Madras High Court
Ziyavudeen Baqavi vs Union Of India on 13 April, 2023
Crl.A.No.401 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.04.2023
Coram
The Hon'ble Mr. Justice M.SUNDAR
and
The Hon'ble Mr. Justice M.NIRMAL KUMAR
Crl.A.No.401 of 2023
&
Crl.M.P.No.5071 of 2023
in
Crl.A.No.401 of 2023
Ziyavudeen Baqavi ... Appellant/Accused No.3
-vs-
Union of India
Rep. By
The Inspector of Police
National Investigating Agency
Chennai ... Respondent
(R.C.No.08/2021/NIA/DLI)
Criminal Appeal filed under Section 21(4) of National Investigation
Agency Act, 2008 to set aside the order passed in Crl.M.P.No.738 of 2022
dated 09.02.2023 in Spl.S.C.No.26 of 2022 on the file of Hon'ble Special
Court under the National Investigation Agency Act, 2008, Sessions Court
for Exclusive Trial For Bomb Blast Cases, Chennai at Poonamallee,
Chennai as illegal.
1/20
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For Appellant .. Mr.I.Abdul Basith
For Respondent .. Mr.R.Karthikeyan
Special Public Prosecutor for NIA Cases
JUDGMENT
[Judgment of the Court was made by M.SUNDAR, J.]
Captioned Criminal Appeal i.e., Crl.A.No.401 of 2023 has been filed
under Section 21 of the 'National Investigation Agency Act, 2008 (Act 34 of
2008)', which shall hereinafter be referred to as 'NIA Act' for the sake of
brevity, convenience and clarity, assailing an order dated 09.02.2023 made
in Crl.M.P.No.738 of 2022 in Spl.S.C.No.26 of 2022 vide C.C.No.2 of 2021
(CNR No.TNCH06-00743-2022) on the file of Special Court under the NIA
Act (Sessions Court for Exclusive Trial of Bomb Blast Cases), Chennai at
Poonamallee. This 09.02.2023 order shall be referred to as 'impugned order'
and the Court which made the impugned order shall be referred to as 'trial
Court', both for the sake of convenience and clarity.
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2. Appellant filed aforementioned Crl.M.P.No.738 of 2022 in the trial
Court inter alia under Section 227 of 'The Code of Criminal Procedure,
1973 (2 of 1974)' [hereinafter 'Cr.P.C' for the sake of brevity and clarity]
seeking discharge from all the charges levelled against him in the charge
sheet. It is necessary to record that according to the charge sheet, the
charges levelled against the appellant are for alleged offences under
Sections 120-B, 124-A, 153-A, 153-B, 505(1)(b), 505(1)(C) and 505(2) of
'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] and Section
13(1)(b) of 'The Unlawful Activities (Prevention) Act, 1967' [hereinafter
'UAPA' for the sake of brevity, convenience and clarity].
3. The discharge petition was resisted by the prosecution and the trial
Court framed four points for consideration and the relevant portion of the
impugned order capturing the four points reads as follows:
'The point for consideration is
1. Whether the Prosecution has obtained sanction under
Section 45(1) of U.A(P).Act, 1967?
2. Whether the Acts of committed by the Petitioner would fall
under the Definitions UA(P) Act, 1967 and NIA Act, 2008?
3. Whether there is sufficient ground to proceed with the case?
4. Whether the application can be allowed?'
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4. While Point No.1 was answered separately in Paragraph VII of the
impugned order, Points 2 to 4 were answered together in one go vide
paragraph VIII of the impugned order. There shall be more elaboration on
this elsewhere infra in this order.
5. In and by the impugned order the discharge petition filed by the
appellant was dismissed and that has given raise to the captioned appeal as
already alluded to supra.
6.Mr.I.Abdul Basith, learned counsel for appellant submitted that the
impugned order relies on Wikipedia and arrived at a conclusion about the
aim and objective of an entity; that the case laws pressed into service by the
appellant have not been considered and have been brushed aside in one go
by saying that the facts are completely different without any discussion or
elaboration much less dispositive reasoning; that the statement of some
witnesses (LWs 4, 8, 9 and 10) were not supplied to the accused and the
right of fair trial has been infracted but this point has not been considered by
saying that they are protected witnesses within the meaning of UAPA and
NIA Acts; that the charge against the accused for alleged offence under
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UAPA is Section 13(1)(b) of UAPA but the impugned order has referred to
Section 15, which is a Chapter IV proceedings and serious in nature in
complete contrast qua Section 13(1)(b) which is a Chapter III proceedings.
7. This Bench issued notice and Mr.R.Karthikeyan, learned Special
Public Prosecutor for NIA Cases accepted notice for the respondent.
8. At the outset we notice that it is a case of certain points not being
considered and reliance being placed on extraneous material and therefore,
with the consent of both sides, the main appeal itself was taken up.
9. Before proceeding further we make it clear that four points
canvassed by the learned counsel for appellant which have been captured
supra inter-alia turn on non-consideration of case laws, relying on
extraneous material which is forbidden vide ratio laid down by Hon'ble
Supreme Court. There are several other grounds that have been urged on
merits but in the light of the order which we propose to make we have not
captured those points and we would be leaving those questions open.
10. We now proceed to set out our discussion and dispositive
reasoning as regards the four points that have been captured supra.
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11. With regard to reliance on Wikipedia, the submission of learned
counsel is indisputable as paragraph 9 of the impugned order of the trial
Court explicitly relies on Wikipedia for a definition/description to presume
and assume that the objective and aim of a particular entity is as set out
therein. We refrain from setting out the same as categoric and certain sole
reliance on Wikipedia is indisputable. In this view of the matter, learned
Prosecutor really does not have much of a say as it is a matter of record and
part of the case file before us. As regards placing reliance on Wikipedia two
cases laws of Hon'ble Supreme Court are significant. One is Acer India
case [Commissioner of Customs, Bangalore Vs. M/s.Acer India Pvt. Ltd.,
reported in (2008) 1 SCC 382] rendered on 12.10.2007 and the other is
Hewlett Packard / Lenevo case law [Hewlett Packard India Sales Pvt.
Ltd., (Now HP India Sales Pvt. Ltd., Vs. Commissioner of Customs
(Import), Nhava Sheva/Lenevo (India) Pvt. Ltd., Vs. Commissioner of
Customs (Import), Nhava Sheva reported in 2023 LiveLaw (SC) 43]
rendered on 17.01.2023. As regards Acer India and Hewlett Packard /
Lenevo cases, they pertain to classification under Customs Act but the
principle nonetheless can certainly be applied to the case on hand as the
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ratio laid down by Hon'ble Supreme Court is generic i.e., Wikipedia is
based on a crowd-sourced user-generated editing model and therefore is not
completely dependable in terms of academic veracity and can promote
misleading information. To this extent, the principle laid down by Hon'ble
Supreme Court in Acer India and Hewlett Packard / Lenevo case laws can
certainly be applied to the case on hand though the two case laws on facts
pertain to classification of the imported goods under Customs Act.
12. In Acer India case, the question was, whether a micro-computer is
different from a laptop or a PDA. After extracting what the Wikipedia says
on this, it was held by Hon'ble Supreme Court that it is an online
encyclopaedia and information can be entered therein by any person and as
such it may not be authentic. Relevant paragraphs are paragraphs 16 and
17, which read as follows:
'16. It is, thus, evident that in common parlance a desktop or
a microcomputer is different from a laptop or PDA. The distinction
between a laptop and a desktop computer would further be evident
from the history of Wikipedia wherein inter alia it is stated:
“Laptops' upgradeability is severely limited, both for
technical and economic reasons. As of 2006, there is no
industry wide standard form factor for laptops. Each major
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laptop vendor pursues its own proprietary design and
construction, with the result that laptops are difficult to
upgrade and exhibit high repair costs. With few exceptions,
laptop components can rarely be swapped between laptops of
competing manufacturers, or even between laptops from the
different product lines of the same manufacturer. Standard
feature peripherals (such as audio, video, USB, 1394, WiFi,
Bluetooth) are generally integrated on the main PCB
(motherboard), and thus upgrades often require using
external ports, card slots, or wireless peripherals. Other
components, such as RAM modules, hard drives, and
batteries are typically user-upgradeable.
Many laptops have removable CPUs, although support for
other CPUs is restricted to the specific models supported by
the laptop motherboard. The socketed CPUs are perhaps for
the manufacturer's convenience, rather than the end-user, as
few manufacturers try new CPUs in last year's laptop model
with an eye towards selling upgrades rather than new
laptops. In many other laptops, the CPU is soldered and non-
replaceable. [7]
Many laptops also include an internal mini PCI slot, often
occupied by a WiFi or Bluetooth card, but as with the CPU,
the internal slot is often restricted in the range of cards that
can be installed. The widespread adoption of USB mitigates
I/O connectivity to a great degree, although the user must
carry the USB peripheral as a separate item.
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NVidia and ATI have proposed a standardised interface for
laptop GPU upgrades (such as an MXM), but again, choices
are limited compared to the desktop PCIe/AGP aftermarket.”
17. We have referred to Wikipedia, as the learned counsel for
the parties relied thereupon. It is an online encyclopædia and
information can be entered therein by any person and as such it may
not be authentic. However, it is not disputed that a laptop and a
desktop are differently known in commercial parlance. Furthermore,
we are required to determine this issue on interpretation of the
relevant entries contained in the Schedule of the Customs Tariff Act. '
(underlining made by this Court for
ease of reference)
13. Thereafter, in Hewlett Packard / Lenevo case law, Hon'ble
Supreme Court reiterated the aforementioned ratio in Acer India and held
that such online platforms can promote misleading information as already
alluded to and delineated supra in this order.
14. To be noted, Hewlett Packard / Lenevo also on facts is a case
regarding customs goods classification but principle laid down as regards
Wikipedia is generic and there is allusion supra in this regard. The most
relevant paragraph as regards what we are concerned with is paragraph 14
and the same reads as follows:
'14. At the outset, we must note that the adjudicating authorities
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while coming to their respective conclusions, especially the
Commissioner of Customs (Appeal) have extensively referred to online
sources such as Wikipedia to support their conclusion. While we
expressly acknowledge the utility of these platforms which provide free
access to knowledge across the globe, but we must also sound a note
of causation against using such sources for legal dispute resolution.
We say so for the reason that these sources, dispute being a treasure
trove of knowledge, are based on a crowd-sources and user generated
editing model that is not completely dependable in terms of academic
veracity and can promote misleading information as has been noted by
this Court on previous occasions also...... '
15. Therefore, it is clear that Hon'ble Supreme Court has put in a
caveat and caution against use of such sources (Wikipedia) in legal dispute
resolution. Acer India and Hewlett Packard / Lenevo principles make it
clear that on this score, the trial Court fell in error i.e., fell in error in relying
on Wikipedia and therefore, the matter has to go back to trial Court to
consider the matter afresh de hors Wikipedia keeping in mind the caveat
put in place by Hon'ble Supreme Court in Acer India as well as Hewlett
Packard / Lenevo cases.
16. The next point turns on case laws. This again is a point which is
clear from the records as paragraph 21 of the impugned order of the trial
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Court reads as follows:
'21. The Counsel for Petitioner relied on the following
judgments Nazir Khan and Ors Vs.State of Delhi reported in (2003) 8
SCC 461, AIR 2003 SC 4427, Kedar Nath Singh Vs. State of Bihar,
reported in 1962 AIR 955, 1962 SCR Supl(2) 769. Shreya Singhal V.s
Union of India reported in (2015) 5 SCC 1: AIR 2015 SC 1523 dealt
with Article 19 of the Constitution – Rigth to Freedom of speech and
Expression are not applicable to the case on hand since here the facts
are completely different.'
17. There is no discussion whatsoever about the facts of the case laws
that have been relied upon or pressed into service. We express no opinion
on the applicability or merits of the case laws that have been pressed into
service but we only proceed on the celebrated and time-honoured oft-quoted
Padma Sundara Rao Vs. State of Tamil Nadu case rendered by a Hon'ble
Constitution Bench and reported in (2002) 3 SCC 533: 2002 SCC OnLine
SC 334. Padma Sundara Rao is an authority for the proposition as to how
a precedent cited has to be dealt with by a Court. Padma Sundara Rao
having been rendered by a Constitution Bench is not merely a ratio but it is
a declaration of law. In Padma Sundara Rao case, the issue is whether
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after quashing of the notification under Section 6, fresh period of limitation
was available to the State Government to issue another notification under
Section 6. The principle which we are concerned with is articulated in
paragraph 9 of Padma Sundara Rao and the same reads as follows:
'9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact situation
of the decision on which reliance is placed. There is always peril in
treating the words of a speech or judgment as though they are words
in a legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case,
said Lord Morris in Herrington v. British Railways Board [(1972) 2
WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility,
one additional or different fact may make a world of difference
between conclusions in two cases.'
Therefore, on this point also the matter has to go back to the trial Court for
the learned trial Court to look into the case laws pressed into service as the
case laws pressed into service by the petitioner before the trial court /
appellant herein, are renderings of Hon'ble Supreme Court and they have
been side stepped in one go saying the facts are different without saying
how and why. If a case law is distinguished on facts, there should be some
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discussion on how facts are different though it can be terse or epigrammatic
but in the case on hand the impugned order is silent on this.
18. This takes us to the third point. A careful perusal of the impugned
order and more particularly paragraph 13 thereat makes it clear that the
appellant raised the point regarding statement of witnesses (LWs 4, 8, 9 and
10) not being supplied to the appellant and appellant has also predicated this
argument on violation of right to fair trial traceable to Article 21 of
Constitution of India. This has been captured in Paragraph 13 of impugned
order. However the trial Court while answering this point has held as
follows:
'2. The LWs 4, 8, 9,10 are all protected witnesses and their
names and identity are blocked. This Court has passed an order in
C.M.P.No.120/2022 dated 24.03.2022 wherein LW 4,8,9,10 are being
declared as Protected witnesses.'
19. In this regard, we deem it appropriate to clarify that protected
witnesses is a concept, which is covered by Section 44 of UAPA and
Section 17 of NIA Act. There is no disputation, contestation or
disagreement before us that these two provisions are in pari metria.
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Therefore, we deem it appropriate to reproduce Section 44 of UAPA which
reads as follows:
'44. Protection of witnesses.—
(1) Notwithstanding anything contained in the Code, the
proceedings under this Act may, for reasons to be recorded in
writing, be held in camera if the court so desires.
(2)A court, if on an application made by a witness in any
proceeding before it or by the Public Prosecutor in relation to such
witness or on its own motion, is satisfied that the life of such witness
is in danger, it may, for reasons to be recorded in writing, take such
measures as it deems fit for keeping the identity and address of such
witness secret.
(3) In particular, and without prejudice to the generality of
the provisions of sub-section (2), the measures which a court may
take under that sub-section may include—
(a) the holding of the proceedings at a place to
be decided by the court;
(b) the avoiding of the mention of the name and
address of the witness in its orders or judgments or in
any records of the case accessible to public;
(c) the issuing of any directions for securing that
the identity and address of the witness are not
disclosed;
(d) a decision that it is in the public interest to
order that all or any of the proceedings pending before
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such a court shall not be published in any manner.
(4) Any person, who contravenes any decision or direction
issued under sub-section (3), shall be punishable with imprisonment
for a term which may extend to three years, and shall also be liable
to fine.'
20. A careful perusal of Section 44 makes it clear that all this pertains
to protecting the identity of the witnesses who make the statement and it
really has nothing to do with supply of the statements to the accused.
21. In this context, we also deem it appropriate to remind ourselves
that as regards Section 227 of Cr.P.C, which is captioned 'Discharge', a trial
Court while entering upon a legal drill of examining a discharge plea should
go by the record of the case and the documents submitted therewith. In the
case on hand, it is therefore imperative that statements of LWs 4, 8, 9 and 10
have to necessarily be looked into nay imperative.
22. In this case, there is yet another strong reason for remand and that
is because of an order by trial Court post impugned order. There is no
disputation that the trial Court post impugned order in and by an order dated
28.03.2023 made in Crl.M.P.No.282 of 2023 moved under Section 207 of
Cr.P.C directed the statements of the aforementioned witnesses, namely LWs
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4, 8, 9 and 10 to be furnished to the accused. This means that a re-look at
the impugned order becomes imperative. In this regard, we also deem it
appropriate to record that learned counsel for appellant submits on
instructions that the statements are yet to be supplied. Let the statements be
supplied and then there be a re-look.
23. This takes this order to the last point which turns on extraneous
material. In this regard, the most relevant paragraph is paragraph 12 of the
impugned order and the same reads as follows:
'12. The establishment of Islamic State in India would
definitely promote enmity between two groups on the basis of
religion and thereby the Section (ii) and 153A, Section 153B of the
Indian Penal Code are attracted
[15. Terrorist act – 4[(1)] whoever does any act with intent
to threaten or likely to threaten the unity, integrity, security
5[economic security,] or sovereignty of India or with intent to strike
terror or likely to strike terror in the people or any section of the
people in India or in any foreign country,-'
24. It will be clear from the allusion and narrative supra that as
regards charge under UAPA (excluding the charges under IPC) only charge
against the appellant before us, who is A3 before the trial Court, is under
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Section 13(1)(b) of UAPA which finds its slot under Chapter III captioned
'OFFENCES AND PENALTIES' but Section 15 captioned 'Terrorist Act'
finds its slot under Chapter IV captioned 'PUNISHMENT FOR
TERRORIST ACTIVITIES'. Therefore, placing of reliance on Section 15
of UAPA by the trial Court in the impugned order for negativing the
discharge plea of the appellant is clearly flawed besides being reliance on
extraneous material and material which is not relevant to the case on hand.
25. As already alluded to supra, very similar to Point No.1, as Points
2 to 4 also turn on records, learned Prosecutor really does not have much of
a say in terms of arguments.
26. In the light of the narrative, discussion and dispositive reasoning
thus far, we make the following order:
a) The impugned order i.e., order dated 09.02.2023 made
in Crl.M.P.No.738 of 2022 in Spl.S.C.No.26 of 2022 by the
Special Court under the National Investigation Agency Act, 2008
(Sessions Court for Exclusive Trial of Bomb Blast Cases),
Chennai at Poonamallee, Chennai is set aside. We make it clear
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that the impugned order of the trial Court is set aside on the
aforementioned limited grounds so as to provide for remand by
this Court and re-look at the order by thes trial Court;
b) The trial Court shall now take up the discharge plea of
the appellant post supply of statements of LWs 4, 8, 9 and 10
pursuant to order dated 28.03.2023 made in Crl.M.P.No.282 of
2023 and dispose of the discharge plea afresh as expeditiously as
the business of the trial Court would permit;
c) We make it clear that at the time of re-look post remand,
the aforementioned observations shall be borne in mind but as
regards merits of the discharge plea, we make it clear that legal
drill of the trial Court will be uninfluenced and untrammelled by
this order;
d) It is open to the appellant as well as prosecution to raise
additional or new grounds qua discharge and though obvious, it
will be open to the trial Court to consider the same on its own
merits and in accordance with law.
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Captioned Criminal Appeal is disposed of in the aforesaid manner.
Consequently captioned Crl.M.P. is disposed of as closed.
(M.S.,J.) (M.N.K.,J.)
13.04.2023
Index: Yes
Speaking order
Neutral Citation: Yes
gpa
To
1. The Sessions Court for Exclusive Trial
For Bomb Blast Cases, Chennai
Poonamallee, Chennai
2. The Public Prosecutor
Madras High Court, Chennai
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Crl.A.No.401 of 2023
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
gpa
Crl.A.No.401 of 2023
& Crl.M.P.No.5071 of 2023
in Crl.A.No.401 of 2023
13.04.2023
https://www.mhc.tn.gov.in/judis
