Madras High Court
Rizwan Mohammed vs Union Of India on 25 July, 2023
CRL.A.NO.761 OF 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
AND
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
CRL.A.NO.761 OF 2023
AND
CRL.M.P.NO.10472 OF 2023
IN
CRL.A.NO.761 OF 2023
Rizwan Mohammed .. Appellant
Vs
Union of India
Rep. By Inspector of Police
National Investigation Agency
Chennai.
(R.C.No.01/2019/NIA/DLI) .. Respondent
PRAYER: Criminal Appeal filed under Section 21(1) of National
Investigation Agency Act, 2008 to set aside the order passed in
Crl.M.P.No.463/2022 in Spl.S.C.No.25/2022 dated 21.03.2023 on the file of
the 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.
1/12
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CRL.A.NO.761 OF 2023
For Appellant : Mr.I.Abdul Basith
For Respondent : Mr.R.Karthikeyan
Special Public Prosecutor (NIA)
JUDGMENT
[Judgment of the Court was made by M.SUNDAR, J.]
This common consent judgment / order will now dispose of the
captioned main 'Criminal Appeal' [hereinafter 'Crl.A' for the sake of
convenience and brevity] and captioned 'Criminal Miscellaneous Petition'
[Crl.MP' for the sake of convenience and brevity]. In this order, 'Special
Court under the National Investigation Agency Act, 2008, Sessions Court for
Exclusive Trial for Bomb Blast Cases Chennai at Poonamallee' shall
hereinafter be referred to as 'said trial court' and 'Crl.M.P.No.463/2022 in
Spl.S.C.No.25/2022 (C.C.No.1/2021) (CNR No.TNCH06-000466-2022)'
shall hereinafter be referred to as 'said sessions case' for the sake of
convenience and clarity.
2.Captioned matters are listed under the cause list caption 'FOR
ADMISSION'.
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CRL.A.NO.761 OF 2023
3.Short facts shorn of elaboration or in other words facts that are
imperative and essential for appreciating this common judgment / order are
that the said sessions case pertains to an alleged occurrence on 01.04.2018 at
about 10.30pm; that the said occurrence is within the limits of Keelakarai
Police Station in Ramanathapuram District; that the matter pertains to an
alleged conspiracy for disrupting communal harmony and purchase of illegal
fire arms for waging armed struggle to liberate the associates who are
presently lodged in prisons; that there are 10 accused in said sessions case
before said trial court; that the FIR which is the fulcrum of said sessions case
is FIR No.153 on the file of National Investigation Agency (NIA), New
Delhi, it is dated 10.01.2019 and bears reference FIR No.RC-
01/2019/NIA/DLI [hereinafter 'said FIR' for the sake of convenience and
brevity]; that the said FIR is for alleged offences under Sections 153A and
120 B of 'Indian Penal Code, 1860 (Act 45 of 1860)' ['IPC' for brevity] and
Sections 15, 17, 18, 19 and 20 of 'Unlawful Activities (Prevention) Act, 1967'
['UAPA' for the sake of brevity] and Section 25(1)(a) of Arms Act, 1959; that
with the exception of A2 and A8, remaining 8 accused have now been
enlarged on bail; that A7 Thiru. Hameed Aspar filed a discharge petition in
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CRL.A.NO.761 OF 2023
Crl.M.P.No.840/2023 seeking discharge under Section 227 of 'The Code of
Criminal Procedure, 1973 ['Cr.P.C., for the sake of brevity]; that discharge
petition of A7 was filed on 20.06.2023; that the prosecution i.e., NIA has
filed objections; that this Crl.MP is listed for hearing on Monday
(31.07.2023) before said trial court; that A1 Thiru. Sheik Dawood had earlier
filed a discharge petition (under Section 227 of Cr.P.C.,) vide
Crl.M.P.No.770/2022 (filed on 19.12.2022) the same came to be dismissed by
the said trial court on 21.03.2023; that this dismissal of discharge petition of
A1 has attained finality as 90 days limitation cap had elapsed; that owing to
the two provisos to Section 21 of 'National Investigation Agency Act, 2008'
['NIA Act' for the sake of brevity] there can be no appeal as regards the
dismissal of discharge petition qua A1; that the discharge petition vide
Crl.M.P.No.463/2022 filed by A10 Thiru. Rizwan Mohammed was dismissed
by the 'said trial court on 21.03.2023' [hereinafter 'impugned order' for the
sake of convenience and clarity]; that captioned main Crl.A is directed
against the impugned order.
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CRL.A.NO.761 OF 2023
4.The sheet anchor submission of the learned counsel for
appellant (A10) before trial court is twofold. One is, said trial court has relied
on extraneous material and the second is, trial court has only parroted the
counter filed by NIA in the impugned order. We refrain ourselves from
expressing any opinion on these submissions as we are now remitting the
matter back to the said trial court.
5.Mr.R.Karthikeyan, learned Special Public Prosecutor (NIA)
who was in court accepted notice for the respondent and he is instructed by
Mr.V.Arun Magesh, Inspector of Police / Chief Investigation Officer.
6.In the course of considering the captioned matters for
admission in the Admission Board and interim prayer vide captioned Crl.MP,
it emerges that the appellant is raising Shreya Singhal principle i.e.,
SHREYA SINGHAL VS. UNION OF INDIA [2015 SCC ONLINE SC 248 :
2015 (5) SCC 1] as charge sheet qua Section 161 of Cr.P.C., statement of as
many as 83 witnesses, material objects and more importantly, whatsapp
messages have been considered.
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CRL.A.NO.761 OF 2023
7.On a perusal of the case file, it came to light that this Shreya
Singhal point has not been raised before said trial court. As the sitting of
evidence albeit not as sitting in a trial is imperative for a 227 legal drill, it
appears that the role of an 'intermediary' within the meaning of Section
2(1)(w) of Information Technology Act, 2000 and the principles laid down by
the Hon'ble Supreme Court in Shreya Singhal's case becomes relevant. This
means that it is necessary for the said trial court to go through the legal drill
de novo. On this aspect of the matter, there was consensus qua both sides.
Therefore, by consent of both sides, main Crl.A was taken up and the same is
being disposed of. The following consent order is passed:
(i) Impugned order i.e., order dated 21.03.2023
in Crl.M.P.No.463/2022 in Spl.S.C.No.25/2022
(C.C.No.1/2021) (CNR No.TNCH06-000466-2022)
on the file of Special Court under the National
Investigation Agency Act, 2008 (Sessions Court for
Exclusive Trial For Bomb Blast Cases) Chennai at
Poonamallee, Chennai is set aside;
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CRL.A.NO.761 OF 2023
(ii) It is made clear that the impugned order is
set aside for the purpose of enabling the said trial
court to consider the matter afresh in the light of
Shreya Singhal principles argument and therefore, for
the purpose of abundant clarity and specificity, we
further make it clear that we have not expressed any
view or opinion on the arguments advanced and
resisted in the Admission Board;
(iii) It is axiomatic from the above directive that
the trial court will consider the matter afresh
untrammelled by this order except the directive to
consider the discharge petition afresh inter alia in the
light of Shreya Singhal principle and within time
frame to be set out infra;
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CRL.A.NO.761 OF 2023
(iv) We also deem it appropriate to make it clear
that the trial court shall apply all the other legal
principles qua a Section 227 Cr.P.C., discharge
petition legal drill while considering the matter afresh
and that will now include Sajjan Kumar principle i.e.,
SAJJAN KUMAR VS. C.B.I. [2010 (9) SCC 368 :
2010 SCC ONLINE SC 1045 : 2010 (3) SCC (CRL)
1371].
(v) As already alluded to supra, the discharge
petition taken out by A7 (Thiru. Hameed Aspar) i.e,
Crl.M.P.No.840/2023 is pending (objections have
been filed by NIA) and the matter is ready for hearing
and it is listed for arguments on Monday (31.07.2023).
Therefore, discharge petition of A7 i.e.,
Crl.M.P.No.840/2023 and that of A10 i.e.,
Crl.M.P.No.463/2022 shall be taken up together and
disposed of bearing in mind the aforementioned
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CRL.A.NO.761 OF 2023
objections / directives of this Court as expeditiously
as the official business of the said trial court would
permit but in any event on or before 31.08.2023;
(vi) Learned counsel on both sides submitted
that they will extend all cooperation in the said trial
court for meeting the aforementioned time line cap;
(vii) It is made clear that in both matters i.e.,
Crl.M.P.No.840/2023 filed by A7 (Thiru. Hameed
Aspar) and Crl.M.P.No.463/2022 filed by A10 (Thiru
Rizwan Mohammed) out of which captioned Crl.A.
arises shall be argued before the learned Judge of the
said sessions court on the basis of petition, objections
and material which are already on record and both
sides shall not introduce any additional pleadings or
additional materials;
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CRL.A.NO.761 OF 2023
(viii) As regards this Caveat, it is made clear
that the same will not apply to questions of law and
principles / propositions put in place / propounded by
Hon'ble Courts.
8.Captioned Criminal Appeal is disposed of in the aforesaid
manner. Consequently captioned Crl.M.P. is disposed of as closed.
(M.S., J.) (R.S.V., J.)
25.07.2023
Index : Yes
Speaking
Neutral Citation : Yes
TK
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CRL.A.NO.761 OF 2023
To
1.The Special Judge
Special Court under the
National Investigation Agency Act, 2008,
Sessions Court for Exclusive Trial
For Bomb Blast Cases,
Chennai at Poonamallee, Chennai.
2.The Inspector of Police
National Investigation Agency
Chennai.
3.The Public Prosecutor
High Court of Madras.
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CRL.A.NO.761 OF 2023
M.SUNDAR, J.
AND
R.SAKTHIVEL, J.
TK
CRL.A.NO.761 OF 2023
AND CRL.M.P.NO.10472 OF 2023
IN CRL.A.NO.761 OF 2023
25.07.2023
https://www.mhc.tn.gov.in/judis
