Syed Azharuddin vs State By Kalasipalya Ps,
2021 Latest Caselaw 1992 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 27TH DAY OF MAY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

        WRIT PETITION NO.13291/2020 (GM-RES)

BETWEEN:

SYED AZHARUDDIN,
S/O SYED SIRAJUDDIN,
AGED ABOUT 37 YEARS,
R/AT 185/1, 9TH MAIN, 1ST STAGE,
2ND BLOCK, HBR LAYOUT,
BENGALURU-560 043.                          ... PETITIONER

            (BY SRI MOHAMMED TAHIR, ADVOCATE)

AND:

STATE BY KALASIPALYA PS,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
OFFICE AT HIGH COURT COMPLEX,
OPP: VIDHANA SOUDHA,
BENALURU-560 001.                       ... RESPONDENT

           (BY SRI V.S. HEGDE, SPP-2 ALONG WITH
                  SRI H.R. SHOWRI, HCGP)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA R/W SECTION 482 OF
CR.P.C PRAYING TO DECLARE THAT CHARGE SHEET OF THE
CASE AT ANNEXURE-C I.E., C.C.NO.7174/2020 PENDING
BEFORE VIII ACMM, BENGALURU, UNDER SECTIONS 120B, 341,
326, 307 R/W 149 OF IPC AND CONSEQUENTLY PROVISION OF
UAPA SECTION HAS NO BEARING AS SAME ARE MERELY
MENTIONED TO DENY THE RELIEF TO THE ACCUSED WITHOUT
FOLLOWING ANY LEGAL PROCEDURE OF LAW.
                                     2


     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                             ORDER

This petition is filed by accused No.7 invoking Articles 226

and 227 of the Constitution of India read with Section 482 of

Cr.P.C. praying this Court to declare that the charge-sheet filed

by the respondent in C.C.No.7174/2020 pending before the VIII

ACMM, Bengaluru for the offences punishable under Sections

120B, 341, 326, 307 read with Section 149 of IPC and

consequently the provisions of the Unlawful Activities

(Prevention) Act, 1967 ('UAPA Act' for short) Section has no

bearing as the same are merely mentioned to deny the relief to

the accused without following any legal procedure of law.

2. The factual matrix of the case is that the police have

registered the case on 22.12.2019 against unknown persons and

investigated the matter and apprehended accused Nos.1 to 6

during the course of investigation. Thereafter, filed the charge-

sheet against the accused persons for the offences punishable

under Sections 120B, 341, 326, 307 read with Section 149 of

IPC. While filing the charge-sheet, this petitioner has been

arraigned as accused No.7.

3. The main allegation against the accused persons in

column No.17 of the charge-sheet is that the accused persons

belong to the prohibited organization which is involved in

criminal activities and they were opposing CAA and NRC. That

on 22.12.2019 when the Hindu organization intended to conduct

the rally in favour of CAA and NRC, these accused persons

conspired with each other at the instance of accused No.7 i.e.,

the petitioner herein in the private office belonging to the

petitioner under the leadership of the petitioner herein to take

away the life of a person belonging to Hindu religion. Accused

Nos.1 to 4 have also conspired with each other at the instance of

this petitioner. On 22.12.2019 accused Nos.2 to 6 conspired

with each other, changed their vehicle number and covered their

faces with helmet in order to commit the murder. Accused

Nos.5 and 6 watched the movement of the complainant near the

Town Hall and all the accused persons have joined together and

chased the complainant and wrongfully restrained him and

assaulted with deadly weapon in order to take the life of the

complainant. As a result, the complainant sustained injuries.

The police while filing the charge-sheet invoked Section 173(8)

of Cr.P.C. to further investigate the matter and sought

permission to file additional charge-sheet stating that the

petitioner and other accused persons have committed the

offence under Sections 13, 16 and 18 of UAPA Act and

investigation has to be continued. Hence, the present petition is

filed before this Court.

4. The main contention of the learned counsel for the

petitioner before this Court is that this petitioner's name has

been arraigned only while filing the charge-sheet and there is no

any material collected against him. The learned counsel would

contend that this petitioner had sought for anticipatory bail and

the same was rejected by the Trial Court and this Court and only

with an intention to defeat the right of the petitioner, UAPA Act

has been invoked. The learned counsel would contend that

under Section 6 of the National Investigation Agency Act, 2008

('NIA Act' for short), only on receipt of the report from the State

Government, the Central Government shall determine on the

basis of information made available by the State Government or

received from other sources, whether the investigation has to be

entrusted to the NIA. No procedure has been followed in order

to invoke the offences under UAPA Act. The learned counsel

would contend that Section 43 of the UAPA Act is clear that the

officers are competent to investigate the offences under

Chapters IV and VI when the Schedule offences are invoked. It

is contended that only the officers are entitled to investigate the

matter and no such order of appointment of Special Officer has

been made. The learned counsel would contend that Section

45(2) of the UAPA Act is also not complied with. The police have

also sought permission to investigate the matter invoking

Sections 13, 16 and 18 of the UAPA Act and the same cannot be

done without any material. The learned Magistrate also failed to

take note of the relevant provisions of both the UAPA Act and

NIA Act and committed an error in granting permission to

conduct further investigation.

5. Per contra, the learned SPP appearing for the

respondent State would contend that the charge-sheet has been

filed for the above offences and while filing the charge-sheet,

permission was sought under Section 173(8) of Cr.P.C. to further

investigate the matter and file the additional charge-sheet. The

order of the learned Magistrate is clear that having satisfied with

the requisition given by the Investigating Officer, permission is

granted to further investigate the matter. The petitioner cannot

find fault with invoking Section 173(8) of Cr.P.C. While seeking

the permission, reasons are set out for further investigation and

only after being satisfied with the grounds urged by the

Investigating Officer, the permission was granted and hence the

petitioner cannot find fault with the order of the learned

Magistrate. The learned counsel would contend that cognizance

was taken on 22.07.2020 having perused the material available

on record.

6. The learned SPP would contend that Section 6 of the

NIA Act only attracts for investigation to be conducted by NIA

and the matter is not referred to NIA and when such being the

case, Section 6 of the NIA does not attract. The learned counsel

would contend that this petitioner is the member of PFI and SDPI

and the same has been revealed during the course of recording

of voluntary statement of the accused persons and it has come

to light that they conspired with each other and conspiracy was

mooted by the petitioner herein. The learned counsel would

contend that Section 15 of the UAPA Act also attracts. It is

contended that all of them conspired with each other and

thereafter changed the vehicle number and moved around where

they intended to conduct the rally and there are sufficient

materials to proceed against them and to file the additional

charge-sheet. The learned counsel would contend that strange

relief has been sought by the petitioner. The judgments which

have been relied upon by the learned counsel for the petitioner

are not applicable to the facts of the case on hand as the same

are delivered while exercising the power under Section 439 of

Cr.P.C. while granting bail in favour of other accused persons.

7. In reply to the arguments of the learned SPP, the

learned counsel for the petitioner would contend that while

rejecting the anticipatory bail, no order has been passed to

surrender before the Trial Court.

8. Having heard the learned counsel for the petitioner

and the learned SPP appearing for the respondent State, the

relief sought in the petition is to declare the charge-sheet filed

by the police and consequently provision of UAPA Act has no

bearing as same are merely mentioned to deny the relief to the

accused without following any legal procedure of law. Having

perused the grounds urged in the petition and the contention of

the learned counsel for the petitioner, the prayer sought is not

specific. In the case on hand, admittedly the FIR was registered

at the first instance invoking the offences punishable under

Sections 143, 147, 148, 307 read with Section 149 of IPC and

case has been registered against unknown persons. The

accused persons have been apprehended and the matter has

been investigated and while filing the charge-sheet, deleted the

offence under Sections 143, 147 and 148 and invoked Sections

120B, 341, 326, 307 read with Section 149 of IPC. It is

important to note that while filing the charge-sheet, the police

have not filed the absolute charge-sheet and sought permission

of the learned Magistrate to grant the permission to further

investigate the matter and to file the additional charge-sheet

invoking Section 173(8) of Cr.P.C. On perusal of the requisition,

no doubt it is mentioned that the accused persons were in

custody and they have to file the charge-sheet within the

prescribed period and they have to collect the additional

documents and they have filed the intermediate charge-sheet.

It is important to note that in the requisition, it is mentioned that

this petitioner is absconding and they have to apprehend him

and they have to collect the evidence against him. It is also

mentioned in the requisition that they also have to collect the

additional evidence against accused Nos.1 to 6 and FSL report is

awaited. It is mentioned in the requisition that the accused

persons belongs to particular organization and they have

conspired with each other before committing the offence and

they have to invoke UAPA Act. Hence, the permission is sought.

9. Having perused the order dated 30.03.2020, the

learned Magistrate having taken note of the requisition and

being satisfied with the grounds urged, permission was granted.

It has to be noted that the charge-sheet is not an absolute

charge-sheet. When some of the accused persons are in custody,

the Investigating Officer has to file the report within the

prescribed period. Mere invoking of UAPA Act for further

investigation will not take away the right of the petitioner. It

has to be noted that the petitioner has approached the Trial

Court as well as this Court seeking anticipatory bail by filing

application under Section 438 of Cr.P.C. and the same has been

rejected. It is also important to note that the petitioner has

been absconding and yet to apprehend him and the Investigating

Officer has to collect the evidence against him. The

Investigating Officer sought for further investigation not only in

respect of the petitioner, but also in respect of other accused

persons and only charge-sheet is filed based on the available

material and sought permission to file the additional charge-

sheet. Hence, I do not find any error committed by the learned

Magistrate in giving permission to further investigate the matter.

Under Section 173(8) of Cr.P.C., permission is granted to further

investigate the matter and file the charge-sheet. It is clear that

while filing the charge-sheet, a prayer is sought by the

Investigating Officer to further investigate the matter.

10. The other contention of the learned counsel for the

petitioner that UAPA Act has been invoked and Section 6 of the

NIA Act has not been complied cannot be accepted at this stage.

It is rightly pointed out by the learned SPP that the matter is not

investigated by NIA and even the matter is not referred to NIA

for investigation. The Investigating Officer himself seeks

permission of the Court to investigate the matter under Section

173(8) of Cr.P.C. Hence, the very contention of the learned

counsel for the petitioner cannot be accepted.

11. The main contention of the Investigating Officer is

that the petitioner belongs to a particular organization and also

relied upon the voluntary statement of the other accused

persons with regard to conspiring with each other prior to

committing of the offence and also relied upon the material with

regard to changing of the vehicle and they were watching around

the place where the rally is organized. Having taken note of the

material available on record and also taking note of the relief

sought in the petition, I am of the opinion that it is not a fit case

to allow the petition and declare that the charge-sheet filed for

the offences invoked against the petitioner and consequently

provision of UAPA Section has no bearing cannot be decided at

this stage. The matter is still pending for further investigation as

envisaged under Section 173(8) of Cr.P.C. Hence, the petitioner

is not entitled for any relief as sought in the petition.

12. The learned counsel for the petitioner relied upon the

orders passed by this Court in Crl.P.No.2275/2020 and

Crl.P.No.1161/2020 c/w Crl.P.No.1384/2020 wherein an

observation is made with regard to no material is collected to

invoke UAPA Act. The said observation is made while exercising

the powers under Section 439 of Cr.P.C. and now the matter is

under further investigation as sought by the Investigating Officer

and hence the said contention also cannot be accepted.

13. In view of the discussions made above, I pass the

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD