Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 865 OF 2019
(Arising out of SLP(Crl.) No(s). 9595 of 2018)
UNION OF INDIA …..Appellant(s)
VERSUS
MUBARAK @ MUHAMMED MUBARAK …..Respondent(s)
J U D G M E N T
Rastogi, J.
Leave granted.
2. The instant appeal has been filed against the judgment
th
dated 12 September, 2018 passed by the High Court of
Judicature at Madras granting bail in default to the
accused/respondent after setting aside order of the Special Court
(under National Investigation Agency Act, 2008), Chennai dated
Signature Not Verified
nd
22 March, 2018
Digitally signed by
DEEPAK SINGH
Date: 2019.05.07
14:44:14 IST
Reason:
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holding that the remand of the accused/respondent by the
Special Court for a further period of 90 days was not in
compliance to the mandate of Section 43D(2)(b) of Unlawful
Activities(Prevention) Act, 1967(hereinafter being referred to as
“UAP Act, 1967”).
3. The facts giving rise to this appeal insofar as they are
relevant for disposal are that a case was initially registered at
Police Station Thudialur in Cr. No. 735/2016 on the written
complaint of one Dhanapal, brother of the deceased(Sasikumar)
who was a spokesperson of Hindu Front at Coimbatore, was
nd
brutally hacked to death by a gang of unknown persons on 22
September, 2016 at about 2315 hrs. Due to the above murder,
violence broke out in Coimbatore when the body of the deceased
was taken for cremation. As the violence spread out to
neighbouring directions of Tirupur, viz., Nilgiris and Erode, about
237 cases came to be registered in respect of the incidence of
stone pelting, hurling of petrol bomb on Mosque, setting fire to
shops, attack on police vehicles and buses, attack on shops
belonging to different sect of the society. For days together, the
harmony, public peace and tranquillity got affected. DGP, Tamil
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Nadu, considering the gravity of the offence transferred the case
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to (Special Investigation Division) CB CID, Coimbatore on 27
September, 2016. During the course of investigation, an
alteration report was filed by SID CB CID to invoke Section 120B
and Section 153A IPC and Section 16 and 18 of UAP Act, 1967.
4. The Central Government in exercise of the powers conferred
under Section 6 read with Section 8 of the NIA Act entrusted the
investigation to the National Investigation Agency vide order
nd
dated 22 January, 2018. The case was taken over by the NIA
as R.C. No. 03/2018/NIA/DLI under Section 302, 153A, 120B of
IPC read with Section 16 and 18 of the UAP Act, 1967 vide order
th
dated 29 January, 2018. During the course of investigation,
four accused persons were arrested out of which the accused
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respondent(A4) was arrested on 25 December, 2017.
5. A report under Section 43(D)(2) of the UAP Act, 1967 was
submitted by the Special Public Prosecutor before the Special
Court under NIA assigning specific reasons for seeking extension
of judicial detention of the accused respondent for a further
period of 90 days enabling him to complete the investigation. A
counter statement was filed by the accused respondent on the
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same date opposing the application filed by the Special Public
Prosecutor through his counsel. The Special Court(NIA) after
hearing the parties recorded its satisfaction for detention of the
accused respondent for a further period of 90 days and allowed
the petition filed by the Special Public Prosecutor under its order
nd
dated 22 March, 2018 which was the subject matter of
challenge in appeal preferred at the instance of the accused
respondent under Section 21 of the NIA Act before the High Court
of Madras, which on appraisal of the record, arrived at the
conclusion that the specific reasons which has been assigned by
the Special Public Prosecutor in his report seeking detention of
the respondent for a further period of 90 days does not meet the
requirement of law as contemplated under Section 43D(2)(b) of
the UAP Act, 1967 and accordingly set aside the order of the
nd
Special Court dated 22 March, 2018 and in consequence
thereof, granted statutory bail in default to the accused
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respondent under its order dated 12 September, 2018 which is
a subject mater of challenge in appeal before us.
6. It may be relevant to note at this stage that the other three
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accused persons, namely, Syed Abuthair(A1) arrested on 22
4
th
March, 2017 was granted statutory bail on 19 June, 2017;
st
Sadham Hussain(A2) arrested on 1 August, 2017 was granted
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statutory bail on 1 November, 2017 and Subair(A3) arrested on
th th
11 October, 2017 was granted regular bail on 12 October,
2018 on merits. It has been informed to this Court that
later chargesheet was filed against all the accused(A1 to A4) on
th st
7 April, 2018/21 June, 2018 and it is pending for framing of
charge under Section 228 of Code of Criminal Procedure, 1973.
7. Learned counsel for the appellant submits that Paras
8,9,10, 12, 13, 14, 15 & 16 of the report of Special Public
Prosecutor indicate specific reasons like need for further NIA
custody of the accused as envisaged in Section 43D(2) of the UAP
Act, 1967, to verify the facts revealed through experts and for
unravelling the conspiracy in the case for the detention of the
accused respondent beyond the said period of 90 days and once
the satisfaction was recorded by the learned Judge of Special
Court meeting out the requirements envisaged under Section
43D(2) of the UAP Act, 1967, the satisfaction so recorded after
perusal of the record could not have been overturned by the High
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Court unless very strong reasons are forthcoming, which has not
been pointed out under the impugned judgment.
8. Per contra, while supporting the order of the High Court,
learned counsel for the respondent submits that though the
reasons have been assigned by the Special Public Prosecutor in
his report which may be relevant for further investigation, but are
not relevant to justify for further detention of the accused
respondent beyond the period of 90 days and that being the
mandate of law as envisaged in Section 43D(2)(b) of the UAP Act,
1967, no error was committed by the High Court in setting aside
the order of the Special Court under the impugned judgment.
9. Learned counsel for the respondent in alternate further
submits that the detention of the accused respondent might have
been necessary at the relevant point of time for further progress
of the investigation but the fact situation has later changed and
when the chargesheet has been filed in the instant case against
all the four accused persons and accused no. 1 and accused no.
2 were granted bail in default and accused no. 3 was granted
regular bail on merits by the competent Court of jurisdiction and
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in either of the order of bail granted to the accused nos. 1 to 3,
prosecution has not filed any application for cancellation and the
present accused respondent is also on bail, may be in compliance
of the judgment impugned and when it is not the case of the
appellant that after statutory bail being granted to him in
th
compliance of the impugned judgment dated 12 September,
2018, he has committed any breach or violated the conditions of
the bail granted to him. At least, in the given facts and
circumstances, even if there may be some merit in the
submission made by the appellant, at least the statutory bail
which was granted to the accused respondent in the changed
circumstances, may not be interfered with by this Court.
10. It is not disputed that in the instant case that the accused
th
respondent was arrested on 25 December, 2017 and initial
th
period of 90 days was to expire on 24 March, 2018 and prior
nd
thereto on 22 March, 2018, the report was submitted by the
Special Public Prosecutor assigning specific reasons for extension
of remand of the accused respondent for a further period of 90
days under Section 43D(2)(b) of UAP Act, 1967 and after a copy
of application was supplied to the accused respondent, he filed
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his written objections through counsel and after affording
opportunity of hearing to the parties, the Special Court, after
recording its satisfaction, in reference to the specific reasons
assigned for detention of the accused respondent for a further
period of 90 days allowed the application filed by the Special
nd
Public Prosecutor vide its order dated 22 March, 2018.
11. The extract of the report submitted by the Public Prosecutor
indicating the progress of the investigation and the specific
reasons required for detention of the accused respondent for a
further period of 90 days as envisaged under Section 43D of the
UAP Act are stated as under:
8. It is further submitted that, during the course of
investigation more than 350 witnesses have been
examined, more than 250 suspects were interrogated,
more than 2500 Call Data Records were obtained, 25
Tower Dump data were collected, and more than 50
CCTV footages from the path travelled by the deceased
were collected. The collected data and CCTV footages
are huge volumes and the analyzing of all the above is
under active process for the purpose of investigation.
9. It is further submitted that in pursuance of warrant
issued by this Hon’ble Court vide dated 16.03.2018,
search for evidence at the residences of accused who
were involved in this case has been conducted on
18.03.2018. During the search conducted by NIA,
huge amount of incriminating articles such as mobile
phones, DVDs/CDs, Memory Cards/SD cards and
documents etc. have been seized for the purpose of
investigation and the same was produced before this
Hon’ble Court for safe custody without delay.
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10.It is further submitted that the seized incriminating
electronic gadgets such as mobile phones, DVDs/CDs,
Memory Cards/SD cards and Hard Discs containing
CCTV footages has been forwarded to the Director,
CDAC, Thiruvananthapuram for examination/ analysis
through this Hon’ble Court on the request of CIO and
the same needs to be analysed by the experts of C
DAC, Thiruvananthapuram. The report is yet to be
received. The accused persons may be required for
further police custody from judicial custody for the
purpose of investigation as envisaged in Section 43 D
(2) (b) of UA(P) Act 1967 to verify any facts obtained
from the forensic experts.
11. xxxx
12.It is further submitted that the NIA is conducting
investigation on the social media and email
communication used by the accused and associates
and the process of sending requests to the United
States of America (USA) under Mutual Legal Assistance
Treaty (MLAT) between Republic of India and USA to
get the details of social media accounts and
communications between accused and their associates
in India and abroad is under progress.
13.It is further submitted that, the
confessions/interrogation of accused Syed Abu Thahir
(A1), Sadham @ Sadham Hussain (A2), Subair (A3)
and Mubarak (A4) reveals that after committing the
occurrence, they have moved to Karnataka, Andhra
Pradesh and Telangana and have concealed themselves
from the clutches of law. It is suspected that they
would have got assistance and shelter from some
organization which should be brought out further.
Further one more vehicle involved in this crime is yet
to be recovered.
14.The witnesses in this case are at high risk of being
eliminated since they have come forward to speak the
truth. The agency wishes to secure an order of
protection under Section 17 of the NIA Act, 2008 for
which an application will be filed in the near future.
The NIA also wishes to complete the investigation
without any wastage of time. However, the completion
of investigation requires at least three months owing to
the large amount of evidence to be collected and also
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the spread of evidence between 5 states namely Kerala,
Tamil Nadu, Andhra Pradesh, Karnataka and
Telangana.
15.It is further submitted that, the NIA as an
investigating force, is required to take steps to unravel
the larger conspiracy including the clandestine terror
activities of the accused, their association with other
organizations, their possible locations in India and
abroad and the sources of funding etc. Besides,
requisitions were sent to the concerned service
providers to get the CDR’s of all the mobile phones
recovered and the other numbers used by the accused
with a view to analyze the same for establishing the
linkages between the accused/suspects and field
verification needs to be done. It is not possible to
complete the investigation within the said period of
ninety days.
16.It is further submitted that the investigation is
proceeding in the right direction. Since the accused
are hardcore ideologists, detailed further interrogation
is inevitable to collect more evidence and for
unravelling the larger conspiracy behind the crime.
There may be imminent threat to the security of the
nation if the accused are not interrogated in detail,
more evidence is not collected and detailed
investigation is not done to identify and secure other
members of the group.
12. Before we proceed to examine the question raised in the
instant appeal any further, it may be apposite to take note of
Section 43D(2)(b) of the UAP Act, 1967:
“43D. Modified application of certain provisions of the
Code.
(1) xxx
(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 subsection (2),
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(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; and
(b) after the proviso, the following provisos
shall be inserted, namely:
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:
Provided also that if the police officer making the
investigation under this Act, requests, for the purposes
of investigation, for police custody from judicial
custody of any person in judicial custody, he shall file
an affidavit stating the reasons for doing so and shall
also explain the delay, if any, for requesting such
police custody.”
13. The necessary ingredients of the proviso to Section 43D(2)(b)
of the UAP Act, 1967 has to be fulfilled for its proper application.
These are as under:
A. It has not been possible to complete the investigation
within the period of 90 days.
B. A report to be submitted by the Public Prosecutor.
C. Said report indicating the progress of investigation and
the specific reasons for detention of the accused beyond
the period of 90 days.
D. Satisfaction of the Court in respect of the report of the
Public Prosecutor.
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14. The scope of Section 43D(2)(b) of UAP Act, 1967 has been
examined recently by a three Judge Bench of this Court in State
2019
of Maharashtra Vs. Surendra Pundlik Gadling & Ors.
SCC Online SC 188 and has not detained us any further.
15. Taking note of the specific reasons which has been assigned
by the Special Public Prosecutor in his report of which reference
has been made(supra), we are satisfied that the specific reasons
assigned by the Public Prosecutor fulfil the mandate and
requirement of Section 43D(2)(b) of the UAP Act, 1967 and that
was considered by the Special Court in detail who after recording
its satisfaction, granted detention of the accused respondent for a
nd
further period of 90 days under its Order dated 22 March,
2018.
16. We cannot be oblivious of the changed circumstances which
has been brought to our notice regarding the FIR (Cr. No.
735/2016) registered at Thudialur Police Station, Coimbatore for
nd
the incident of 22 September, 2016. Chargesheet has been
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filed against all the four accused persons(A1 to A4) including
th st
the accused respondent on 7 April, 2018/21 June, 2018 and
th
all the accused nos. 1, 2 and 3 are on bail from 19 June, 2017,
st th
1 November, 2017 and 12 October, 2018 respectively and the
matter is pending for framing of charge and it is not the case of
the appellant that the present accused respondent after being
enlarged on bail in compliance of the impugned judgment dated
th
12 September, 2018 has committed any breach or violated the
conditions of grant of bail.
17. To conclude, we are not in agreement with the conclusions
arrived at by the High Court in the impugned judgment dated
th
12 September, 2018 but taking note of the later developments
and the supporting facts brought to our notice, we are not
inclined to interfere with the final relief to the extent of granting
default bail to the accused respondent in the circumstances of
the case on hand. However, it may be open for the prosecution to
apply for cancellation of bail, if any exigency arises in future. We
consider it further to direct the learned Presiding Officer of the
Special Court, NIA, to expedite and conclude the trial on or before
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March, 2020. Compliance report be sent to the Registry of this
Court.
18. Consequently, the appeal is disposed of in the above terms.
…………………………J.
(A.M. KHANWILKAR)
…………………………J.
(AJAY RASTOGI)
NEW DELHI
May 07, 2019
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