Madras High Court
M.Mohamed Abbas vs The State Represented By on 1 August, 2023
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.07.2023
DATE OF DECISION : 01.08.2023
CORAM :
The Hon'ble Mr.JUSTICE M.SUNDAR
and
The Hon'ble Mr.Justice R.SAKTHIVEL
Criminal O.P.No.12229 of 2023,
Criminal Appeal No.678 of 2023
and
H.C.P.No.1114 of 2023
and
Crl.M.P.No.7402 of 2023 in Crl.O.P.No.12229 of 2023
and
Crl.M.P.No.8903 of 2023 in HCP No.1114 of 2023
Crl.O.P.No.12229 of 2023 :
M.Mohamed Abbas .. Petitioner
Vs.
1.The State represented by
The Superintendent of Police,
National Investigation Agency,
NIA, Police Station,
Ministry of Home Affairs,
Government of India,
New Delhi.
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2.The Inspector of Police,
National Investigation Agency,
Chennai Branch,
Chennai
(RC-42/2022/NIA/DLI)'
3.Shri Vipul Alok,
Under Secretary,
CTCR Division,
Ministry of Home Affairs,
North Block, New Delhi. .. Respondents
Criminal Appeal No.678 of 2023 :
M.Mohamed Abbas .. Appellant
Vs.
Union of India,
represented by
The chief Investigating Officer,
The Inspector of Police,
National Investigation Agency,
Chennai Branch,
Chennai
(RC-42/2022/NIA/DLI) .. Respondent
H.C.P.No.1114 of 2023 :
M.Syed Mohamed Abuthahir .. Petitioner
Vs.
1.Union of India, represented by
Chief Investigation Officer/
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The Inspector of Police,
National Investigation Agency,
Branch Office, Chennai
in RC No.42/2022/NIA/DLI
2.The Superintendent of Prison,
Central Prison, Puzhal,
Chennai. .. Respondents
Criminal Original Petition No.12229 of 2023 has been filed under
Section 482 of Criminal Procedure Code seeking to call for the records in
Crime No.RC-42/2022/NIA/DLI on the file of the second respondent
police and quash the same as against the petitioner and thus render
justice.
Criminal Appeal No.678 of 2023 has been filed under Section 21 of the
National Investigation Agency Act, 2008 to call for the records and set
aside the order dated 20.06.2023 in Crl.M.P.No.893/2023 on the file of
learned Special Court under National Investigation Agency Act, 2008
(Sessions Court for Exclusive Trial of Bomb Blast Case) Poonamallee,
Chennai in Crime No.RC-42/2022/NIA/DLI on the file of the respondent
police and enlarge the appellant on bail and thus render justice.
H.C.P.No.1114 of 2023 has been filed under Article 226 of the
Constitution of India seeking direction to respondents 1 and 2 to produce
the body or person of the petitioner's brother namely M.Mohamed Abbas,
S/o Mohamed Zakaria aged about 44 years before this Hon'ble Court and
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set him at liberty by quashing the impugned remand order dated
09.05.2023 so far as him concerned passed by learned Special Court NIA
Cases (Sessions Court Exclusive Trial of Bomb Blast Cases, Chennai)
Poonamallee, Chennai in R.C.No.42/2022/NIA/DLI dated 19.09.2022 on
the file of the first respondent and pass such further and other orders as
this Hon'ble Court may deem fit and proper in the circumstances of the
case and thus render justice.
For Petitioner
in Crl.OP No.12229 of 2023 /
For Appellant
in Crl.A.No.678 of 2023 : Mr.R.Vivekananthan
Mr.S.Jim Raj Milton
Ms.M.Krithika
Mr.S.Parthasarathy
For Petitioner
in HCP No.1114 of 2023 : Mr.M.Ajmal Khan,
Senior Advocate
instructed by
Mr.C.M.Arumugam
Mr.S.Senthil Murugan
Mr.N.M.Shajahan
For all Respondents : Mr.Tushar Mehta,
in Crl.O.P., Solicitor General of India
for sole respondent Mr.S.V.Raju,
in Crl.A. and Addl. Solicitor General of India
for first respondent in HCP :Mr.AR.L.Sundaresan,
Addl. Solicitor General of India
for High Court of Madras
Mr.R.Karthikeyan,
Special Public Prosecutor (NIA)
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Mr.B.Mohan,
Special Public Prosecutor (NIA)
Mr.N.Baaskaran
Special Public Prosecutor (NIA)
For 2nd Respondent in HCP : Mr.E.Raj Thilak,
Additional Public Prosecutor
----
COMMON ORDER
M.SUNDAR, J.
Captioned matters will be governed by this common order.
FACTUAL MATRIX :
2 Factual matrix in a nutshell, i.e., facts that are essential for
appreciating this common order are that the petitioner Mr.M.Mohamed
Abbas is a practicing Advocate [to be noted, Mr.M.Mohamed Abbas is
the petitioner in captioned Crl.O.P.No.12229 of 2023, appellant in
captioned Crl.A.No.678 of 2023 and Mr.M.Syed Mohamed Abuthahir
(Mr.M.Mohamed Abbas's brother) is the petitioner in captioned HCP
No.1114 of 2023 but this court shall be referring to him as 'petitioner' in
this common order for the sake of convenience and clarity]; that petitioner
enrolled as an Advocate in the Bar Council of Tamil Nadu on
01.11.2006; that the petitioner has been practicing as a Lawyer for over
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and HCP No.1114 of 2023
16 ½ years now predominantly in Madurai Bench of Madras High Court
and in the District & Sessions Courts, Madurai; that petitioner's father-in-
law Mr.Mohamed Ali Jinnah is also a practicing Advocate in Madurai;
that on 16.09.2022, Under Secretary with the Ministry of Home Affairs,
New Delhi directed the 'National Investigation Agency' [hereinafter 'NIA'
for the sake of brevity] to register a 'First Information Report' ['FIR' for
the sake of brevity] based on what is described as credible information;
that pursuant to such directive, NIA registered FIR No.RC-
42/2022/NIA/DLI against 13 named individuals and other unknown
persons for suspected offences under Sections 120B, 153A and 153AA of
'The Indian Penal Code (45 of 1860)' [hereinafter 'IPC' for the sake of
brevity] and Sections 13, 17, 18, 18B, 38 and 39 of 'the Unlawful
Activities (Prevention) Act, 1967 [Act 37 of 1967]' {hereinafter 'UAPA'
for the sake of brevity}.
3 The crux and gravamen of the aforementioned FIR is, the
accused persons are office bearers of 'Popular Front of India' ('PFI' for the
sake of brevity) which is registered as a society under the Societies
Registration Act, 1860 (Act 21 of 1860) vide Registration
No.S/226/Dist.South/2010 in Delhi; that extremist ideology is being
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spread; that alleged activities include planning of unlawful acts, planning
of terrorist acts, organising marches, raising of funds for committing
terrorist activities and recruitment of members for such activities; that the
FIR goes on to say that such activities inter-alia cause communal
disharmony and ill feelings among members of different religions; that
there is credible information that PFI has been clandestinely associated
and is extending support to another terrorist organization; that thereafter,
i.e., post FIR, on 28.09.2022, the Central Government declared PFI as a
'unlawful association' within the meaning of Section 2(1)(p) of UAPA;
that such declaration is under Section 3(1) of UAPA, for a period of five
years; that RC No.42/2022/NIA/DLI (CNR No.TNCH06-000894-2023)
{hereinafter 'said case' for the sake of brevity and convenience} is now on
the file of 'The Special Court under the National Investigation Agency
Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases)
Chennai at Poonamallee, Chennai-56' ['hereinafter 'trial court' for the sake
of convenience and clarity]; that one Thiru Jinnah was summoned by NIA
on 05.03.2023 in said case; that on 06.03.2023, petitioner made a post in
a social media platform (Face Book) inter-alia alleging that Thiru Jinnah
was subjected to custodial torture and condemned the same; that the
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petitioner filed a memo of appearance for Thiru Jinnah in said case; that
on the very next day, i.e., 07.03.2023, NIA sought permission from
authorities concerned for intercepting petitioner's phone conversations;
that on 17.03.2023 NIA had filed a final report in trial court against 10
out of 13 named accused in the FIR (after completion of investigation).
4 On 30.03.2023, based on a complaint from Superintendent
of Police, NIA, a case vide Crime No.293 of 2023 on the file of
Thallakulam Police Station, Madurai City came to be registered against
the petitioner for an alleged offence under Section 505(1)(b) of IPC qua
the aforementioned social media post on 06.03.2023; that on 27.04.2023,
NIA had filed a petition before trial court under Section 173(8) of 'the
Code of Criminal Procedure, 1973 (2 of 1974)' [hereinafter 'Cr.P.C' for
the sake of brevity and convenience] vide Crl.M.P.No.749 of 2023 for
further investigation as against accused persons, namely O/o PFI at Delhi
and Purasaiwakkam, Chennai (A-10), A.S.Ismail @ Appamma Ismail (A-
11), M.Mohammed Ali Jinnah (A-12), Advocate Mohammed Yusuf (A-
14) and others; that on 04.05.2023, 'Investigation Officer' (hereinafter 'IO'
for the sake of brevity and convenience) [to be noted, Inspector of Police
Mr.V.Arun Magesh, NIA is the IO] filed a memo in trial court arraying
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the petitioner and others as accused persons; that on the same day, i.e.,
on 04.05.2023, IO filed a petition in trial court requesting for search
warrants qua petitioner; that on 05.05.2023, search warrants were issued
by trial court; that on obtaining search warrants, NIA conducted searches
in the residence and farm house of petitioner; that on 08.05.2023, on
receipt of final report / charge sheet, trial court had taken cognizance of
the same and assigned Special S.C.No.1 of 2023; that on 09.05.2023, the
petitioner was arrested; that a remand prayer was made by NIA in trial
court qua petitioner and four others (five in all); that trial court acceded to
the remand request; that trial court vide order dated 09.05.2023
remanded the petitioner till 23.05.2023; that petitioner filed a bail petition
dated 16.05.2023 vide Crl.M.P.No.893 of 2023 inter-alia under Section
439 of Cr.P.C read with Section 43D of UAPA; that NIA filed objections
dated 08.06.2023; that trial court in and by 'order dated 20.06.2023 in
Crl.M.P.No.893 of 2023' dismissed the bail plea after hearing both sides
(hereinafter 'impugned order' for the sake of brevity, convenience and
clarity); that captioned criminal appeal (Crl.A.No.678 of 2023) has been
filed in this Court on 23.06.2023 under section 21(4) of 'The National
Investigation Agency Act, 2008 [Act 34 of 2008]' {hereinafter 'NIA Act'
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for the sake of convenience}; that aforementioned 'FIR No.RC-
42/2022/NIA/DLI dated 19.09.2022' is sought to be quashed (insofar as
the petitioner is concerned) in captioned Crl.O.P.No.12229 of 2023 and
therefore, the aforementioned FIR shall hereinafter be referred to as
'impugned FIR' for the sake of convenience; that in the interregnum, on
22.05.2023, captioned HCP No.1114 of 2023 has been filed in this court
by brother of the petitioner [Thiru M.Syed Mohamed Abuthahir] inter-
alia saying that the remand order dated 09.05.2023 made by the trial
court is bad; that this HCP before being assigned a number was listed
before this Court for orders regarding maintainability; that this Court in
and by order dated 21.06.2023 directed the Registry to assign a number
if otherwise in order, preserving rights of respondents (State) to raise the
issue of maintainability; that this maintainability order was made by this
court inter-alia on a prima facie view that paragraph 71 of Gautam
Navlakha case being Gautam Navlakha Vs. National Investigation
Agency reported in 2021 SCC OnLine SC 382 carved out two
exceptions qua Serious Fraud Investigation Office principle [Serious
Fraud Investigation Office Vs. Rahul Modi reported in (2019) 5 SCC
266] more particularly paragraphs 19 and 21 thereat; that captioned
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matters were tagged considering the common factual matrix and owing to
many arguments advanced being either dovetailed or intertwined on facts
and law.
PREFACE :
5 At the outset, it is deemed appropriate to set out that this
court is conscious of the obtaining legal position that determinants /
parameters qua a quash plea under Section 482 of Cr.P.C. (to be noted,
quash of FIR) and determinants / parameters qua a bail plea more
particularly bail plea under section 439 of Cr.P.C read with Section 43D
of UAPA are vastly different, the dynamics and dimensions of tests also
being so different that some are almost bipolar opposites. It is deemed
appropriate to further set out that all the parties before this Court (both
sides) also made it clear that this is the obtaining position qua legal drill
on hand and arguments were advanced on this platform. Be that as it may
(as already alluded to supra) owing to common factual matrix and several
legal propositions being dovetailed and some being inextricably
intertwined, captioned matters were tagged.
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SUBMISSIONS OF PETITIONER :
6 The adding (by taking the further investigation route, i.e.,
section 173(8) of Cr.P.C) and arraying of petitioner as A-17 in impugned
FIR is actuated by mala fide and malice as it was solely owing to the post
made by the petitioner in social media, i.e., 'Face Book' [hereinafter 'FB'
for the sake of brevity] on 06.03.2023 about alleged mistreatment /
custodial torture of a accused in said case; that FIR is very generic and
does not disclose any specific act much less overt act qua petitioner (now
A-17) and that the malice theory is buttressed by plain chronology itself,
i.e., NIA seeking permission to intercept petitioner's phone calls on
07.03.2023 immediately after the FB post on 06.03.2023. It was pointed
out that the Superintendent of Police (NIA) had lodged a complaint
regarding the FB post with the jurisdictional police which had taken the
same on file vide Crime No.293 of 2023 for an alleged offence under
Section 505(1)(b) of IPC. It was pointed out that further investigation
under Section 173 of Cr.P.C was sought only on 27.04.2023 after the
face book post, after seeking permission to intercept petitioner's phone
calls and after alleged complaint with the jurisdictional police on
30.03.2023.
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7 It was argued that another Advocate has also been roped in
and that mala fide theory is buttressed by this factum which demonstrates
that the intention is to intimidate, harass and instill fear in the minds of
members of the Bar who appear in PFI and like matters. In support of
this argument, learned counsel gave a list of as many as 10 cases in which
the petitioner has entered appearance and is defending various accused in
PFI / UAPA matters. It was pointed out and emphasized by learned
counsel for petitioner that while originally the petitioner was not even
named in the impugned FIR but post FB post further investigation route
was taken and NIA has come up with a completely new theory that the
petitioner is an important core team leader of PFI and that he had worked
for organising training camps for PFI cadres to target persons who are
against the ideology of PFI. The crux and gravamen of this limb of
argument is, if arraying the petitioner as A-17 in trial court is not a
product of malice, such a wholly new theory would not have propped up
as the impugned FIR would not have been filed without even knowing
about a person who is the core team leader. To put it differently, the crux
of the argument is, while the impugned FIR does not even mention the
name of A-17, post FB post and criminal complaint by Superintendent of
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Police of NIA, the petitioner who is a lawyer and who is defending other
accused has been portrayed as a important core team leader.
8 It was also submitted that there is no fresh material and there
is literally no material on record to connect the petitioner with other
accused persons in said case (RC No.42/2022/NIA/DLI). It was argued
that there is no material as regards Section 13 of UAPA and as regards
Section 18, it relates to conspiracy and there is no material qua petitioner
and in this regard, it was urged that the petitioner is a lawyer and he had
only expressed his opinion besides assisting the accused but arraying the
Advocate as co-accused by taking the further investigation route is
intolerant intimidation by prosecution and is a infraction of sanctus
constitutional safeguards.
9 On bail plea, it was argued that Section 43D(5) proviso of
UAPA becomes inapplicable when there is violation of Part III of the
Constitution and in the case on hand, there is violation of Part III as
grounds of arrest had not been informed to the petitioner and his right to
consult a legal practitioner had been denied. In this regard, it was pointed
out that though it is now contended by NIA that grounds of arrest were
informed, there is no mention about when and where it was informed.
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10 It was emphasized that a careful perusal of the objections of
NIA will make it clear that there is no incriminating material as against
the petitioner. The factum that the President of Madurai Bench High
Court Advocates Association and Secretary of the Madurai Bar
Association, Madurai both being duly recognised Bar Associations came
before the Court and put it in writing that the petitioner is a member of
their respective associations, a regular practicing lawyer seen in the
context of unanimous resolutions condemning arrest of the petitioner
have been made by respective Bar associations itself will demonstrate
intolerant intimidation by prosecution is learned counsel's say.
SUBMISSIONS OF RESPONDENTS :
11 The contention that arraying petitioner as A-17 in said case
is actuated by malice is unfounded. In any event, on a demurrer, malice is
a weak ground when it comes to a FIR quash plea. It was emphasised
that malice can be resorted to as a ground only if it is demonstrated that
no case has been made out. As a buttressing argument, it was submitted
that when a plea of FIR quash is predicated on malice / mala fide, the
officer concerned should have been arrayed as one of the respondents by
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name. Absent such arraying, a FIR quash plea cannot be predicated on
malice is learned Solicitor's say. As another buttressing alternate
argument, it was submitted that if malice is pleaded, the accused should
only seek transfer of investigation. It was also emphasized that adequate
material is available, i.e., material in the nature of audio clips (intercepts
of petitioner's phone conversation) [one with his client A-3 and another
with a counsel], 2 pen drives, a cell phone seized from petitioner's
residence and sharp weapons (Knives) seized from petitioner's farm
house.
12 As regards the bail plea, it was contended that there is no
violation of Part III of the Constitution as Article 22(1) talks about
'grounds for such arrest' and 'being informed'. It was contended that
petitioner was informed but he refused to sign the search warrant and
arrest memo. In this regard, it was submitted that grounds of arrest were
informed to the petitioner in the presence of independent witnesses and
the same was also videographed. Reliance was placed on proviso to
Section 43D(5) and it was contended that bail shall not be granted as the
accusation against the petitioner is true as would be evident from perusal
of case diary. It was also pointed out that the petitioner has not
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cooperated with search, he is likely to abscond and also tamper with
witnesses. Reliance was placed on audio clips referred to supra and it was
emphasized that the same form part of the case diary. In this view of the
matter, learned Solicitor requested this court to hear the audio clips (but
in the chambers) saying that investigation is progressing and it cannot be
disclosed to the accused at this stage. A further request made with
specificity in this regard is that the contents of audio clips may please not
be set out in order of this court. Further request made by learned Solicitor
with specificity is to ensure that there is no whisper about audio clips in
the order of this Bench. The respondent in captioned Criminal Appeal has
filed its objections wherein it has inter-alia been contended that
investigation qua petitioner is in initial stages, placing reliance on
National Investigation Agency Vs. Zahoor Ahmad Shah Watali
reported in (2019) 5 SCC 1, it has been contended that all matters (8 in
number) to be considered for deciding a bail application (restated therein)
when applied to case on hand point towards rejection of bail plea and that
the allegations of mala fide / malice are made by the petitioner with
ulterior motives.
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13 To be noted, the above paragraphs under the captions
'Submissions of Petitioner' and 'Submissions of Respondents' capture the
broad summation of rival submissions. Therefore, the case laws cited for
propositions and principles by both sides will be adverted to and
discussed while setting out discussion and dispositive reasoning (infra).
Likewise, a little more elaboration / granular particulars regarding some
of the arguments captured supra will also be adverted to in the course of
discussion and dispositive reasoning.
DISCUSSIONS AND DISPOSITIVE REASONING :
14 As would be evident from the submissions set out supra, the
sheet anchor of petitioner's plea to quash the impugned FIR is mala fide.
To put it differently, the petitioner's campaign against the impugned FIR
is predicated on the sole ground that he has been added as A-17 post
further investigation maliciously with ulterior motive for wrecking
vengeance for the FB post made by him on 06.03.2023. In legal parlance,
this sheet anchor argument is predicated on one of the seven illustrations
adumbrated in oft quoted Bhajan Lal case being State of Haryana Vs.
Bhajan Lal reported in 1992 Supp (1) SCC 335. There is no disputation
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or contestation before this Court that Bhajan Lal principle qua FIR quash
holds the field (albeit with some evolved views) and seven illustrations
adumbrated in paragraph 102 thereat continue to operate when it comes
to testing a plea for quash of FIR. In this view of the matter, we deem it
appropriate to extract and reproduce illustration No.(7) as set out by
Hon'ble Supreme Court in Bhajan Lal in paragraph 102 and the same
reads as follows:
'(7)Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due
to private and personal grudge.'
15 We are conscious of the factual matrix scenario that on facts,
in Bhajan Lal, the plea of mala fide / malice pertains to alleged false,
vexatious charges of corruption, venality against a person holding a high
office, enjoying a respectable status with the intention of sullying his
character, injuring his reputation and exposing him to social ridicule with
a view to spite him on account of some personal rancour, predilections
and past prejudices. To be noted, though Bhajan Lal is a oft quoted case
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law, we have referred to facts (albeit very briefly) in the light of time
honoured declaration of law by a Constitution Bench in the celebrated
Padma Sundara Rao case [Padma Sundara Rao Vs. State of Tamil
Nadu reported in (2002) 3 SCC 533] wherein there was declaration of
law as regards how a citation / case law should be referred to by a Court.
In Padma Sundara Rao, Hon'ble Supreme Court declared that ideally
Courts should refer to the facts while referring to case laws, as a change
in few facts or some times even a word can make a world of difference to
applying the ratio. Be that as it may, it may not be necessary to be
detained further on this aspect of the matter as in the case on hand, there
is no disputation that mala fide / malice is available as a ground for a FIR
quash plea. However, the contestation is on different facets and it is two
fold. One is, mala fide is a weak ground and in any event, it can be
pressed into service only after demonstrating that no case has been made
out. The second facet of contestation (on a demurrer) is, mala fide is also
a matter for trial and therefore, a FIR quash plea cannot be predicated on
malice / mala fide as sole ground. This Bench deems it appropriate to
record that while learned Additional Solicitor General projected the
second facet in this form, when put to him, learned Solicitor submitted
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that he would take a slightly nuanced approach and submitted that mala
fide or animus qua prosecution is not relevant if on the basis of the
allegations in the complaint, a prima facie case is made out.
16 In support of this argument, learned Solicitor pressed into
service P.P.Sharma case [State of Bihar Vs. P.P.Sharma reported in
1992 Supp (1) SCC 222]. Facts in P.P.Sharma case are, P.P.Sharma was
the Managing Director of 'Bihar State Cooperative Marketing Union
Limited' ['BISCO' for the sake of brevity] its function is to supply
fertilisers to farmers through its depots and godowns. One Rajasthan
Multi Fertiliser Pvt. Ltd. had supplied fertiliser to BISCO. Later, fertilizer
supplied was found to be sub-standard. In this regard, a FIR came to be
registered against P.P.Sharma, who filed writ petition before Patna High
Court with a prayer to quash the FIR and police reports. The writ
petitions filed by the accused persons in the said case were allowed by
Patna High Court, against which State approached Hon'ble Supreme
Court. Our attention was drawn to paragraphs 24 and 55 of P.P.Sharma
to say that an IO adopting a threatening posture from the very beginning,
allowing informant to withhold relevant files and other attendant facts do
not tantamount to mala fide. As regards paragraph 55, the same was
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adverted to say that officer concerned should have been made a Eo-
nomine party respondent to canvass mala fide.
17 State of Maharashtra Vs. Ishwar Piraji Kalpatri reported
in (1996) 1 SCC 542 was pressed into service to say that exercise of
jurisdiction under Section 482 of Cr.P.C to quash prosecution should not
be resorted to except in extraordinary circumstances. The facts in this
case are, the respondent in the said case was serving in police force, he
joined as a PSI Cadet in 1966, held various posts and in 1981, he was
promoted to the post of Assistant Commissioner of Police. A FIR was
registered against him under the Prevention of Corruption Act, 1947 and
investigation was on. Government of Maharashtra had accorded sanction
for prosecution of respondent. A charge sheet was filed against him. The
respondent filed a Writ Petition (Criminal) before the High Court which
was allowed despite objection by the appellant. Challenging the order of
High Court, State approached Hon'ble Supreme Court.
18 It is reiterated that factual matrix in case laws are set out
(albeit in a nutshell) owing to Padma Sundara Rao principle which has
been alluded to and delineated elsewhere supra in this order.
19 Reverting to case laws / mala fide, Monica Kumar (Dr.) Vs.
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State of Uttar Pradesh reported in (2008) 8 SCC 781 was relied on and
our attention was drawn to paragraph 37 thereat to say that if the
complaint is correct, offence has to be established in a Court of law and
therefore, it is the correctness of the complaint which is to be tested. The
facts in Monica Kumar case are that appellants' father Dr.Narendra
Kumar was working as Professor/Medical Director of Neonatal Intensive
Care Unit [NICU] and also having medical practice at California. Both
the appellants were born in California and completed their schooling.
They got admission in MBBS course in the year 1996 in Santosh Medical
College, Ghaziabad in NRI quota, after remitting necessary fees towards
capitation fees, additional hostel fees and security deposits for one year.
College took a loan of Rs.25 lakhs on interest from the father of the
appellants and its payment was assured by a handwritten slip. When
father of the appellants demanded repayment of loan from the second
respondent, a dispute arose between them because of which second
respondent started harassing the appellants and in the results declared in
July 2000, the first appellant failed in both theory papers of
Pharmacology and she was not allowed to appear in two subsequent
supplementary examinations as well as in Final Professional MBBS Part-I
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Examination. Thereafter, there were some legal proceedings between
parties, having failed in all his attempts, second respondent in collusion
with concerned SHO got false and frivolous FIRs registered against
appellants. The appellants preferred two separate petitions before the
High Court under Section 482 of Cr.P.C to quash the FIRs and to entrust
the further investigation to CBI. As the High Court dismissed the
petitions, the appellants were before Hon'ble Supreme Court which
allowed the appeal.
20 Learned Solicitor with the intention of not pressing into
service multiple case laws for the same proposition, pressed into service
case laws alluded to supra for mala fide point though learned Prosecutors
in the compilation have placed before this Bench many other case laws
for the same proposition.
21 This Court reminds itself that test in quash proceedings is to
see uncontroverted allegations in the FIR / complaint without adding or
subtracting to the same without looking into extraneous material and
examining whether a case has been made out. This court also deems it
appropriate to adopt the principle that quashing of FIR should be resorted
to only in extraordinary and exceptional circumstances as the plea of
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quash in the case on hand is predicated solely on mala fide / malice. In
this view of the matter, it may not be necessary to be detained further in
this aspect of the discussion. It will suffice to say that from the narrative
thus far, the rival submissions and the discussions supra, this is a fit case
to leave the question of mala fide open to be tested in trial. As an
illustration in support of this view which we are taking, one point urged is
that the request for intercepting petitioner's phone conversations itself was
made only on 07.03.2023, a day after the aforesaid FB post was made by
the petitioner on 06.03.2023 and this was followed by a criminal
complaint lodged in the jurisdictional police station (Thallakulam Police
Station, Madurai City) vide Crime No.293/2023 for an alleged offence
under Section 505(1)(b) of IPC and that the sequence itself shows that
adding of petitioner smacks of mala fide. Learned Solicitor submitted to
the contrary by saying that the prosecution had enough material even
prior to this but was going slow as the petitioner is an Advocate and
therefore, it cannot be gainsaid that adding of the petitioner as A-17 was
actuated solely by FB post. In this regard, it is also important to notice
that learned Solicitor very fairly submitted that the picture is hazy at the
moment and therefore, mala fide / malice is too weak a ground and it was
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further submitted that mala fide is a last resort of a losing litigant.
Though we refrain ourselves from expressing any opinion on this last
point (submission), i.e., submission that mala fide is the last resort of a
losing litigant, as regards other disputations, it emerges clearly that it
turns heavily on factual contestations which need to be examined only in
trial. It has been made clear that determinants / parameters for a FIR
quash plea and a bail plea are vastly different, dynamics and dimensions
of tests are diverse. To be noted, as regards the submission that
accusation against petitioner is hazy at the moment has been accepted for
negativing the quash plea and relegating the petitioner to raise the same in
trial but the same point has operated very differently in the bail plea legal
drill as would be evident from allusion and delineation elsewhere infra in
this order. Likewise, while uncontroverted reading of FIR in quash plea
has gone against the petitioner and we have said that he has to stand trial,
when it comes to prima facie truth of accusation, i.e., reasonable grounds
for believing that there is prima facie truth in the accusation against the
petitioner, on a perusal of case diary (to be noted, FIR forms part of case
diary and there is no section 173 report qua petitioner as charge sheet
against the petitioner who is A-17 is yet to be filed), the same works
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differently in the bail plea as would be evident from discussion and
dispositive reasoning in the latter part of this order infra.
22 As regards petitioner being a practicing Advocate, it was
submitted by learned Solicitor that the petitioner would not get any
immunity or special treatment. In this regard, it was made clear in the
hearing that the argument is not tested on the basis of any immunity for a
lawyer but on the question as to whether the petitioner is being
intimidated for appearing in PFI matters and making a FB post regarding
alleged mistreatment / custodial torture of one of the accused in the case
in which he is appearing as counsel for some of the accused. It was
further made clear that Bar is the mother of the Bench and a fearless Bar
is imperative for an independent judiciary and this is the principle on
which the argument is being tested (to be noted, the principle is not in
dispute and it is only intimidation / malice that is being subjected to
contestations / disputations). This is another reason why we deem it
appropriate to leave the question of mala fide open when the petitioner
stands trial. In this view of the matter, while we negative the prayer for
quashing the impugned FIR and while we refuse to quash the FIR, we
make it clear that the plea of mala fide / malice raised in the captioned
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Criminal O.P. (Crl.O.P.No.12229 of 2023) is left open to be tested in
trial, untrammeled by this order refusing to acceded to the quash plea. To
put it differently, it will be open to the petitioner to set up mala fide /
malice as one aspect of defence and if done so, trial court shall test the
same on its own merits as this order neither impedes nor serves as a
impetus to either side in deciding the malice issue by the trial court. Be
that as it may, for the sake of specificity, we make it clear that all
questions are left open qua mala fide / malice.
23 Reverting to three case laws pressed into service by
prosecution, namely P.P.Sharma, Ishwar Piraji Kalpatri and Monica
Kumar (Dr.), this Court has set out short facts and the principles supra
but this Court refrains from any discussion on the same so that the field is
wide open for the legal drill of testing mala fide as part of trial in the trial
court. This Court is of the considered view that this course would pave
way for trial court to test the matter untrammeled by this order. We are
adopting this approach as the quash plea is being tested not by negativing
or sustaining mala fide plea but by adhering to the principle that
uncontraverted averments in the complaint do not warrant quash of FIR
on the ground of mala fide at this stage.
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24 This takes the discussion to captioned criminal appeal which
pertains to bail.
25 As regards bail, a careful perusal of proviso to Section
43D(5) of UAPA besides sub sections (6) and (7) thereat make two
aspects of the matter clear. One aspect is, on a perusal of case diary or
report under Section 173 of Cr.P.C, i.e., charge sheet, if this court forms
a opinion that there are reasonable grounds for believing that accusations
against a person is prima facie true, bail plea should be negatived. To be
noted, in the instant case, there is no report under Section 173 Cr.P.C.,
charge sheet as against the petitioner (A-17 in trial court) is yet to be
filed. The charge sheet has been filed only against 10 out of 13 named
accused in the impugned FIR. Therefore, in the case on hand, it is perusal
of case diary alone. Be that as it may, it is deemed pertinent to mention
that this Court did peruse the final report (section 173 Cr.P.C) as against
the 10 named accused also as a matter of abundant caution though
further investigation itself was sought only after filing of this charge
sheet. To be noted, petition under Section 173(8) of Cr.P.C seeking
permission to conduct further investigation was filed on 27.04.2023 after
filing final report, i.e., charge sheet against 10 named accused on
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17.03.2023.
26 The second aspect is, aforementioned condition is in addition
to the other restrictions in Cr.P.C. It is clear from sub section (6) of
Section 43D that the restrictions qua granting of bail specified in sub
section (5) and proviso thereat is in addition to other restrictions qua a
regular Section 439 Cr.P.C (bail) legal drill. Sub Section (7) does not
come into play in the case on hand as that pertains to a person who is not
a Indian citizen and who has entered the Country unauthorisedly.
27 Reverting to the case on hand, we find that no overt act with
specificity has been set out qua petitioner. It has been averred that during
investigation of the case, it was revealed that the accused persons
(petitioner and four others who were added pursuant to further
investigation under section 173(8) Cr.P.C) hatched a criminal conspiracy
to commit certain acts preparatory to the commission of a terrorist act. It
has been averred that as a result of conspiracy, they conducted physical
efficiency classes to cadres, new recruits of PFI and that preparatory acts
qua commission to train PFI cadre and recruits to do away with persons
belonging to a particular religious group which is opposed to PFI
ideology. It has also been averred that investigation has also revealed that
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members of PFI organization raised funds with the intention to further the
activity of terrorist organization. The allegations are broad, generic and
no overt act qua petitioner has been set out with specificity. This has to be
seen in the context of the factum that recovery has been only long knives
and axe, that too not from residence but from farm house and petitioner is
contending that they are only agro / gardening equipments. To be noted,
contents of pen drive is not known, it has been sent for forensic
examination and nothing has brought out as regards the cellular phone
(described as cell phone).
28 As regards petitioner being a practicing lawyer, we find there
is no disputation or contestation on this factum. In this regard, the
President of a recognised Bar Association in Madurai Bench of Madras
High Court and Secretary of the recognised Bar Association in the
District and Sessions Court in Madurai have filed statements saying that
the petitioner is a regular practitioner with over 16 ½ years standing at
the Bar and that his father-in-law is also a very established lawyer.
Respondents have filed objections but a careful perusal of the two
objections filed by respondents brings to light that respondents have only
denied and disputed the averment that the petitioner is being victimised
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and is being framed for appearing in PFI cases. In other words, the
factual averments that the petitioner enrolled with the Bar Council of
Tamil Nadu on 01.11.2006, he is a regular practitioner and that his
father-in-law is a established Advocate are not subjected to disputation.
In this view of the matter, the regular parameters under Cr.P.C. and more
particularly parameters articulated by Hon'ble Supreme Court in
Hussainara Khatoon case {(1980) 1 SCC 81}, reiterated and restated in
Antil case being Satender Kumar Antil Vs. Central Bureau of
Investigation reported in (2022) 10 SCC 51 do not pose much of a
problem. In this regard, before going into the parameters adumbrated in
Hussainara Khatoon, we respectfully remind ourselves of paragraph 95
of Antil case where Arnab Manoranjan Goswami case [(2021) 2 SCC
427] and paragraph 67 thereat has been reiterated by Hon'ble Supreme
Court as it emphasizes Constitutional value of liberty which runs through
the fabric of Constitution, balancing of societal interest and investigation
of crime. Paragraph 95 of Antil case reads as follows:
95. This Court in Arnab Manoranjan Goswami v. State of
Maharashtra [Arnab Manoranjan Goswami v. State of
Maharashtra, (2021) 2 SCC 427 : (2021) 1 SCC (Cri) 834] ,
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has observed that : (SCC pp. 471-72, para 67)
“67. Human liberty is a precious constitutional
value, which is undoubtedly subject to regulation by
validly enacted legislation. As such, the citizen is
subject to the edicts of criminal law and procedure.
Section 482 recognises the inherent power of the High
Court to make such orders as are necessary to give
effect to the provisions of CrPC ‘or prevent abuse of
the process of any court or otherwise to secure the
ends of justice’. Decisions of this Court require the
High Courts, in exercising the jurisdiction entrusted to
them under Section 482, to act with circumspection.
In emphasising that the High Court must exercise this
power with a sense of restraint, the decisions of this
Court are founded on the basic principle that the due
enforcement of criminal law should not be obstructed
by the accused taking recourse to artifices and
strategies. The public interest in ensuring the due
investigation of crime is protected by ensuring that the
inherent power of the High Court is exercised with
caution. That indeed is one—and a significant—end
of the spectrum. The other end of the spectrum is
equally important : the recognition by Section 482 of
the power inhering in the High Court to prevent the
abuse of process or to secure the ends of justice is a
valuable safeguard for protecting liberty. The Code
of Criminal Procedure, 1898 was enacted by a
legislature which was not subject to constitutional
rights and limitations; yet it recognised the inherent
power in Section 561-A. Post-Independence, the
recognition by Parliament [ Section 482CrPC,
1973] of the inherent power of the High Court must
be construed as an aid to preserve the
constitutional value of liberty. The writ of liberty
runs through the fabric of the Constitution. The
need to ensure the fair investigation of crime is
undoubtedly important in itself, because it protects
at one level the rights of the victim and, at a more
fundamental level, the societal interest in ensuring
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that crime is investigated and dealt with in
accordance with law. On the other hand, the misuse
of the criminal law is a matter of which the High
Court and the lower courts in this country must be
alive. In the present case, the High Court could not
but have been cognizant of the specific ground which
was raised before it by the appellant that he was being
made a target as a part of a series of occurrences
which have been taking place since April 2020. The
specific case of the appellant is that he has been
targeted because his opinions on his television channel
are unpalatable to authority. Whether the appellant
has established a case for quashing the FIR is
something on which the High Court will take a final
view when the proceedings are listed before it but we
are clearly of the view that in failing to make even a
prima facie evaluation of the FIR, the High Court
abdicated its constitutional duty and function as a
protector of liberty. Courts must be alive to the need
to safeguard the public interest in ensuring that the
due enforcement of criminal law is not obstructed.
The fair investigation of crime is an aid to it.
Equally it is the duty of courts across the spectrum
—the district judiciary, the High Courts and the
Supreme Court—to ensure that the criminal law
does not become a weapon for the selective
harassment of citizens. Courts should be alive to
both ends of the spectrum—the need to ensure the
proper enforcement of criminal law on the one
hand and the need, on the other, of ensuring that
the law does not become a ruse for targeted
harassment. Liberty across human eras is as
tenuous as tenuous can be. Liberty survives by the
vigilance of her citizens, on the cacophony of the
media and in the dusty corridors of courts alive to
the rule of (and not by) law. Yet, much too often,
liberty is a casualty when one of these components
is found wanting.”
(emphasis supplied)
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Hon'be Supreme Court in Antil case, in paragraph 51, has reiterated and
restated Hussainara Khatoon case principles to say that to determine
whether the accused has his roots in the community which would deter
him from fleeing, the court should take into account following factors
concerning the accused :
(i)The length of his residence in the community,
(ii)his employment status, history and his
financial condition,
(iii)his family ties and relationships,
(iv)his reputation, character and monetary
condition,
(v)his prior criminal record including any record
of prior release on recognizance or on bail,
(vi)the identity of responsible members of the
community who would vouch for his reliability,
(vii)the nature of the offence charged and the
apparent probability of conviction and the likely
sentence insofar as these factors are relevant to the
risk of non-appearance, and
(viii)any other factors indicating the ties of the
accused to the community or bearing on the risk of
wilful failure to appear.
To be noted, the aforementioned eight determinants / parameters have
been applied and we are returning a finding in favour of the petitioner. It
is further to be noted that this is articulated infra in the latter part of this
order while discussing the trial court's order for the sake of a cogent
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narrative and convenience. This leaves us with proviso to Section 43D(5)
of UAPA.
29 As regards Section 43D(5) proviso of UAPA, we had the
benefit of perusing the case file including transcript of one telecon
between petitioner and A-3 and another telecon between the petitioner
and another person (in 3 folders). To be noted, one telecon was on
23.04.2023. As already alluded to supra, in the case on hand, we only
have the case diary to peruse as Section 173 Cr.P.C final report has not
been filed with regard to petitioner (A-17) and section 173 Cr.P.C report
has been filed only with regard to named 10 persons out of 13 named
persons in the FIR. In any event, we did peruse Section 173 statement
qua 10 persons named in the original impugned FIR also as alluded to in
earlier part of this order. We find that the case on hand does not pass
muster qua reasonable grounds for believing that accusation against the
petitioner is prima facie true, to put it differently, the case diary before us
(specifically the portions including audio clips to which our attention was
drawn) does not cut ice qua proviso to section 43D(5) of UAPA and
reasons are as follows:
(a)As already alluded to supra, specific overt act has
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not been attributed to the petitioner;
(b)The materials seized are (i) two pen drives (ii) a
cell phone from the residence and (i) knives, (ii) axe
recovered from farm house which are described as farm /
gardening equipments by petitioner. To be noted, contents
of pen drives are not known and it has been sent for
forensic examination;
(c)As regards the contents in the pen drives, it was
submitted that it has been sent for forensic analysis and
nothing is available as of today. Therefore, the pen drives
seized from the Advocate's residence (when contents are
not known) cannot be construed as material that is good
enough qua truth of accusation;
(d)As regards sharp weapons, even according to the
seizure report, it has been seized from the farm house.
Considering the nature of the weapons (long knives and
axe) and the place from which it has been seized is not
good enough as it can well be a farm equipment as
contended by learned counsel for petitioner;
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(e)Owing to the request of learned Solicitor to not to
capture even a thumbnail sketch of audio clips, i.e., not to
make even a whisper in the order, we refrain from doing so
as as we have listened to the same at the request of learned
Solicitor whose submission was that audio clips also form
part of the case diary and we are of the view that it does
not pass muster qua Section 43D(5) proviso. However, it is
subject to being proved in trial as a valid piece of evidence
pursuant to the Information Technology Act, 2000 and
also subject to the privileged communication argument
predicated on Section 126 of the Indian Evidence Act,
1872. To be noted, one of the conversations is between the
petitioner and A-3 who is his client. This Court without
setting out the contents and without hearing both sides
deems it proper to refrain from expressing any opinion and
suffice to say that it does not cut ice qua accusation being
prima facie true rigour ingrained in proviso to section
43D(5) of UAPA;
(f)The trial court has recorded in sub paragraph 13
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of paragraph VII of the impugned order that on
28.09.2022, petitioner has filed a memo of appearance for
accused Nos.1, 3 to 6, 8 and 9 and on 25.01.2023, he has
filed memo of appearance for accused No.2.
30 Proviso to Section 43D(5) of UAPA came up for
consideration of Hon'ble Supreme Court in Union of India Vs.
K.A.Najeeb reported in (2021) 3 SCC 713, Thwaha Fasal Vs. Union of
India reported in 2021 SCC OnLine SC 1000 and Yedala Subba Rao
Vs. Union of India reported in 2023 SCC OnLine SC 426.
31 In K.A.Najeeb case, on facts, it is alleged that one Professor
was attacked by members of PFI, a FIR was lodged against the alleged
attackers. It was alleged that the respondent in K.A.Najeeb case was one
of the main conspirators and he was arrested later. The respondent
approached the Special Court and the High Court for grant of bail
multiple times and respondent was granted bail and the same was
sustained by Hon'ble Supreme Court. In K.A.Najeeb's case, Hon'ble
Supreme Court made it clear that restrictions under a statute as well as
power exercisable under constitutional jurisdiction can be well
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harmonized. Hon'ble Supreme Court went on to hold that presence of
statutory restrictions like Section 43D(5) of UAPA per se does not oust
the ability of the Constitutional courts to grant bail on grounds of
violation of Part III of the Constitution. In the case on hand, even
according to remand report dated 09.05.2023, the petitioner refused to
sign the arrest memo, even according to prosecution at the time of search
the petitioner was taken away at 6.30 a.m but it is now being contended
that he resisted search, refused to sign arrest memo and therefore, the
same was read out to him in the presence of independent witnesses and it
has been video graphed. In the light of the prima facie violation, we find
that K.A.Najeeb principle applies and if it is read in conjunction with our
view that prima facie truth qua accusation in the matter on hand does not
pass muster / cut ice for bail qua Section 43D(5) proviso. Therefore, the
argument that Article 22(1) talks of 'grounds for such arrest' and 'being
informed' and the same have been met does not hold water. To be noted,
in this regard, we shall be referring to R.Gurusamy's case infra in the
latter part of this order.
32 As regards Thwaha Fasal case, it is one where a student of
law and two others were arrested and on the basis of materials seized
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from them, it was alleged that they were members of Communist Party of
India (Maoist) which is a 'terrorist organisation' within the meaning of
Section 2(m) of UAPA (listed as item No.34 in the First Schedule to
UAPA). The trial court granted bail and on statutory appeal under
Section 21 of NIA Act, Kerala High Court confirmed the trial court's
order. The appeal preferred by Union of India in Hon'ble Supreme Court
was dismissed and order granting bail was confirmed. In our considered
view, two paragraphs in Thwaha Fasal case are of great significance and
they are paragraphs 36 and 26 which reads as follows:
'36.Taking the charge sheet as correct, at the highest,
it can be said that the material prima facie establishes
association of the accused with a terrorist organization
CPI(Maoist) and their support to the organisation.
26.While we deal with the issue of grant of bail to the
accused nos.1 and 2, we will have also to keep in mind the
law laid down by this Court in the case of K.A.Najeeb
(supra) holding that the restrictions imposed by sub-section
(5) of Section 43D per se do not prevent a Constitutional
Court from granting bail on the ground of violation of Part
III of the Constitution.'
33 As regards Yedala Subba Rao case, two accused were
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alleged to be members of Communist Party of India (Maoist) and they
were alleged to be part of a team of 45 others which stopped the convoy
of a sitting MLA and Ex.MLA, both were taken towards a Y-Junction
and they were thereafter taken in two separate directions and were killed
with three gunshots. The trial court refused bail and the same was
confirmed by Hon'ble jurisdictional High Court in appeal under section
21(4) of NIA. In Yedala Subba Rao case, Hon'ble Supreme Court
reiterated K.A.Najeeb principle and after examining the materials which
included seizure of certain materials pertaining to plantation of landmine,
Hon'ble Supreme Court came to the conclusion that the embargo for grant
of bail vide proviso to Section 43D(5) will not apply.
34 As regards grounds of arrest not being intimated to the
accused, we respectfully follow the ratio laid down by a coordinate
Hon'ble Division Bench of this Court in R.Gurusamy Vs. State
represented by the Deputy Superintendent of Police CB CID reported
in 2003 SCC OnLine Mad 1193 : (2004) 1 LW (Cri) 418. In Gurusamy
case also, the contention of the prosecution was that the detenu refused to
receive the arrest memo and that refusal is recorded in the arrest memo.
After perusing the arrest memo, Court came to the conclusion that it
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and HCP No.1114 of 2023
cannot be gainsaid that reasons or grounds have been given to the detenu.
Owing to the request of the learned Solicitor, we refrain from setting out
the details of arrest memo showed to us to be form part of the case file.
Be that as it may, suffice to say that R.Gurusamy principle will apply and
more importantly R.Gurusamy ratio would not just be a ratio of Hon'ble
coordinate Bench of this Court but it has attained the status of the ratio of
Hon'ble Supreme Court as an appeal against the same vide Criminal
Appeal No(s).1057-1058 of 2005 to Hon'ble Supreme Court came to be
dismissed on 27.10.2010. A careful perusal of the order of Hon'ble
Supreme Court in this criminal appeal makes it clear that it is not a
dismissal at SLP stage and it is a criminal appeal. Therefore, the doctrine
of merger laid down in Kunhayammed and others Vs. State of Kerala
and another reported in (2000) 6 SCC 359 applies. It is in this view of
the matter we have no hesitation in saying that the ratio has now attained
the status of the ratio of Hon'ble Supreme Court. Therefore, R.Gurusamy
principle read in the context of K.A.Najeeb ratio brings to light that the
case on hand turns on Part III of Constitution violation and therefore, it
clears the fence qua Section 43D(5) proviso UAPA.
35 This Section 43D(5) and proviso thereat was tested by this
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Court on a demurrer scenario. Demurrer scenario is, even if there is no
Part III [Constitution] violation and if it cannot be said that 'all'
accusations qua 3 IPC and 6 UAPA provisions against the petitioner are
such that there are no reasonable grounds for believing them to be prima
facie true, the accusations qua 5 UAPA sections pertaining to Chapter IV
and Chapter VI of UAPA (Sections 17, 18, 18B, 38 and 39 of UAPA in
the case on hand) in the considered view of this Court are such that it is
clear as day light that there are no reasonable grounds for believing the
accusations against the petitioner to be prima facie true. The reason is all
these provisions are anchored on 'terrorist act' and 'terrorist organisation'
and specific accusations in this regard are absent. To be noted, both these
terms are defined under UAPA vide Sections 2(1)(k) and 2(1)(m)
respectively. In this regard, Section 2(1)(k) has to be read with Section 15
captioned 'Terrorist Act'. Before embarking upon discussion and
dispositive reasoning on this aspect of the matter, it is apposite to look at
the relevant provisions.
36 Sections 2(1)(k), 2(1)(m), 15, 17, 18, 18B, 38 and 39 of
UAPA read as follows:
2.Definitions
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(1)In this Act, unless the context otherwise requires,---
xxxx
(k)'terrorist act' has the meaning assigned to it in
section 15, and the expressions “terrorism” and “terrorist”
shall be construed accordingly;
(m)'terrorist organisation' means an organisation listed
in the First Schedule or an organisation operating under the
same name as an organisation to listed;
15.Terrorist Act.
Whoever does any act with intent to threaten or likely
to threaten the unity, integrity, security [,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,—
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or
other lethal weapons or poisonous or noxious gases or
other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever
nature to cause or likely to cause—
(i)death of, or injuries to, any person or
persons; or
(ii)loss of, or damage to, or destruction of,
property; or
(iii)disruption of any supplies or services
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essential to the life of the community in India or in
any foreign country; or
[(iiia)damage to, the monetary stability of
India by way of production or smuggling or
circulation of high quality counterfeit Indian paper
currency, coin or of any other material; or]
(iv)damage or destruction of any property
in India or in a foreign country used or intended to
be used for the defence of India or in connection
with any other purposes of the Government of
India, any State Government or any of their
agencies; or
(b)overawes by means of criminal force or the
show of criminal force or attempts to do so or causes
death of any public functionary or attempts to cause
death of any public functionary; or
(c)detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any other
act in order to compel the Government of India, any
State Government or the Government of a foreign
country or [an international or inter-governmental
organisation or any other person to do or abstain from
doing any act; or]
commits a terrorist act.
[Explanation.—For the purpose of this sub-section,—
(a)“public functionary” means the constitutional
authorities or any other functionary notified in the
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Official Gazette by the Central Government as public
functionary;
(b)“high quality counterfeit Indian currency”
means the counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
[(2) The terrorist act includes an act which constitutes
an offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.]
17.Punishment for raising funds for terrorist act
Whoever, in India or in a foreign country, directly or
indirectly, raises or provides funds or collects funds, whether
from a legitimate or illegitimate source, from any person or
persons or attempts to provide to, or raises or collects funds
for any person or persons, knowing that such funds are likely
to be used, in full or in part by such person or persons or by a
terrorist organisation or by a terrorist gang or by an
individual terrorist to commit a terrorist act, notwithstanding
whether such funds were actually used or not for commission
of such act, shall be punishable with imprisonment for a term
which shall not be less than five years but which may extend
to imprisonment for life, and shall also be liable to fine.
Explanation : For the purpose of this section, -
(a) participating, organising or directing in any of the
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acts stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or
providing funds through production or smuggling or
circulation of high quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any
manner for the benefit of, or, to an individual terrorist,
terrorist gang or terrorist organisation for the purpose not
specifically covered under section 15 shall also be construed
as an offence.
18.Punishment for conspiracy, etc.
Whoever conspires or attempts to commit, or
advocates, abets, advises or [incites, directs or knowingly
facilitates] the commission of, a terrorist act or any
preparatory to the commission of a terrorist act, shall be
punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.
18B.Punishment for recruiting of any person or persons
for terrorist act
Whoever recruits or causes to be recruited any person
or persons for commission of a terrorist act shall be
punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.
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38.Offence relating to membership of a terrorist
organisation
(1)A person, who associates himself, or professes to
be associated, with a terrorist organisation with intention to
further its activities, commits an offence relating to
membership of a terrorist organisation:
PROVIDED that this sub-section shall not apply
where the person charged is able to prove—
(a)that the organisation was not declared as a
terrorist organisation at the time when he became a
member or began to profess to be a member; and
(b)that he has not taken part in the activities
of the organisation at any time during its inclusion
in the [First Schedule] as a terrorist organisation.
(2)A person, who commits the offence relating to
membership of a terrorist organisation under sub-section (1),
shall be punishable with imprisonment for a term not
exceeding ten years, or with fine, or with both.
39.Offence relating to support given to a terrorist
organisation
(1)A person commits the offence relating to support
given to a terrorist organisation,—
(a)who, with intention to further the activity of
a terrorist organisation,—
(i)invites support for the terrorist
organization; and
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(ii)the support is not or is not restricted
to provide money or other property within the
meaning of section 40; or
(b)who, with intention to further the activity of
a terrorist organisation, arranges, manages or assists in
arranging or managing a meeting which he knows is
—
(i)to support the terrorist organization; or
(ii)to further the activity of the terrorist
organization; or
(iii)to be addressed by a person who
associates or professes to be associated with the
terrorist organisation; or
(c)who, with intention to further the activity of
a terrorist organisation, addresses a meeting for the
purpose of encouraging support for the terrorist
organisation or to further its activity.
(2)A person, who commits the offence relating to
support given to a terrorist organisation under sub-section (1)
shall be punishable with imprisonment for a term not
exceeding ten years, or with fine, or with both.
37 Embarking upon discussion on the above aspect, it is to be
noted that the crux and gravamen of the prosecution case turns on
petitioner's association / membership with / in PFI. In the case on hand,
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the Government notification regarding PFI being notification dated
28.09.2022 is one declaring PFI, its associates or affiliates or fronts as
'unlawful association' and not as 'terrorist organisation'. 'Unlawful
association' is defined under Section 2(1)(p) of UAPA, which reads as
follows:
'(p) “unlawful association” means any association,—
(i)which has for its object any unlawful activity, or
which encourages or aids persons to undertake any unlawful
activity, or of which the members undertake such activity; or
(ii)which has for its object any activity which is
punishable under section 153A or section 153B of the Indian
Penal Code (45 of 1860), or which encourages or aids persons
to undertake any such activity, or of which the members
undertake any such activity:
Provided that nothing contained in sub-clause (ii) shall apply
to the State of Jammu and Kashmir; '
38 The definition of 'terrorist organisation' has already been set
out supra and PFI does not find place in the First Schedule of UAPA.
There is no disputation or disagreement on this. Further more, the FIR
itself is prior to even this notification as unlawful association. Absent
accusations with specificity qua petitioner pertaining to terrorist act or
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terrorist organisation, Sections 17, 18, 18B, 38 and 39 of UAPA get
shorn of. Except broad averments in the nature of suspicion of
involvement of what is described as other members of 'banned terrorist
organisation of PFI' in further investigation application there is no
accusation with specificity qua petitioner and as already alluded to supra,
PFI has not been listed as 'terrorist organisation' in the First Schedule but
has been declared vide Government of India notification as 'unlawful
association'. This means that there are effectively no Chapter IV and
Chapter VI accusations with specificity qua petitioner. The sequitur, is
Section 43D(5) and proviso thereat does not operate or come into play at
all. It is therefore axiomatic that it can be gainsaid (on demurrer) that
there are (at the highest) reasonable grounds for believing that
accusations qua Section 13 of UAPA and Sections 120B, 153A and
153AA of IPC are prima facie true. Ideally this court would have
preferred to set out the transcript, audio clips as well as other essentials of
case diary, set out discussion and dispositive reasoning as to how and
why as regards Chapter IV and Chapter VI of UAPA sections there is no
bona fide grounds to believe accusations to be prima facie true but we
have refrained from doing so owing to specific request of learned Solicitor
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and learned Prosecutor to not to mention these details in the order as it is
not desirable to put it in public domain. Therefore, suffice to say that on
perusal we have satisfied ourselves on this aspect of the matter.
39 The prosecution has to show that there is prima facie
material available to negative the bail plea and the activities committed by
the petitioner would attract Section 43D(5) and proviso thereat. In the
case on hand, a perusal of the case diary shows that there is no specific
overt act against the petitioner and only a cell phone, two pen drives
(from the residence of petitioner) and long knives and axe (from the farm
house of petitioner) were recovered. The contents of pen drives are not
known. Charge sheet as regards the petitioner is yet to be filed. Further,
the trial court in its impugned order has categorically said that the
question of absconding of the petitioner may not arise since he is an
Advocate. All this put together, if the eight factors mentioned in
Hussainara Khatton case (to determine whether the accused has his
roots in the community which would deter him from fleeing) which were
reiterated in Antil case are applied, this Court is of the view that a finding
has to be rendered in favour of the petitioner regarding bail plea.
40 As regards Zahoor Ahmad Shah Watali case adverted to by
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the respondents in the objection (i) reasonable ground to believe that the
petitioner has committed offence, (ii) nature and gravity of the charge and
(iii) severity of the punishment have been answered supra while dealing
with Section 43D(5) and proviso thereat. As regards (iv) regarding
danger of accused absconding or fleeing, as already alluded to supra, the
trial court itself has rendered a categoric finding that the question of
petitioner absconding does not arise at all and this has not been assailed
by the prosecution. Regarding (v) turning on character and behaviour, the
same is subjected to disputation / contestation and in any event the
petitioner should cooperate with the investigation is now one of the
conditions for bail. As regards other points, appellant threatening
witnesses on social media, FB, there is no material. As regards other
points turning on tampering with witnesses and danger of justice being
thwarted, the objections are broad and generic which can be said against
any person. In this regard, we respectfully follow the course adopted and
principle laid down by Hon'ble Supreme Court in Tawaha Fasal case.
Paragraph 20 of this case law is relevant and the same reads as follows:
'20. The stringent conditions for grant of bail in sub-section
(5) of Section 43D will apply only to the offences punishable
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only under Chapters IV and VI of the 1967 Act. The offence
punishable under Section 13 being a part of Chapter III will
not be covered by sub-section (5) of Section 43D and
therefore, it will be governed by the normal provisions for
grant of bail under the Criminal Procedure Code, 1973. The
proviso imposes embargo on grant of bail to the accused
against whom any of the offences under Chapter IV and VI
have been alleged. The embargo will apply when after
perusing charge sheet, the Court is of the opinion that there
are reasonable grounds for believing that the accusation
against such person is prima facie true. Thus, if after
perusing the charge sheet, if the Court is unable to draw such
a prima facie conclusion, the embargo created by the proviso
will not apply. '
41 Likewise, Kekhriesatuo Tep and others Vs. National
Investigation Agency reported in (2023) 6 SCC 58 which reiterates
Zahoor Ahmad Shah Watali case is relevant. In Kekhriesatuo Tep case,
the appellant was granted bail by the Special Court which was reversed
by Guwahati High Court. The appellant moved Hon'ble Supreme Court
which has allowed the appeal and set aside the order passed by the High
Court. Paragraph 13 of Kekhriesatuo Tep case is most relevant and the
same reads as follows:
'13. The provisions of Section 43-D(5) of the said Act have
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been considered by this Court in Thwaha Fasal [Thwaha
Fasal v. Union of India, (2022) 14 SCC 766 : 2021 SCC
OnLine SC 1000] . The Court, after reproducing the provisions
of Section 43-D(5) and after considering the judgment of this
Court in NIA v. Zahoor Ahmad Shah Watali [NIA v. Zahoor
Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri)
383] and Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra [Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] ,
held that while deciding a bail petition filed by the accused
against whom offences under Chapters IV and VI of the said
Act have been made, the court has to consider as to whether
there are reasonable grounds for believing that the accusation
against the accused is prima facie true. It will be worthwhile to
note that this Court, in Zahoor Ahmad Shah
Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 :
(2019) 2 SCC (Cri) 383] , has distinguished the words “not
guilty” as used in TADA, MCOCA and NDPS Act as against the
words “prima facie” in the present Act. The Court has held that
a degree of satisfaction required in a case of “not guilty” is
much stronger than the satisfaction required in a case where the
words used are “prima facie”.'
42 Learned Additional Solicitor General relied on the following
case laws:
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(i)P.Vijayan Vs. State of Kerala reported in
(2010) 2 SCC 398,
(ii)State of Tamil Nadu Vs. N.Suresh Rajan
reported in (2014) 11 SCC 709; and
(iii)Tarun Jit Tejpal Vs. State of Goa reported
in (2020) 17 SCC 556.
Aforementioned case laws arise out of discharge applications under
Section 227 of Cr.P.C and therefore, we are of the view that it does not
help the prosecution in the case on hand.
43 The trial court in the impugned order, i.e., order dated
20.06.2023 in Crl.M.P.No.893 of 2023 in RC No.42/2022/NIA/DLI
(CNR No.TNCH06-000894-2023) vide which the bail plea of the
petitioner was dismissed has set out seven points for consideration after
capturing averments in the petition and brief averments in the counter
(objections of Special Public Prosecutor). Point No.1 pertains to whether
the petitioner was informed about the grounds of arrest, i.e., compliance
with Section 41 and 41-A of Cr.P.C, whereas Point No.2 as formulated is,
whether the petitioner has immunity from prosecution. The trial court has
chosen to answer these two question on one go though they turn on
different principles. Be that as it may, as regards point No.2 (point for
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consideration), the question has been formulated by the trial court in the
following manner:
'2.Whether the Petitioner / accused No 17 has been
an advocate for the accused instant case and he is
immuned from prosecution?
44 A careful perusal of the rival stated position of the petitioner
and the prosecution (even as captured by trial court) makes it clear that
neither side has raised the point that petitioner has immunity from
prosecution being an Advocate but contestation and disputation turn on
mala fide / malice, i.e., while the petitioner contends inter-alia that he is
being intimidated with the intention of dissuading him from appearing for
some of the accused in case on hand and other PFI matters [to be noted,
as per sub paragraph 13 of paragraph VII, the trial court has recorded
that the case records show that on 28.09.2022 the petitioner has filed
memo of appearance for accused Nos.1, 3 to 6, 8 and 9 and on
25.01.2023 the petitioner has filed memo of appearance for accused
No.2]. On the contrary, even according to what has been captured by trial
court, the petitioner has only contended that he has equal protection in
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law as regards right to life and liberty enshrined in the Constitution and
the FB post is the trigger. The prosecution on the contrary submitted that
the FB post is not the trigger and therefore, it is not intimidation, unfair
investigation or overzealous conduct of the IO to browbeat the defence
and snatch away the right of the accused to engage a lawyer of his choice
as alleged by the petitioner. Therefore, in our considered view, the point
for consideration should have been whether further investigation adding
of petitioner as A-17 and propping up new theory that petitioner is a core
team leader is actuated by mala fide / malice and as to whether the FB
post is the trigger. The reason is it is nobody's case that an Advocate has
immunity from prosecution. Therefore, we find that the point for
consideration No.2 as framed and answered by trial court point towards
erroneous appreciation of rival contentions.
45 Be that as it may, the trial court in the impugned order in sub
paragraph 2 of paragraph IX, while answering one limb of point No.6 as
to whether petitioner may abscond if let out on bail, has returned a
categoric finding that the question of absconding may not arise since the
petitioner is a Advocate. This sub paragraph 2 of paragraph IX of the
impugned order reads as follows :
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'2.There may be chances of tamper or threat the
witnesses in this case. The question of absconding may not
arise since he is an Advocate. Accordingly point No.6 is
answered.'
(Underlining made by this court for ease of
reference )
Further, mere FB post is not good enough to say that the petitioner will
tamper with witnesses. Father-in-law of the petitioner is a established
lawyer and therefore petitioner has his roots in the community which
would deter him from fleeing. FIR in the case on hand came to be
registered on 19.09.2022 and post FIR, i.e., on 28.09.2022, the Central
Government declared PFI as a 'unlawful association' within the meaning
of Section 3(1) of UAPA. After the FB post made by petitioner on
06.03.2023, the very next day, i.e., on 07.03.2023, NIA sought
permission to intercept petitioner's phone calls. This discussion thus far
including discussion regarding trial court order in our view makes it clear
that all the eight determinants / parameters adumbrated in Hussainara
Khatoon case, reiterated / restated in Antil case stand answered in favour
of the petitioner or in other words they enure to the benefit of the
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petitioner regarding his bail plea. Suffice to say that these are points
which have impelled us to interfere with the trial court order.
46 Before concluding, this Court reiterates what it had said in
the 'PREFACE' paragraph supra, i.e., that parameters and determinants
for quash of FIR under Section 482 and grant of bail under Section 439
of Cr.P.C read with Section 43D(5) proviso of UAPA are vastly and
hugely different. In this regard, for an illustration, while we have accepted
the fair submission of learned Solicitor that accusation and details
(specificity of material) are hazy in the quash plea, we have applied the
same in favour of the petitioner for grant of bail in the bail plea.
47 As regards HCP, it would be evident from the allusion supra
that maintainability has to be tested on whether the order of remand is
bad. It will also be clear from what has been captured supra that Crl.O.P
and Criminal appeal were heard out and the question of taking up HCP
for hearing can be considered subject to outcome of the Crl.O.P and
Criminal appeal. Now that we are granting bail in the Criminal appeal,
we deem it appropriate to not to embark upon the legal drill of examining
the HCP. Therefore, HCP is closed without expressing any view or
opinion either on merits of the matter or on maintainability. However, we
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make it clear that all questions are left open and all rights and contentions
of both sides in the HCP are preserved including rights of HCP petitioner
or any one concerned for the petitioner to come up with another HCP
with similar / same prayer if the need arises depending on the
development and further trajectory the matter takes.
48 Ergo, sequitur of narrative, discussion and dispositive
reasoning is set out infra under the caption 'CONCLUSION'.
CONCLUSION :
49 The following order is passed :
(a)Crl.O.P.No.12229 of 2023 is dismissed albeit,
leaving the plea of mala fide / malice raised in the captioned
Criminal O.P. open for being tested in trial by the trial court
untrammelled by this order. It is made clear that this order
neither impedes nor serves as an impetus to either side in
deciding the issue by the trial court. For the sake of
specificity, we make it clear that all questions are left open
qua mala fide / malice. Though obvious, it is made clear that
the findings recorded in this order are only prima facie view
and trial court shall decide the issue on its own merits
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untrammeled by the observations made in this order.
Consequently, connected Crl.M.P seeking to stay all further
proceedings in RC No.42/2022/NIA/DLI is also dismissed.
(b)Crl.A.No.678 of 2023 is allowed setting aside the
order passed by the trial court on 20.06.2023 in
Crl.M.P.No.893 of 2023 in RC No.42/2022/NIA/DLI. The
Petitioner /Accused No.17 is granted bail on the following
conditions:
(i)Petitioner shall execute a bond and furnish
two sureties for a likesum of Rs.1,00,000/- [Rupees
One Lakh only] each and one of the sureties should
be a blood relative to the satisfaction of the learned
Special Court under the National Investigation
Agency Act, 2008 (Sessions Court for Exclusive
Trial of Bomb Blast Cases) Chennai at
Poonamallee, Chennai-56;
(ii)After coming out from jail, the petitioner
shall stay at Chennai and shall not leave the
Chennai city without the permission of the trial
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court;
(iii)The petitioner shall appear and sign
before the trial court every day at 10.30 a.m. until
further orders;
(iv)The petitioner shall surrender his Passport
(if any) before the trial court and if he does not hold
a passport, he shall file an affidavit to that effect in
the form that may be prescribed by the trial court.
In the latter case the trial court will if he has reason
to doubt the accuracy of the statement, write to the
Passport Officer concerned to verify the statement
and the Passport Officer shall verify his record and
send a reply within three weeks. If he fails to reply
within the said period, the trial court will be entitled
to act on the statement of the petitioner;
(v)The petitioner shall cooperate with the
investigation;
(vi)The petitioner shall not tamper with
evidence and indulge in any other activities which
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
are in the nature of preventing the investigation
process;
(vii)The petitioner shall inform the trial court
the address where he resides and if changes his
address, it should be informed to trial court;
(viii)The petitioner shall use only one mobile
phone during the time he remains on bail and shall
inform the trial court his mobile number;
(ix)The petitioner shall also ensure that his
mobile phone remains active and charged at all
times so that he remains accessible over phone
throughout the period he remains on bail;
(x)The trial court will be at liberty to cancel
bail if any of the above conditions are violated or a
case for cancellation of bail is otherwise made out.
(c)Captioned H.C.P.No.1114 of 2023 is closed albeit preserving
all rights and contentions of both sides in the HCP including rights of
HCP petitioner or any one concerned for the petitioner (detenu) to come
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
up with another HCP with similar / same prayer if the need arises
depending on the development and further trajectory the matter takes.
Consequently, connected Crl.M.P.No.8903 of 2023 seeking for interim
bail is closed.
(M.S., J.) (R.S.V., J.)
01.08.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
vvk
To
1.The Superintendent of Police,
National Investigation Agency,
NIA, Police Station,
Ministry of Home Affairs,
Government of India,
New Delhi.
2.The Chief Investigating Officer,
The Inspector of Police,
National Investigation Agency,
Chennai Branch,
Chennai
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
3.Under Secretary,
CTCR Division,
Ministry of Home Affairs,
North Block, New Delhi.
4.The Superintendent of Prison,
Central Prison, Puzhal,
Chennai.
5.Special Public Prosecutor,
National Investigation Agency
6.Public Prosecutor,
High Court, Madras.
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
vvk
common order in
Criminal O.P.No.12229 of 2023,
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
Criminal Appeal No.678 of 2023
and
H.C.P.No.1114 of 2023
and
Crl.M.P.No.7402 of 2023 in
Crl.O.P.No.12229 of 2023
and
Crl.M.P.No.8903 of 2023 in
HCP No.1114 of 2023
Dated : 01.08.2023
ADDENDA
in
Criminal O.P.No.12229 of 2023,
Criminal Appeal No.678 of 2023
and
H.C.P.No.1114 of 2023
and
Crl.M.P.No.7402 of 2023 in Crl.O.P.No.12229 of 2023
and
Crl.M.P.No.8903 of 2023 in HCP No.1114 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
(Order of the Court was made by M.SUNDAR, J.)
Captioned matters are listed under the cause list caption 'FOR
PRONOUNCING ORDERS'.
2 After pronouncing of the common order, Mr.N.Baaskaran,
learned Special Public Prosecutor for NIA Cases (hereinafter 'learned
SPP' for the sake of brevity, convenience and clarity) who was present in
Court made a oral application seeking Certificate for appeal to Hon'ble
Supreme Court.
3 Aforementioned oral application is obviously under Article
134-A(b) of the Constitution of India. Article 134-A provides for
determining a question as to whether a Certificate for appeal to Hon'ble
Supreme Court may be given vide three circumstances adumbrated
therein and they are as follows:
(a)Where the case involves a substantial question of law
as to the interpretation of Constitution [Article 132(1)];
(b)Where a substantial question of law of general
importance in regard to civil matters which in the
opinion of the High Court has to be decided by Hon'ble
Supreme Court [Article 133(1)];
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
(c)Where the High Court certifies that the case is a fit
one for appeal to Hon'ble Supreme Court [Article
134(1)(c)].
4 As regards the ground on which Section 134-A oral
application was made by learned SPP, it was submitted that Section 43D
of 'the Unlawful Activities (Prevention) Act, 1967 [Act 37 of 1967]'
(hereinafter 'UAPA' for the sake of brevity) requires to be interpreted by
Hon'ble Supreme Court. To be noted, this is the ground on which learned
SPP made the oral application under Article 134-A(b).
5 We carefully considered the oral application. We find that
Section 43D of UAPA has been elucidated and interpreted by Hon'ble
Supreme Court in a long line of judgments i.e., a catena of case laws and
we have respectfully referred to many of these case laws in our aforesaid
common order. Therefore, we find that the ground projected by learned
SPP does not really arise as Hon'ble Supreme Court has rendered many
orders and judgments qua Section 43D as well as Section 43D(5) and
proviso thereat and we have respectfully alluded to the same in our
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
common order. Oral application seeking Certificate for appeal to Hon'ble
Supreme Court does not fit into adumbration qua Article 134-A(b) set out
supra. We are informed by both sides that no matter pertaining to
constitutional validity, i.e., vires in this regard is pending in Hon'ble
Supreme Court. Therefore, the request for oral leave seeking Certificate
for appeal to Hon'ble Supreme Court is negatived.
6 This order made in open Court will now be uploaded along
with the common order in captioned matter as addenda to the common
order pronounced in the Court today.
7 We also make it clear that the common order together with
this addenda uploaded in the official website of this Court (Madras High
Court) will be good enough for any Court (including the Trial Court) to
act on the same (if approached by any of the parties) without insisting on
certified copy of the same.
(M.S., J.) (R.S.V., J.)
01.08.2023
vvk
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
M.SUNDAR, J.
and
R.SAKTHIVEL, J.
vvk
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12229 of 2023, Crl.A.No.678 of 2023
and HCP No.1114 of 2023
Criminal O.P.No.12229 of 2023,
Criminal Appeal No.678 of 2023
and
H.C.P.No.1114 of 2023
and
Crl.M.P.No.7402 of 2023 in
Crl.O.P.No.12229 of 2023
and
Crl.M.P.No.8903 of 2023 in
HCP No.1114 of 2023
Dated : 01.08.2023
https://www.mhc.tn.gov.in/judis
