Nasir Pasha vs State By K G Halli Police Station
2023 Latest Caselaw 843 Kant

                             1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2023

                            BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

        WRIT PETITION NO.26161 OF 2022 (GM-RES)

BETWEEN

1.   NASIR PASHA
     S/O LATE MOHAMMAED HASHAM
     AGED 42 YEARS
     R/AT NO 519, 11TH CROSS
     PILLANNA GARDEN
     3RD STAGE, K G HALLI
     BANGALORE 560045

2.   MANSOOR AHMED
     S/O HASSAIN SAB
     AGED 47 YEARS
     R/AT NO 615, 9TH CROSS
     5TH BLOCK, 1ST STAGE,
     HBR LAYOUT
     BANGLAORE 560043

3.   SHEIKH EZAJ ALI
     S/O SHAIKH SADIQ ALI
     AGED 49 YEARS
     R/AT NO 5-993/61/D
     MAHABOOB NAGAR
     TIPPU SULTAN CHOWK
     RING ROAD
     KALABURGI 585103

4.   MOHAMMED KALIMULLA
     S/O M AMEER JAN
     AGED 57 YEARS
     R/AT NO 244, 8TH CROSS
     BEHIND AMMAR MASJID
                          2


     SHANTINAGAR
     MYSORE 570019

5.   MOHAMMED ASHRAF ANKAJAL ALIAS AKBAR
     ALAIS BAMBILA MOHAMMED ASHRAF
     AGED 43 YEARS
     R/AT NO 607
     CLASSIC HARMONY APARTMENT
     BALIKA ASHRAM ROAD
     KANKANADI
     MANGALURU 575002

6.   ABDUL KHADER PUTTUR
     S/O LATE ISMAIL
     AGED 56 YEARS
     R/AT NO 9/228/A
     LOWER BAZAR HOUSE
     NEAR TOUHID SCHOOL
     BANTWALA
     DAKSHINA KANNADA 574211

7.   MOHAMMED THFSEER
     ALIS MOHAMMED THAPSEER
     S/O MAIDU KUTTI
     AGED 32 YEARS
     R/AT KARINGANA HOUSE
     KARINGANA POST
     NEAR KARINGANA KATTE
     BANTWALA TALUK
     DAKSHINA KANNADA 574222

8.   MOHIYUDDIN ALIS MOHIHYDDIN HALEYANGADY
     S/O LATE MOHAMMED
     AGED 42 YEARS
     R/AT MEGINA BASADI
     NEAR HALEYANGADI
     JUMMA MASJID
     AND KADIKE GENERAL STORE
     HALEYANGADY VILLAGE
     (MULKI PS LIMITS)
     MANGAURU 574146
                           3


9.   NAWAZ KAVOOR
     S/O HAMMABBA
     AGED 38 YEARS
     R/AT NO 2-117/23
     MM COMPOUND
     NEAR RAM BHAJANA MANDIRA
     AL FAROOQ MASJID ROAD
     SHANTINAGAR
     KAVOOR
     MANGALURU 575015

10 . A K ASHRAF @ ASHFRAJ JOKATTE
     S/O LATE ABDUL REHMAN
     AGED 36 YEARS
     R/AT NO 3/191
     DARUSSSALAM
     JOURBHABAGH
     NEAR NEW MOSQUE
     JOKATTE POST
     MANGALURU 574146

11 . AYUB K AGNADY
     S/O ABUBAQAR
     AGED 42 YEARS
     R/AT NEAR SYNDICATE BANK
     (PRESENT CANARA BANK)
     GANDHI PARK
     UPPINANGADI TOWN
     PUTTUR TALUK
     DAKSHINA KANNADA 574241

12 . SHAHIDKHAN
     S/O ANWAR KHAN
     AGED 40 YEARS
     R/AT NO 13/2
     BISMILLAIAH MANZIL
     NEAR MEHRAJ MOSQUE
     SHIVAJI ROAD
     LASHKAR MOHALLA
     SHIMOGA - 577 202
                           4


13 . IMADUDDIN
     S/O MOUDDIN
     AGED 37 YEARS
     R/AT NO 2444
     11TH CROSS
     MCC A BLCOK
     BEHIND AYYAPPA TEMPLE
     OPP BASAVESHWARA GIRLS HIGH SCHOOL
     DAVANAGERE 577002

14 . ABDUL AZEEZ ABDUL
     S/O ABDUL SUKUR
     AGED 34 YEARS
     R/AT NO 268
     TIPPU NGAR
     BANAVASI ROAD
     SIRASI
     UTTAR KANNADA DISTRICT - 581401

15 . MOHAMMED FAYAZ
     ALIAS ABDUL FAYAZ NAJEERSQAB
     S/O NAZEER SAB
     AGED 30 YEARS
     R/AT 1ST CROSS
     QUILLA AREA
     GANGAVATHI TOWN
     KOPPALA 583227

    (PETITIONERS NO.1 TO 15 ARE NOW IN J C
    AND REP. BY WIFE OF PETITONER NO 1)

    ARSHIYA FATHIMA
    W/O NASIR PASHA
    AGED 32 YEARS
    R/AT NO 519, 11TH CROSS
    PILLANNA GARDEN
    3RD STAGE, K G HALLI
    BENGALURU 560032
                                       ... PETITIONERS

(BY SRI M.S. SHAMSUNDAR, SENIOR COUNSEL ALONG WITH
 SRI MOHAMMED TAHIR, ADVOCATE)
                             5


AND

STATE BY K G HALLI POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
OFFICE OF ADVOCATE GENERAL
HIGH COURT COMPLEX
OPP VIDHANA SOUDHA
BANGALORE 560001                          ... RESPONDENT

(BY SRI V.S. HEGDE, SPP-II ALONG WITH
 SRI R.D. RENUKARADHYA, HCGP)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH OR SET ASIDE THE ORDER PASSED ON
26.12.2022 BY HONBLE 49TH ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND (SPECIAL COURT FOR TRIAL OF NIA
CASES) AT BANGALORE, IN CRIME NO.328/2022 REGISTERED
BY THE KG HALLI PS, UNDER SECTION 153(A),121,121(A)
READ WITH SECTION 120B OF IPC AND SECTION 16,18 AND
18B OF UA(P)A GRANTING POLICE CUSTODY TO THE
RESPONDENT POLICE FOR A PERIOD OF 9 DAYS, WHICH IS
PRESENT AT ANNEXURE-A AND CONSEQUENTLY TO SET ASIDE
ALL THE INVESTIGATION DONE DURING THIS ILLEGAL POLICE
CUSTODY. WHEREIN PETITIONERS ARRAIGNED AS ACCUSED
NO.1 TO 5, 7 TO 11, 13 TO 14, 16 TO 17 AND 19
RESPECTIVELY.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.01.2023 THIS DAY, THE COURT
MADE THE FOLLOWING:

                         ORDER

This petition is filed by the petitioners-accused

persons under Articles 226 and 227 of the Constitution of

India read with Section 482 of Cr.P.C. for quashing or

setting aside the order passed by the 49th Additional

City Civil and Sessions Judge and (Special Court for trial of

NIA Cases) at Bengaluru in Crime No.328/2022 registered

by the K.G.Halli Police Station, for the offences punishable

under Sections 153(A), 121, 121(A) read with Section

120B of IPC and Sections 16, 18, 18B of the Unlawful

Activities (Prevention) Act, 1967 (for short 'UA(P) Act') and

also to set aside the investigation done by the Police during

the illegal police custody.

2. Heard the learned Senior counsel for the

petitioners and learned SPP-II for the State.

3. The case of the petitioners is that the

respondent-Police arrested these petitioners and they have

been remanded to the judicial custody, subsequently, after

more than two months, the prosecution has filed an

application seeking police custody of these petitioners from

20.12.2022 and 28.12.2022 and the learned Sessions

Judge granted police custody for nine days from

27.12.2022 to 04.01.2023, vide order dated 26.12.2022,

which is under challenge.

4. Learned Senior counsel for the petitioners has

contended that as per the judgment of the Hon'ble

Supreme Court in the case of Gautam Navlakha vs.

National Investigation Agency in Criminal Appeal

No.510/2021 (Arising out of SLP (Criminal)

No.1796/2021), the Hon'ble Supreme Court has held

that no police custody can be given after lapse of 30 days

as per Section 43(D) of UA(P) Act. But here in this case,

after two months of the remand of the accused to the

judicial custody, the trial Court granted 9 days police

custody which is illegal and against the guidelines issued

by the Hon'ble Supreme Court. The learned counsel further

contended that when the petitioners approached the

Vacation Bench, the Vacation Bench has stated that if the

order of giving police custody become illegal, then the

investigation done by the police can be declared as illegal.

Therefore, it is contended that the police have already

further investigated the matter and seized some articles,

which cannot be considered as a legal and therefore, the

further investigation done by the police during the police

custody shall have to be expunged from the record.

Hence, prayed for quashing the impugned order.

5. Learned Senior counsel appearing for the

petitioners has also contended that the Co-ordinate Bench

of this Court has not followed the principle laid down by the

Hon'ble Supreme Court in the case of Gautam Navlakha

stated supra and the judgment of the Co-ordinate Bench of

this Court has held in the case of Dr. Sabeel Ahmed vs.

National Investigation Agency in W.P.No.2485/2021

decided on 26.05.2022 is per incuriam and the said

judgment delivered by the Co-ordinate Bench is without

the knowledge of the judgment passed by the Hon'ble

Supreme Court in Gautam Navlakha's case. Hence,

prayed for allowing the petition.

6. Per contra, learned SPP-II has contended that

the order passed by the trial Court has been already

executed, therefore, the petition become infructuous and

does not survive for consideration. He further contended

that the judgment delivered by the Hon'ble Supreme Court

in the case of Gautam Navlakha stated supra in

altogether different facts and circumstances of the case

and this case is altogether different fact. The Co-ordinate

Bench of this Court has held the Court can pass an order

by extending the police custody even after lapse of 30 days

and the same was relied by the trial Court in the impugned

order. Therefore, the learned counsel has contended that

the order of the trial Court does not suffer any illegality

and if at all, it falls under irregularities, that cannot be a

ground for setting aside the same as per Sections 460 and

465 of Cr.P.C. If there is no failure of justice, any

irregularity or omission in the investigation or the trial, that

cannot vitiate the proceedings. Hence, prayed for

dismissing the petition.

7. Having heard the arguments and on perusal of

the records, it is not in dispute that the police have

registered a case against the petitioners on 21.09.2022 in

Crime No.328/2022 and the accused persons were arrested

and they have taken to the police custody till 03.10.2022.

Subsequently, they have produced before the Court and

remanded to the judicial custody. It is also an admitted

fact that the police once again filed an application seeking

police custody of the accused persons by invoking the

provisions of Section 43(D) of the UA(P) Act seeking 9 days

of custody from 21.12.2022 to 28.12.2022. However, by

the impugned order, the trial Court has granted police

custody of accused from 27.12.2022 to 04.01.2023. The

learned Senior counsel for the petitioners has relied upon

the judgment of the Hon'ble Supreme Court in the case of

Gautam Navlakha stated supra and for the convenience,

the judgment delivered at paragraph Nos.126, 127 and

128 are referred as under:

"126. Section 43 D(2) of UAPA reads as follows:--

"(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; 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".

127. Under Section 43(D)(2)(a), it is clear that the maximum period of police custody which is permissible has been increased from 15 days to 30 days. The further modification is that which is relevant which is incorporated in the second

proviso. It contemplates that the investigating officer can seek with reasons and explaining the delay obtain the police custody of a person who is in judicial custody.

128. We would think that the position under Section 167 as applicable in cases under UAPA is as follows:--

Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had laid down in Anupam Kulkarni (supra), inter alia, that under Section 167 which provides for 15 days as the maximum period of police custody, the custody of an accused with the police can be given only during the first 15 days from the date of the remand by the Magistrate. Beyond 15 days, the remand can only be given to judicial custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases falling under UAPA applying the principle declared in (1992) 3 SCC 141, the investigating officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the first 30 days of the remand. In this regard, the number of days alone is increased for granting remand to police custody.

The principle that it should be the first 30 days has not been altered in cases under UAPA.

As far as the second proviso in Section 43(D)(2)(b) is concerned, it does bring about an alteration of the law in Anupam Kulkarni (supra). It is contemplated that a person who is remanded to judicial custody and NIA has not been given police custody during the first 30 days, on reasons being given and also on explaining the delay, Court may grant police custody. The proviso brings about the change in the law to the extent that if a person is in judicial custody on the basis of the remand, then on reasons given, explaining the delay, it is open to the Court to give police custody even beyond 30 days from the date of the first remand. We may notice that Section 49(2) of Prevention of Terrorism Act is pari materia which has been interpreted by this Court in (2004) 6 SCC 672 : AIR 2004 SC 3946 and the decision does not advance the case of Appellant though that was a case where the police custody was sought of a person in judicial custody but beyond 30 days.

In this regard, it would appear that the appellant had surrendered on 14.04.2020. He was not in judicial custody. He was produced with a remand report seeking police custody on 15.04.2020. Treating this as a remand sought

within the first 30 days, a remand is ordered for a period of 7 days initially. There is no dispute that the period was police custody. We may notice that an accused under UAPA may be sent to judicial custody, police custody or granted bail. If the argument that the police custody can be sought at any time and it is not limited to cases where there is judicial custody, it will go against the clear terms of the proviso and even a person who is bailed out can after 30 days be remanded to police custody. This is untenable. The case of the appellant that the police custody granted on 15.04.2020 was permissible and consistent with his case does not appear to be correct.

8. The Hon'ble Supreme Court has categorically

held that, the police custody can be granted within 15 days

from the date of the first judicial remand as per Section

167 of Cr.P.C. and under the 'UA(P) Act, the police custody

can be given for 30 days within 30 days of the first remand

of the accused to the judicial custody. Admittedly, here in

this case, the first remand to the judicial custody was held

and was ordered and the accused was remanded to the

judicial custody on 03.10.2022. They have been given to

the custody for 11 days from 23.09.2022 till 03.10.2022.

If the accused were remanded to the judicial custody on

03.10.2022 to consider for 30 days, the Police is required

to seek for any police custody within the lapse of 30 days

from 03.10.2022 which falls on 02.11.2022. Whereas, the

police have moved an application seeking further police

custody only on 21.12.2022 beyond 30 days of the first

remand. Therefore, the trial Court ought not to have

granted 9 days of police custody after the lapse of 30 days

of first remand from 03.10.2022 or the application ought

to have filed by the Investigation Officer within

02.11.2022. However, as per Section 43 of the second

provision to Section 43(D)(2) of 'UA(P) Act, it provides that

if the Investigating Officer making the investigation under

the Act request for the purpose of investigation for police

custody from the judicial custody of any person in judicial

custody, he shall file an affidavit stating the reason for

doing so and also shall explain the delay if any for

requesting such police custody. The trial Court has relied

upon the judgment of the Co-ordinate Bench of this Court

in the case of Dr. Sabeel Ahmed, stated supra which was

delivered on 26.05.2022, where the Co-ordinate Bench has

held the police custody can be given even after lapse of 30

days. But the Co-ordinate Bench of this Court have no

occasion to consider the judgment of the Hon'ble Supreme

Court in the case of Gautam Navlakha, where the

Hon'ble Supreme Court has delivered the judgment on

12.05.2021. Therefore, the judgment of the Co-ordinate

Bench of this Court is the judgment per incuriam and it

cannot be relied upon in view of the judgment passed by

the Hon'ble Supreme Court and law laid down in the case

of Gautam Navlakha.

9. The learned counsel for the petitioners also

relied upon the judgment of the Division Bench of the Delhi

High Court in the case of NIA vs. Owais Ahmad Dar &

Ors., vide order dated 25.03.2022, wherein the Division

Bench of the Delhi High Court also held that the police

custody cannot be given after lapse of 30 days of judicial

remand. Therefore, in my considered opinion, the trial

Court has committed error in granting 9 days police

custody after lapse of first 30 days of judicial remand as

per Section 43(D)(2) of UA(P) Act.

10. However, it is brought to the notice by the

learned SPP-II that prior to matter coming up before this

Court, the order of the trial Court has been acted upon.

The police custody has been already utilized by the police

for the purpose of investigation and got remanded the

accused back to the judicial custody as on 03.01.2023 and

it is contended that the petition become infructuous.

However, the Co-ordinate Bench of this Court during the

vacation has held that if the order of the police custody is

illegal, then the investigation becomes invalid and it would

not be permissible in the eye of law which cannot be

sustainable in view of the judgment of the Hon'ble

Supreme Court delivered in the case of Pradeep S.

Wodeyar vs. The State of Karnataka in

Crl.A.No.1288/2021 and connected matters, as if any

irregularity caused in the investigation that will not vitiate

the proceedings and no injustice would cause to the case

of the accused. On the other hand, the learned counsel for

the petitioners has contended that in view of the custody

of the police become illegal, the investigation done by the

police shall be set aside. It is submitted by the learned

SPP that during the course of the further investigation,

during the police custody, there are number of laptops,

Mail IDs, Pen drives and incriminating evidence were

recovered by the Police and that cannot cause any serious

injustice to the petitioner. On the other hand, Section 465

of Cr.P.C. would take care and investigation cannot be

vitiated. For convenience, Sections 460, 461 and 465 of

Cr.P.C are read as under:

"460. Irregularities which do not vitiate proceedings

If any Magistrate not empowered by law to do any of the following things, namely:-

(a) to issue a search-warrant under Section 94;

(b)to order, under Section 155, the police to investigate an offence;

(c) to hold an inquest under Section 176;

(d)to issue process, under Section 187, for the apprehension of a person within his local

jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause

(a) or clause (b) of sub-section (1) of Section 190;

(f) to make over a case under sub-section (2) of Section 192;

(g) to tender a pardon under Section 306;

(h) to recall a case and try it himself under Section 410; or

(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

461. Irregularities which vitiate proceedings

If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-

(a) attaches and sells property under Section 83,

(b) issues a search-warrant for a document, parcel or other things in the custody of a postal or telegraph authority;

(c) demands security to keep the peace,

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order under Section 133 as to a local nuisance;

(i) prohibits, under Section 143, the repetition or continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter X;

(k) takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;

(o) decides an appeal;

(p) calls, under Section 397, for proceedings; or

(q) revises, an order passed under Section 466,

his proceedings shall be void.

465. Finding or sentence when reversible by reason of error, omission or irregularity.

(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

11. In this regard, the Hon'ble Supreme Court in

the case of Pradeep S. Wodeyar stated supra has held at

paragraph No.85(iii) and (iv) which is as under:

85.(iii) The decision in Gangula Ashok (supra) was distinguished in Rattiram (supra) based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2) CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2) CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the Courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others;

(iv) In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to

explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated;

On bare reading of Section 460 of Cr.P.C., if any

order passed by the learned Magistrate while passing the

order of demand, it amounts to only irregularity which do

not vitiate the proceedings and as per Section 461 of

Cr.P.C., the provision itself define that the proceedings do

not vitiate, if there are any irregularities and as per

Section 465 of Cr.P.C., any findings or sentence reversible

by a reason of error omission or irregularity, only if great

injustice caused to the person and failure of justice. In

view of the judgment of the Hon'ble Supreme Court in the

case of Pradeep S. Wodeyar and as per Sections 460 and

465 of Cr.P.C., if any of the order passed by the Special

Court ordering for remand for investigation, that will not

vitiate the proceedings or investigation done by the

Investigating Officer and the petitioners have failed to

make out a case that there was failure of justice as per

Section 465 of Cr.P.C. and prejudice caused to them.

Therefore, though the learned Special Court ought not

have remanded the accused to the police custody after

completion of 30 days of first judicial remand under

Section 43(D)(2) of UA(P) Act. But before passing the

order by this Court, the order of the Magistrate was acted

upon and various incriminating evidence were recovered

by the police during the investigation, therefore, the

incriminating evidence collected by the police during the

investigation cannot be declared as illegal and the accused

can take a plea in the defence during the cross-

examination of the evidence of the prosecution witness

and to bring home the same, the great injustice would

cause to him because of the investigation done during the

custody given by the learned Sessions Judge beyond 30

days.

12. In view of the above said observations, once

the order is already acted upon by the police, there is no

question of setting aside the said impugned order passed

by the trial Court and the petitioner has failed to show that

there was a failure of justice in view of the said order.

Therefore, the petition deserves to be dismissed.

13. Accordingly, the petition is dismissed.

Sd/-

JUDGE

GBB