hassan learned Sr. Public Prosecutor for NIA, raised the question of maintainability of this appeal stating that both the impugned orders dated 24.08.2019 and 29.08.2019 passed by learned Special Judge, West Sessions Division, Yupia are interlocutory orders, which have already been acted upon. 11. At this stage, relying on the judgment passed by a Bench of three Judges of the Hon'ble Supreme Court in the case of Madhu Limaye Vs. The State of Maharashtra, reported in (1977) 4 SCC 551 , Mr. Agarwal learned Senior counsel for the appellant stated that both the impugned orders though interlocutory orders, but appeal shall be maintainable under the provisions of the NIA Act, 2008. 12. In support of his submission, Mr. Hassan, learned Sr. Public Prosecutor for NIA, placed the Judgment of Hon'ble Apex Court in the case of State represented by Inspector of Police & Ors. Vs. N.M.T. Joy Immaculate, reported in (2004) 5 SCC 729 that was passed by another three Judges Bench, wherein after differentiating the observation made in the case of Madhu Limaye (supra), it is held that an order passed by a Magistrate under the provisions of Code of Criminal Procedure, granting police remand of an accused is an interlocutory order. 13. We have heard the submission of the counsels of both the parties and also considered the judgments cited by them. 14. Their Lordships in the case of State & Ors. Vs. N.M.T. Joy Immaculate (supra), referring the observation made in the case of Madhu Limaye (supra), have observed as follows: "12. Same question has recently been considered in K.K. Patel Vs. State of Gujarat (2000) 6 SCC 195 . In this case a criminal complaint was filed against the Superintendent of Police and Deputy Superintendent of Police alleging commission of several offences under the Indian Penal Code and also under Section 147G of the Bombay Police Act. The Metropolitan Magistrate took cognizance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate took cognizance of the offence and issued process to the accused, who on appearance filed a petition for discharge on the ground that no sanction as contemplated by Section 197 CrPC had been obtained. The Metropolitan Magistrate dismissed the petition against which a revision was filed before the Sessions Judge, who allowed the same on the objection raised by the accused based upon Section 197 CrPC and also Section 161(1) of the Bombay Police Act, which creates a bar of limitation of one year. The revision preferred by the complainant against the order of discharge was allowed by the High Court on the ground that the order passed by the Metropolitan Magistrate rejecting the prayer of the accused to discharge them was an interlocutory order. In the appeal preferred by the accused, this Court after referring to Amar Nath Vs. State of Haryana [ (1977)4 SCC 137 ], Madhu Limaye Vs. State of Maharashtra [ (1977) 4 SCC 551 ] and V.C. Shukla Vs. State [1980 Supp SCC 92] held that in deciding whether an order challenged is interlocutory or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. It was further held that as in the facts of the case, if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable. 13. Section 167 CrPC empowers a Judicial Magistrate to authorise the detention of an accused in the custody of police. Section 209 CrPC confers power upon a Magistrate to remand an accused to custody until the case has been committed to the Court of Session and also until the conclusion of the trial. Section 309 CrPC confers power upon a court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. Section 309 CrPC confers power upon a court to remand an accused to custody after taking cognizance of an offence or during commencement of trial when it finds it necessary to adjourn the enquiry or trial. The order of remand has no bearing on the proceedings of the trial itself nor can it have any effect on the ultimate decision of the case. If an order of remand is found to be illegal, it cannot result in acquittal of the accused or in termination of proceedings. A remand order cannot affect the progress of the trial or its decision in any manner. Therefore, applying the test laid down in Madhu Limaye case [ (1977) 4 SCC 551 ] it cannot be categorised even as an "intermediate order". The order is, therefore, a pure and simple interlocutory order and in view of the bar created by sub-section (2) of Section 397 CrPC, a revision against the said order is not maintainable. The High Court, therefore, erred in entertaining the revision against the order dated 06.11.2001 of the Metropolitan Magistrate granting police custody of the accused Joy Immaculate for one day." 15. In the Judgment of N.M.T. Joy Immaculate (supra), their lordships have also held that - as the concerned Magistrate in exercise of the powers conferred upon him by Section 167 of the Code of Criminal Procedure, by order dated 06.11.2001, had granted police remand of the accused of the case and that the said accused was already given in police custody on the same day, therefore, the said order (dated 06.11.2001) had exhausted itself as the police custody was actually given. 16. In the case in hand, the Special Court, Yupia by order dated 24.08.2019 directed judicial remand of the appellant for a period of 10 days, directing the respondent NIA to produce him again on 3.9.2019 and pursuant to the same, the appellant was already sent for judicial custody on 24.08.2019 itself. 17. Similarly, in pursuance of the order dated 29.08.2019, passed by learned Special Court, Yupia, the custody of appellant was already given to the respondent NIA on the same day. Therefore, both the impugned orders dated 24.08.2019 and 29.08.2019 had exhausted itself. 18. Further, we are of the opinion that both the impugned orders dated 24.08.2019 and 29.08.2019 passed by learned Special Judge, Yupia are interlocutory orders. 19. Therefore, both the impugned orders dated 24.08.2019 and 29.08.2019 had exhausted itself. 18. Further, we are of the opinion that both the impugned orders dated 24.08.2019 and 29.08.2019 passed by learned Special Judge, Yupia are interlocutory orders. 19. For the reasons above and following the decision of the Hon'ble Supreme Court in the case of N.M.T. Joy Immaculate (supra), we are of the view that both the impugned orders dated 24.08.2019 and 29.08.2019 passed by learned Special Judge, West Sessions Division, Yupia, Arunachal Pradesh in the NIA Case No. RC-03/2019/NIA-GUW-IN-Khonsa FIR No. 28/2019, being interlocutory in nature and otherwise exhausted, this appeal by the appellant under Section 21 of the NIA Act, 2008 against those two orders, is not maintainable. 20. Accordingly, this appeal, being not maintainable, stands dismissed.