All persons involved in cases falling under NIA Act are entitled to urge their grievance before a Bench of two Judges

Google+ Facebook Twitter Email PrintFriendly Addthis

Contents

  1. 1 Section 482 of the Code of Criminal Procedure 
  2. 2 National Investigation Agency Act, 2008
    1. 2.1 Thadiyantevida Nazeer v. State of Kerala [2011(3) KLT 734] 
    2. 2.2 State of A.P. v. Mohd. Hussain [(2014) 1 SCC 258]
      1. 2.2.1 7. Bar to remedy under a particular provision has to be specific. The semblance of a bar to jurisdiction cannot be imported by inference when the requirement is to find whether the superior courts would stand deprived of their inherent power of superintendence, including within the nature of the powers recognised under Section 482 of Cr.P.C. We notice this poignant issue at this point of time only to say that the availability or not, to recourse to Section 482 of Cr.P.C need not always be relevant when access is permissible in the form of an appeal under Sections 21(1) and 21(4) of the NIA Act read together, which is more comprehensive in content. Therefore, when an application for interference under Section 482 is made, in any situation, nonetheless, it has to be heard by a Bench of two Judges, since the relief sought for is akin to what could be granted in an appeal under Section 21 of the NIA Act. This is how sub-section (2) of Section 21 of the NIA Act will have to be meaningfully understood to exclude conflict of decisions in matters relating to orders of NIA Court. In the backdrop of the different provisions of the NIA Act and the Cr.P.C., in the backdrop of the equality and liberty doctrines enshrined in the Constitution of India, we hold that all persons involved in cases falling under the canopy of the NIA Act, even if no NIA Court is constituted, are entitled to urge their grievance before a Bench of two Judges, whatever be the provision they invoke for institution of proceedings. This would also ensure institutional consistency in the judiciary.
      2. 2.2.2 10. The mere fact that the petitioner has not been arrayed as an accused in the final report does not, by itself, turn the situation in favour of the petitioner because permission has been granted for further investigation in terms of Section 173(8). We have also to remember that the prime accused is still at large and stated to be outside India and that too, in Dubai; the destination to which the petitioner wants to go. Adverting to the basic substratum of the allegations that fake Indian currency was imported into India and that such transactions have been classified along with other offences, as falling within the offences punishable in terms of the UAP Act and within the domain of the NIA Act, as well as other penal provisions, we see no ground to interfere with the impugned order. We caution here and now, that the contents of this order shall not prejudice the accused or the investigating and prosecuting agency, at final trial. 
      3. 2.2.3 In the result, these Criminal Miscellaneous Cases are dismissed. 

(2014) 387 KLR 248

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH 

WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936 

Crl.MC.No. 6093 of 2014 (A)

(AGAINST THE ORDER IN CRL.M.P NO.241/2014 IN RC NO.2/2013 NIA/KOC DATED 04.10.2014) 

PETITIONER(S)/12TH ACCUSED:

MAJEED KOLIYAD @ MOHAMMED ABDUL KHADER MAJEED 

BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE 

RESPONDENT(S)/COMPLAINANT AND STATE

NATIONAL INVESTIGATION AGENCY, KOCHI -20. REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031. 

BY SRI.M.AJAY, SPL. PUBLIC PROSECUTOR FOR NIA

ORDER 

Thottathil B. Radhakrishnan, J. 

These petitions under 

Section 482 of the Code of Criminal Procedure 

are by one who is arrayed among the accused persons in four different cases pending before a Special Court, called the "NIA Court" hereinafter, constituted under the provisions of the 

National Investigation Agency Act, 2008

for short, 'NIA Act'. The NIA Court granted him bail in all the cases on the conditions that he shall surrender his Passport and that he shall not leave India. He thereafter sought modification of those two conditions. That was refused by the NIA Court. He filed Crl.M.C. Nos.1272, 1281, 1282, 1283 and 1284 of 2014, challenging that decision of the NIA Court. Those Criminal Miscellaneous Cases were dismissed as per the order dated 30.05.2014. 

2. Thereafter, the petitioner filed applications in the different cases seeking variation of the bail conditions on the plea that the final report placed by the investigator does not inculpate him and has sought leave for further investigation in terms of Section 173(8). He therefore pleaded that he may be permitted to go to Dubai for a period of 15 days. The NIA Court dismissed those applications, also noticing that the prime accused is still outside India and that the petitioner's plea that he would lose his Visa thus stands found against him because his earlier plea as to non-utility of the Visa has already been found against him in the aforenoted earlier proceedings.

3. The petitioner has challenged the aforesaid decision of the NIA Court by filing the captioned Criminal Miscellaneous Cases invoking Section 482 of the Cr.P.C. The learned single Judge noted that, in view of the decision of this Court in 

Thadiyantevida Nazeer v. State of Kerala [2011(3) KLT 734] 

and the aforenoted order dated 30.05.2014 in Crl.M.C. No.1272 and connected cases, these matters have to be heard by the Division Bench. Hence, these matters are before us. 

4. The learned senior counsel appearing for the petitioner argued that an application under Section 482 of the Cr.P.C would lie and the view to the contrary in paragraph 7 of the judgment in Thadiyantevida Nazeer's case (supra) is per incuriam and does not lay down the correct legal proposition. He further argued that what is prohibited is only any appeal or revision, otherwise than by recourse to Section 21 of the NIA Act and therefore, invocation of the inherent jurisdiction of the High Court as recognised and preserved under Section 482 Cr.P.C is not, in any manner, statutorily regulated by the provisions of the NIA Act. On facts, it is pointed out on behalf of the petitioner that he needs to go abroad for 15 days and any stringent conditions, whatsoever, may be imposed on him to ensure his availability for trial. It is submitted that the said request is all the more permissible because the investigation has not been able to find any link to inculpate the petitioner and as of now, the investigating agency has sought for an opportunity for further investigation in terms of Section 173(8) of the Cr.P.C. 

5. Per contra, the learned Special Public Prosecutor appearing for the NIA argued that the specific exclusion of other appellate and revisional remedies by the provisions of Section 21 of the NIA Act, which is a special statute, is a clear indication as to the legislative wisdom that no other mode of access to any superior court is permissible in accordance with law and that, therefore, Section 482 of the Cr.P.C cannot be also invoked. To buttress that argument, he referred to 

State of A.P. v. Mohd. Hussain [(2014) 1 SCC 258]

which categorically held that an offender falling within the terms of the NIA Act and the Unlawful Activities (Prevention) Act, 1967 cannot access the jurisdiction of the High Court in terms of Section 439 or under Section 482 of the Cr.P.C. On facts, it is pointed out that if the petitioner is permitted to leave India, he would have easy access to the other accused persons who are yet to be reached at, and, there is every likelihood of the petitioner interfering and deflecting the investigation.

6. At the outset, we may notice that the learned senior counsel for the petitioner referred to Mohd. Hussain (supra) to argue that the right of appeal is only against an order granting or refusing bail as was understood on a conjoint reading of sub-sections (1) and (4) of Section 21 of the NIA Act as dilated upon in paragraphs 17 and 18 of that judgment. He therefore argued that the question of variation of a condition of the nature in hand or the request for exercise of visitorial jurisdiction under Section 482 of the Cr.P.C does not get precluded by the law laid in that precedent and the impugned order is one which is interlocutory in nature and not one which is an order refusing or granting bail.

7. Bar to remedy under a particular provision has to be specific. The semblance of a bar to jurisdiction cannot be imported by inference when the requirement is to find whether the superior courts would stand deprived of their inherent power of superintendence, including within the nature of the powers recognised under Section 482 of Cr.P.C. We notice this poignant issue at this point of time only to say that the availability or not, to recourse to Section 482 of Cr.P.C need not always be relevant when access is permissible in the form of an appeal under Sections 21(1) and 21(4) of the NIA Act read together, which is more comprehensive in content. Therefore, when an application for interference under Section 482 is made, in any situation, nonetheless, it has to be heard by a Bench of two Judges, since the relief sought for is akin to what could be granted in an appeal under Section 21 of the NIA Act. This is how sub-section (2) of Section 21 of the NIA Act will have to be meaningfully understood to exclude conflict of decisions in matters relating to orders of NIA Court. In the backdrop of the different provisions of the NIA Act and the Cr.P.C., in the backdrop of the equality and liberty doctrines enshrined in the Constitution of India, we hold that all persons involved in cases falling under the canopy of the NIA Act, even if no NIA Court is constituted, are entitled to urge their grievance before a Bench of two Judges, whatever be the provision they invoke for institution of proceedings. This would also ensure institutional consistency in the judiciary.

8. We see that the order dated 30.05.2014 in Crl.M.C. No.1272/2014 and connected cases was handed down holding that there is no error of jurisdiction or illegality committed by the learned Judge of the NIA Court, warranting exercise of the visitorial jurisdiction of the High Court, in terms of Section 482 of Cr.P.C. 

9. The common order impugned in the Criminal Miscellaneous Cases before us shows due application of mind by the learned Judge of the NIA Court on the question as to whether the conditions imposed have to be waived. The learned Judge took note of the fact that the plea of the petitioner that he may lose his Visa if he does not utilise it, had been found against him even in the earlier round.

10. The mere fact that the petitioner has not been arrayed as an accused in the final report does not, by itself, turn the situation in favour of the petitioner because permission has been granted for further investigation in terms of Section 173(8). We have also to remember that the prime accused is still at large and stated to be outside India and that too, in Dubai; the destination to which the petitioner wants to go. Adverting to the basic substratum of the allegations that fake Indian currency was imported into India and that such transactions have been classified along with other offences, as falling within the offences punishable in terms of the UAP Act and within the domain of the NIA Act, as well as other penal provisions, we see no ground to interfere with the impugned order. We caution here and now, that the contents of this order shall not prejudice the accused or the investigating and prosecuting agency, at final trial. 

In the result, these Criminal Miscellaneous Cases are dismissed. 

Sd/-S THOTTATHIL B. RADHAKRISHNAN JUDGE 

Sd/- BABU MATHEW P. JOSEPH JUDGE 

//true copy// P.S. To Judge st/- JUDGE