Muhammed Shafi.P vs Muhammed Shafi.P
2021 Latest Caselaw 5836 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT

            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                               &

            THE HONOURABLE MRS. JUSTICE M.R.ANITHA

  THURSDAY, THE 18TH DAY OF FEBRUARY, 2021 / 29TH MAGHA, 1942

                     CRL.A.No.878 OF 2020

 AGAINST THE ORDER DATED 12.10.2020 IN CRL.M.P.NO.179/2020 IN

    RC NO.2/2020/NIA/KOC OF SPECIAL COURT FOR TRIAL OF NIA
                       CASES,ERNAKULAM

APPELLANT/RESPONDENT NO.6/ACCUSED NO.7:

            MUHAMMED SHAFI.P,AGED 36 YEARS
            S/O.ABOOBACKER PANNIKKOTTIL,
            PANNIKKOTTIL HOUSE,IKKARAPADY(PO),
            MALAPPURAM DISTRICT-676637.

            BY ADVS.
            SRI.P.V.ANOOP
            SRI.VIPIN NARAYAN
            SRI.PHIJO PRADEESH PHILIP
            SRI.K.V.SREERAJ

RESPONDENT/PETITIONER/COMPLAINANT:

            NATIONAL INVESTIGATION AGENCY,KOCHI,
            REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,ERNAKULAM-682023.

            BY ADV. SRI.P.VIJAYAKUMAR,
                        ASST. SOLICITOR GENERAL OF INDIA
            SRI.ARJUN AMBALAPPATTA,
                       SPECIAL PUBLIC PROSECUTOR FOR NIA CASES

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020,
THE COURT ON 18.02.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.878 of 2020             2




                   A.HARIPRASAD & M.R.ANITHA, JJ.
                       --------------------------------------
                        Crl.Appeal No.878 of 2020
                       --------------------------------------
                 Dated this the 18th day of February, 2021

                                 JUDGMENT

Hariprasad, J.

Legal question raised in this appeal by an accused involved in

certain offences punishable under the Unlawful Activities (Prevention) Act,

1967 (in short, "UA(P) Act") is whether, by invoking Section 43-D(2)(b) of the

said Act, the detention of an accused beyond 90 days prescribed under

Section 167 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C.") can

be extended upto 180 days by filing an application on 68 th day of the first

remand.

2. Appellant is the 7th accused in a case registered by the National

Investigation Agency (in short, "NIA") constituted under the National

Investigation Agency Act, 2008 (in short, "NIA Act"). An application/report

filed by the public prosecutor for NIA under Section 43-D(2)(b) of UA(P) Act

for extension of the judicial custody of the appellant along with other accused

beyond a period of 90 days was considered by the Judge, Special Court for

trial of NIA Cases, Ernakulam as per the impugned order dated 12.10.2020

and the request was allowed. According to the appellant, the learned Judge

without properly applying his mind extended the order of detention beyond

90 days by allowing the application filed on 68th day of remand. It is argued

that non-application of mind is writ large because there is no material placed

before the court to find out whether the investigation against the appellant

could have been completed within 90 days. Another contention raised is that

a valuable right of the accused/appellant to move for default bail on the

expiry of 90 days has been taken away by filing a premature application for

extension of the remand period.

3. Heard Shri P.Vijayabhanu, learned senior counsel for the

appellant and Shri P.Vijayakumar, learned Assistant Solicitor General of India

(in short, "ASG") and Shri Arjun Ambalappatta, learned Special Public

Prosecutor for NIA Cases.

4. Annexure-A is the report submitted by the public prosecutor

under Section 43-D(2)(b) of UA(P) Act for extending the period of remand of

the appellant and other accused persons. One of the contentions raised by

the appellant is that the dates of first remand of accused persons are not

specifically mentioned. This may lead to a confusion and consequent

injustice since there could be mistakes in calculating 90 days fixed by

Section 167 Cr.P.C. Further, no convincing reason is stated by the court

below for extending the period of remand beyond 90 days. That itself is a

reason to find that there was non-application of mind. From the operative

portion of the impugned order it can be seen that the learned Judge has

accepted the report submitted by the public prosecutor and decided to

extend the period of detention of the accused persons, including the

appellant, beyond 90 days subject to further orders passed in the case.

Learned senior counsel appearing for the appellant forcefully argued that no

outer period is mentioned in the order to find out whether the extension was

for a period of 180 days or for a shorter period. According to him, an evasive

order of this nature should not have been passed since one cannot be left to

assume that the extension was for a period of 180 days.

5. In reply to these arguments, learned ASG contended that the

appellant has not filed any objection to Annexure-A report submitted by the

public prosecutor seeking extension of the remand beyond 90 days. In fact

the request by NIA was not opposed by the appellant as is evident from the

impugned order itself. It is also pointed out on behalf of NIA that the

appellant did not apply for a default bail on completion of 90 days. Instead,

he preferred an appeal against the rejection of his bail plea. His action would

legally imply the fact that he was conceding to the impugned order.

6. In the first place, learned ASG contended that the order passed

by the learned trial Judge invoking his jurisdiction under Section 43-D(2)(b)

of UA(P) Act, being an interlocutory order, cannot be challenged in an appeal

by virtue of the prohibition in Section 21(1) of the NIA Act. Section 21(1) says

that notwithstanding anything contained in the Code (Cr.P.C.) an appeal shall

lie from any judgment, sentence or order, not being an interlocutory order, of

a Special Court to the High Court both on facts and on law. This provision

clearly excludes the maintainability of an appeal against an interlocutory

order passed by the Special Court. Mastiguda Aboobacker and another v.

National Investigation Agency (N.I.A.) and others (2020 (6) KHC 265) is a

Full Bench decision of this Court wherein, after considering Amar Nath v.

State of Haryana ((1977) 4 SCC 137) and Madhu Limaye v. State of

Maharashtra ((1977) 4 SCC 551) and other decisions on the point, it is held

that an interlocutory order, pure and simple, passed by a Special Court

cannot be challenged in an appeal and the remedy available to the

aggrieved is to prefer a petition under Section 482 of Cr.P.C.

7. In Mastiguda Aboobacker's case after referring to various legal

dictionaries it has been held that an interlocutory order is one which is made

pending the cause and before a final hearing on merits. It is further observed

that an interlocutory order is an order that refers to some intermediate matter

in the case; any order other than a final order. In the above decision, the Full

Bench had examined the distinctions between an interlocutory order, an

intermediate order and a final order.

8. On a perusal of Section 43-D(2) of UA(P) Act it can be seen that

the provision modifies Section 167 of Cr.P.C. to the extent shown below:

"43-D. Modified application of certain provisions

of the Code.-(1) xxxxx

(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."

9. On a reading of the first proviso to Section 43-D(2)(b) it will be

evident that if the public prosecutor files a report before the Special Court

indicating the progress of the investigation and the specific reasons for the

detention of accused beyond a period of 90 days referred to in the Section,

the court may extend the said period upto 180 days.

10. Learned senior counsel vehementally argued that this extension

directly impinge on the rights of the accused persons to claim default bail

after 90 days and therefore any order passed under the above provision

should be treated as appealable. Per contra, learned ASG contended that

under the scheme of Cr.P.C. the accused gets an indefeasible right to claim

default bail after 60 days or 90 days, as the case may be, as provided under

the statute if no final report was filed in the meantime. However, under the

UA(P) Act the court is clothed with a power to extend the period of remand of

the accused from 90 days upto 180 days under Section 43-D(2), if the

prosecutor submits a report indicating the progress of the investigation and

showing specific reasons for the detention of accused beyond 90 days.

According to the learned ASG, the indefeasible right of the accused is not

annihilated by the provision and it is only postponed to a farther day, viz. 180

days.

11. On a careful consideration of the rival contentions, we are of the

view that an order of extension of the remand period beyond 90 days,

passed by the Special Court, can only be an interlocutory order. Such an

order in no way prejudicially affects the contentions of the accused because

what contentions he could have raised on 90th day could be raised by him on

the completion of 180 days. In other words, considering the object of the

statute and the fact that it is meant to tackle or deal with very serious

offences against the unity, integrity, security and sovereignty of India and

also against terrorism, a world-wide menace, we find that elongation of the

period fixed for the accused to claim a default bail from 90 days to 180 days

is the clear legislative intent. There is no total abrogation of the right of the

appellant to claim a default bail later.

12. Moreover, any observation in such an order can have no bearing

on the plea that the appellant could have raised at the time of trial. Order

passed under the provisos to Section 43-D(2)(b) can have no permanent

impact on the legal right of the appellant to defend his case. It does preclude

an accused to file a bail application before the expiry of 180 days of remand.

So much so, it can only be regarded as an order made pending the case.

Therefore we have no doubt that the impugned order is an interlocutory

order not capable of being challenged in appeal under Section 21(1) of NIA

Act. Hence this appeal is incompetent.

13. Even though learned ASG contended that the appeal is filed

beyond 30 days prescribed under Section 21(5) of NIA Act, we are not

impressed with this contention. The impugned order was passed on

12.10.2020. It is seen that a copy was applied on 21.10.2020 and it was

delivered on the same day. So, the number of days lost is only 8. Thereafter,

on 11.11.2020 the appeal has been filed before this Court. By this time, 21

days have elapsed. The appeal, therefore, was filed on the 29 th day

indicating that it is well within the period of 30 days prescribed under Section

21(5) of NIA Act. Having found that an appeal is not the remedy available to

the appellant, this point assumes no significance in this case.

14. Coming to the merits of this case, it is evident from Annexure-A

report submitted by the prosecutor under Section 43-D(2)(b) of UA(P) Act

that it was filed on 08.10.2020. It is seen from the report that the appellant

was formally arrested while he was in judicial custody in a case registered

under the Customs Act. His formal arrest was on 31.07.2020. It is a well

settled principle that the period of 60 days or 90 days prescribed in Sub-

clauses (i) and (ii) of proviso (a) to Section 167 of Cr.P.C. should be

computed from the date of first remand of the accused and not from the date

of his arrest under Section 57 (Chaganti Satyanarayana v. State of A.P.

(AIR 1986 SC 2130). This proposition is fortified by other pronouncements

as well. According to the learned senior counsel, the remand extension of

this accused was sought on the 68th day along with other accused whose

remand period was nearing 90 days. On a perusal of the report for extension

of the remand period, submitted by the public prosecutor, we find that the

progress of investigation has been clearly narrated in various paragraphs

and so also the specific reasons for detention of the accused persons

beyond 90 days. True, the report is submitted in respect of accused 1, 2, 4 to

9 and 11 to 14 together. It can be seen that in respect of other accused

persons their remand for 90 days was about to expire when the report was

submitted by the public prosecutor. As pointed out by the learned ASG, the

appellant has not filed any objection against the report. From the impugned

order, it is evident that he did not oppose the remand extension. NIA

contended that the appellant, without filing any objection to the report

submitted for extension of the remand period and without raising any

opposition to the request for extension of remand, chose to file an appeal

against rejection of his bail plea. It is also highlighted by the learned ASG

that the appellant did not even apply for default bail on the expiry of 90 days.

15. Learned senior counsel refuted these contentions by stating that

before expiry of 90th day the order of extension was passed by the trial court

taking away the appellant's right to file an application on the expiry of the

said period in custody.

16. The question that boils down for determination is if the remand

extension order passed on 68th day caused deprivation of any legal right of

the appellant.

17. To buttress the respective contentions both sides cited

authorities. Learned senior counsel placed reliance on Hitendra Vishnu

Thakur and others v. State of Maharashtra and others ((1994) 4 SCC

602) wherein Sections 3, 18, 20(4), 20(8), etc. of the Terrorist and Disruptive

Activities (Prevention) Act, 1985 (in short, "TADA") were interpreted. Section

20(4) of TADA modified Section 167 of Cr.P.C. by stating that if it was not

possible to complete the investigation, the designated court could extend the

remand period upto one year on the report of the public prosecutor indicating

the progress of the investigation and the specific reasons for the detention of

the accused beyond a period of 180 days. While interpreting this provision

the Supreme Court held that it is immaterial whether the application for bail

on the ground of default under Section 20(4) of TADA is filed first, or the

report envisaged by Clause (bb) is filed by the public prosecutor first so long

as both are considered while granting or refusing bail. Although the facts and

situations in the above decision are different, it is argued by the learned

senior counsel that the appellant has lost in this case an opportunity to urge

his contentions on the expiry of 90 days. In answer to this contention,

learned ASG submitted that the appellant cannot be heard to say so

because he has not even filed an application for default bail either on the eve

of completing 90 days or immediately on completion of 90 days. Not only

that, he has not filed an objection to the report submitted by NIA seeking

extension of remand. Therefore, the noticeable distinctions in the facts in

Hitendra Vishnu Thakur and this case have an impact on the applicability

of the legal principles enunciated therein.

18. Relying on Kasi S. v. State through the Inspector of Police,

Samaynallur Police Station, Madurai (2020 (3) KHC 600) learned senior

counsel contended that on the strength of an order passed by Supreme

Court on 23.03.2020 under Articles 141 and 142 of the Constitution of India

extending the period of limitation in the wake of Covid-19 pandemic, it

cannot be understood to mean that it ever intended to extend the period of

filing charge sheet by police as contemplated under Section 167(2) of

Cr.P.C. In this case, NIA has not raised such a plea to seek extension of time

for filing report due to any reason connected with Covid-19 pandemic.

Therefore, we find it difficult to apply the ratio in the above decision to this

case.

19. It is trite, the ratio in every binding precedent has to be applied

with reference to the similarity in facts. In this case, as pointed out earlier,

the appellant has not applied for default bail on completing 90 days. He has

not even filed any objection to the application filed by NIA seeking extension

of his remand period. From the impugned order, we find no demur raised by

the appellant at the time of passing the order. As observed earlier, the

impugned order does not debar the appellant from raising his contentions at

the time of trial. In the peculiar facts and circumstances of this case where

there are large number of accused persons and having voluminous evidence

already collected against them and remaining yet to be collected, we find no

reason to blame NIA for filing an application for extension of remand period

in respect of all the accused persons together. While doing so some accused

persons must have been nearing completion of 90 days of detention

whereas others may be in custody for a lesser number of days. Ideally, NIA

should have filed separate applications in respect of those accused who are

about to complete 90 days and who are in custody much below 90 days. In

the peculiar circumstances of this case, the report submitted by the

prosecutor clearly shows valid reasons for seeking extension of remand

period in respect of all accused persons. Therefore, we find no illegality or

irregularity in the impugned order passed by the learned Judge of the

Special Court. Moreover, we have already found that the appeal is not a

remedy available to the appellant.

In the result, the appeal is dismissed for the aforementioned reasons.

All pending applications will stand closed.

A.HARIPRASAD, JUDGE.

M.R.ANITHA JUDGE.

cks

APPENDIX

APPELLANT'S EXHIBITS:

ANNEXURE A: TRUE COPY OF CRL.M.P.NO.179/2020 FILED BY THE

RESPONDENT BEFORE THE SPECIAL COURT FOR NIA CASES, ERNAKULAM.

RESPONDENT'S EXHIBITS:        NIL