Madras High Court
Union Of India Represented By vs Mohammed Iqbal @ Senthil Kumar on 30 November, 2021
Criminal Appeal No.485 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Criminal Appeal No.485 of 2021
Union of India represented by
Inspector of Police,
National Investigation Agency,
Chennai.
RC No.08/2021/NIA/DLI .. Appellant
Vs.
Mohammed Iqbal @ Senthil Kumar
S/o.Nagarajan .. Respondent
Criminal Appeal filed u/s.21 of the National Investigation Act against
the judgment and order dated 03.09.2021 passed in Crl.M.P.No.222 of 2021
on the file of learned Special Judge for NIA cases, Poonamallee.
For Appellant : Mr.R.Karthikeyan
Special Public Prosecutor
For Respondent : Mr.SMA.Jinnah
*****
1/8
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Criminal Appeal No.485 of 2021
JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
This criminal appeal is directed against the order dated 03.09.2021
passed in Crl.M.P.No.222 of 2021 by the learned Special Judge for NIA
cases, Poonamallee.
2. For determination of this appeal, it may be relevant to give the
dates and events chronologically:
Dates Events
01/12/2020 Based on the complaint of Sh.Ravichandran, Sub-Inspector of
Police, C1, Thideer Nagar Police Station, a case was
registered at C1, Thideer Nagar Police Station, Madurai City
vide FIR No.971/2020 u/s.153A, 153B, 505(1)(b), 505(1)(c)
and 505(2) of IPC and 13(1)(b) of UA(P) Act, 1967. The
complainant, in his complaint, stated that the respondent
Mohammed Iqbal @ Senthil Kumar (A1) had posted in
Facebook account Thooga Vizhigal Rendu is in Kazimar
Street, which denigrates Hindus, instigates Muslims to act
against Hindus and creates communal disharmony amongst
different religions in a manner prejudicial to the maintenance
of public order.
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Criminal Appeal No.485 of 2021
Dates Events
02/12/2020 Sh.V.Ramalingam, ACP, SIC, Madurai City Police, the then
Investigating Officer, arrested Mohammed Iqbal @ Senthil
Kumar (A1), recorded his confession statement and seized the
mobile phone used for committing the offence and during
investigation, he had examined 16 witnesses.
25/01/2021 Bail application filed before learned Judicial Magistrate V,
Madurai, in Cr.M.P.No.417 of 2021, which has been
dismissed on the reasoning that the offences alleged are
triable by sessions Court.
02/03/2021 The Assistant Commissioner of Police, Special Investigation
Cell, Madurai, had filed Crl.M.P.No.984 of 2021
u/s.43(D)(2)(b) of the Unlawful Activities (Prevention) Act,
1967, seeking extension of remand period, which was allowed
by the learned Judicial Magistrate V, Madurai, on the same
day, extending the remand period from 90 days to 180 days.
03/03/2021 Respondent/accused filed a bail application u/s.167(2) Cr.P.C.
before the learned Judicial Magistrate V, Madurai, in
Crl.M.P.No.999 of 2021, which was dismissed on same day as
statutory period for investigation was extended by order.
12/03/2021 Respondent filed bail application in Crl.M.P.No.1186 of 2021
before the Principal Sessions Judge, Madurai and the same
was dismissed as period for investigation was extended.
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Criminal Appeal No.485 of 2021
Dates Events
April 2021 Respondent filed bail application before Madurai Bench in
Crl.O.P.(MD) No.4951 of 2021 and adjourned.
20/04/2021 Government of India, Ministry of Home Affairs, CTCR
Division, vide its order entrusted the investigation to NIA.
26/04/2021 NIA re-registered the case as FIR No.RC-08/2021/NIA/DLI
under Section 153A, 153B, 505(1)(b), 505(1)(c), 505(2) IPC
and S.13(1)(b) of Unlawful Activities (Prevention) Act, 1967
and took up investigation.
02/07/2021 Madurai Bench of this Court dismissed the bail application in
Crl.O.P.No.4951 of 2021 to renew his application before the
Special Court for NIA cases as investigation is taken over by
NIA.
Application filed by the respondent for bail in Crl.M.P.No.222
of 2021 u/s.439 Cr.P.C. and counter filed by appellant.
03/09/2021 Orders passed by Special Judge releasing the respondent
herein on bail.
3. Challenging the order of bail that was granted by the Special Court
under the National Investigation Agency Act in Crl.M.P.No.222 of 2021
dated 03.09.2021, the National Investigation Agency has filed the present
appeal.
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Criminal Appeal No.485 of 2021
4. Heard Mr.R.Karthikeyan, learned Special Public Prosecutor
appearing for the appellant and Mr.SMA.Jinnah, learned counsel appearing
for the respondent/accused.
5. The entire case falls in a very narrow compass. It is seen that while
the respondent/accused was being remanded to judicial custody from time to
time by the learned Judicial Magistrate V, Madurai, the Assistant
Commissioner of Police, Special Investigation Cell, Madurai, appears to
have filed an application u/s.43D(2)(b) of the Unlawful Activities
(Prevention) Act, 1967, for extending the period of remand from 90 days to
180 days. On this application, on 02.03.2021, the learned Magistrate has
extended the period of remand from 90 days to 180 days. The learned
Magistrate has also dismissed the default bail application of the
respondent/accused in Crl.M.P.No.999 of 2021 on 03.03.2021 on the ground
that he had extended the remand period from 90 days to 180 days.
6. This, in our considered opinion, is legally vitiated inasmuch as the
application for extension of remand period u/s.43D(2)(b) of the Unlawful
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Criminal Appeal No.485 of 2021
Activities (Prevention) Act, 1967, should have been filed by the Public
Prosecutor and not by the Investigating Officer. That apart, the said
application should have been filed before the Special Court or Sessions
Court, as the case may be and not before the learned Judicial Magistrate V,
Madurai, since the offences alleged against the respondent/accused are
under the 43D(2)(b) of the Unlawful Activities (Prevention) Act, 1967. This
issue is no more res integra and stands settled by the Hon'ble Supreme
Court in Bikramjit Singh v. State of Punjab1. The law laid down in
Birkamjit Singh's case is reiterated by the Hon'ble Supreme Court in
Sadique & others v. State of Madhya Pradesh2
7. Based on the extension of remand, the State as well National
Investigation Agency has conducted investigation and have collected
several materials against the respondent/accused. Of course, the materials so
collected will not stand vitiated just because they were collected during the
period when the remand was erroneously extended by the learned Judicial
Magistrate V, Madurai.
1 2020 (10) SCC 616
2 LL 2021 SC 434
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Criminal Appeal No.485 of 2021
8. In India, illegally collected evidence will not by itself stand vitiated
as held by the Constitution Bench of the Hon'ble Supreme Court in Pooran
Mal v. Director of Inspection (Investigation), New Delhi and others3.
9. We do not find any infirmity in the impugned order of bail that has
been granted by the learned Special Judge for NIA cases, Poonamallee, vide
order dated 03.09.2021 in Crl.M.P.No.222 of 2021, warranting interference
in appeal.
In the result, this Criminal Appeal is devoid of merits and
accordingly, the same is dismissed.
[P.N.P., J] [R.H., J]
30.11.2021
Index: Yes/No
gm
3 1974 (1) SCC 345
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Criminal Appeal No.485 of 2021
P.N.PRAKASH, J
and
R.HEMALATHA, J
gm
To
1.The Special judge for NIA cases,
Poonamallee.
2.The Special Public Prosecutor,
High Court, Madras.
Criminal Appeal No.485 of 2021
30.11.2021
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