Ashruff. Vs. State of KeralA. - Court Judgment

Excerpt:
[mr justice k. n. keshavanarayana, j.] this criminal petition is filed under section 482 read with 427 cr.p.c. praying to direct. all the sentences to run concurrently awarded in c.c.no.2163/2004 dated 16.12,2004, c.c.no.2 199/2004 dated 14.02.2005 and c.c.n0.2241 /2004 dated 16.12.2004 respectively passed by the jmfc. ii court, davanagere and confirmed by the appeliate court at davanagere in crl.a.no. 19/2005 dated 27.09.2005, crl.a.no.88/2005 dated 17.09.2005 and crl.a.no. 18/2005 dated 27.09.2004 passed by additional sessions judge, ftc-ii, davanagere. 1. these are applications for regular bail filed by 9 among the 25 accused persons who are in custody in crime no. 704 of 2010 of muvattupuzha police station for offences punishable under sections 143, 147, 148, 120 b, 323, 324, 326, 441, 427, 506 (ii), 307, 153 a, 201, 212 read with sec. 149 i.p.c. and sec. 3 of the explosive substances act, 1908 and sections 15, 16, 18, 18 b , 19 and 20 of the unlawful activities (prevention) act, 1967. 2. b.a. 5134 of 2010 is filed by a2 who was arrested on 4-7-2010. b.a. no. 5795 of 2010 is filed by a15 and a16 who were arrested on 23-7-2010 and 24-7-2010 respectively. b.a. 5824 of 2010 is filed by a7 who was arrested on 9-7-2010. b.a. 5940 of 2010 is filed by a43 and a48 who were arrested on 7-8-2010. b.a. 5950 of 2010 is filed by a19 who was arrested on 25-7-2010. b.a. 6017 of 2010 is filed by a47 who was arrested on 7-8-2010. b.a. 6186/2010 is filed by a1 who was arrested on 4-7-2010. as on today (i.e. 26-10-2010), a1 and a2 have completed 114 days, a15 and a16 have completed 95 and 94 days respectively, a43, a47 and a48 have completed 80 days, a7 has completed 109 days and a19 has completed 93 days of detention. 25 persons have so far been arrested and 28 more are yet to be arrested. the weapons used for the assault are still to be recovered. 3. the case of the prosecution can be summarised as follows:-the prosecution casepursuant to the criminal conspiracy hatched by the leaders and activists of the popular front of india ("p.f.i." for short) and its political wing called social democratic party of india ("sdpi" for short), on 4-7-2010 at about 8 a.m. seven identifiable persons (a14, a27, a28, a37, a49, a50 and a51) formed themselves into an unlawful assembly armed with deadly weapons like hatchet , chopper, explosives etc. came in a maruti omni van affixing a false registration number and intercepted a wagon r car in which a professor of newman college, thodupuzha by name t.j. joseph, his sister who is a nun and mother were returning home after attending the sunday mass at nirmala matha church . the seven accused persons who were waiting on the road leading to the professor's house near the nirmala public senior secondary school at hostelpadi, muvattupuzha suddenly got out of the omini van and smashed the window panes and side panes of the professor's car. they pulled the professor out of the wagon r car and dragged him on to the road. one of the accused, (a37) with the assistance of the other co-accused repeatedly inflicted cuts on the right palm of the professor with the hatchet resulting in amputation of the right palm of the professor. several cut injuries were inflicted by the assailants on various parts of the body of the professor. sr. stella who was in the car along with the professor was also manhandled and restrained from going to the rescue of her brother. 81 year old elikutty , the mother of the professor was also not spared by the assailants. salomy, the wife of the professor (who is the de facto complainant) and midhun, the son of the professor rushed to the scene of occurrence seeing the incident. they were threatened and intimidated by the assailants who threw country bombs causing explosion and smoke. midhun who went to the rescue of his father had inflicted a cut injury on the back of a37. the assailants lifted midhun and threw him into a nearby compound lying at a lower level of 4.10 metres resulting in the boy sustaining injuries. hearing the sound of explosion and the hue and cry when the local people started pouring in, the assailants escaped from the scene in the maruti omni van after throwing the severed palm of the professor into the nearby compound. the motive for the assault on the professor is stated to be the incorporation by him of a question ridiculing prophet mohammed and the islam religion in a question paper set for the internal examination in malayalam for the b.com course in newman college. 4. i heard advocate sri. t.g. rajendran, the learned counsel appearing for the petitioners in b.a. nos. 5940, 5950, 6017 and 6186 of 2010. advocate sri. sunny mathew, the learned counsel appearing for the petitioners in b.a. 5795 of 2010. advocate sri. s. rajeev, the learned counsel appearing for the petitioner in b.a. 5134 of 2010 and adv. sri. life p. francis, the learned counsel appearing for the petitioner in b.a. 5824 of 2010 and also adv.sri. p.n. sukumaran, the learned addl. director general of prosecution appearing for the state. petitioners' argument 5. the main submissions made on behalf of the petitioners are the following:- no useful purpose will be served by the continued detention of the petitioners who have already been interrogated and whose police custody had also been obtained. eventhough, in the initial remand reports the police took the stand that a1 to a7 were the assailants who formed the unlawful assembly, it was later conceded that the assailants were a14, a27, a28, a37, a49, a50 and a51 and that none of the petitioners herein had any role in the actual assault on the professor. on 28-09-2010 the assistant public prosecutor in-charge of the j.f.c.m., muvattupuzha filed a report under sec. 43 d(2) (b) of the unlawful activities (prevention act), 1967, seeking extension of the period of detention of the accused persons up to 180 days. on 30-09-2010 the learned magistrate has passed an omnibus order extending the detention of the accused persons from 90 days to 180 days. a copy of the report filed by the a.p.p. was not furnished to the petitioners and the petitioners were not given an opportunity of being heard before the learned magistrate passed the above order. moreover , going by the offences under the unlawful activities (prevention) act, a court of session alone can deal with the accused during the crime stage and a report under sec. 43 (d) (2) (b) of the said act could be filed only by the public prosecutor and not the assistant public prosecutor. separate reports had to be filed in respect of each and every accused and the progress of the investigation and specific reasons for extending the detention of each and every accused had to be indicated in the report . in the case of similar provisions under the tada and the n.d.p.s. act, the apex court has held in hitendra vishnu thakur and others v. state of maharashtra and others - jt 1994 (4) sc 255 and sanjay kumar kedia @ sanjay kedia v. intelligence officer, narcotic control bureau and another - 2010 (1) kld 539 (sc) that before extending the detention of the accused they are entitled to notice of the report and an opportunity of being heard. apart from the fact that the petitioners have been denied the above rights, the learned magistrate had absolutely no jurisdiction to deal with the matter with effect from 12-8-2010 when the offences under the unlawful activities prevention act, 1967, were incorporated. objection of the state prosecutor6. the learned addl. director general of prosecution on the other hand made the following submissions before me countering the aforesaid arguments: - all the offences under the unlawful activities (prevention) act incorporated in this case are punishable with imprisonment for more than 7 years. therefore, those offences are exclusively triable by a court of session by virtue of part ii of the first schedule to the cr.p.c. the role of the sessions judge will arise only at the time of the trial of the offences and not before. eventhough the definition of "court" under sec. 2 (d) of the said act includes a special court constituted under the national investigation agency act, no special court has been constituted by the state government under the n.i.a. act. hence, the aforesaid offences will have to be tried by the sessions court. a reading of sections 11 and 22 of the n.i. a. act will go to show that the special court is to be constituted only for the trial of the case. therefore, it is only for the trial of the case that the sessions court also will have to be approached. in the light of the decision in gangula ashok v. state of a.p. - air 2000 sc 740 the sessions court can take cognizance of the offences only on a committal. if so, until the case is committed to the court of session under sec. 209 cr.p.c. it is the magistrate who can deal with the matter. hence, there is nothing wrong in the magistrate at muvattupuzha dealing with the case at the crime stage. the definition of the expression "court" under section 2 (d) of the unlawful activities (prevention ) act, can be adopted only if it fits in with the context and not when the context otherwise requires . the context under section 43 d (2) (b) of the said act is such that the definition of the expression "court" is not to be adopted. there are offences in the unlawful activities (prevention) act such as sections 10 to 13 which are punishable with imprisonment for less than 5 years. going by the first schedule of cr.p.c. those offences are triable by the magistrate of the first class. if the argument of the petitioners is driven to its logical conclusion, then in a case where the offences involved are only those punishable under sections 10 to 13, those offences also will have to be dealt with by a court of session. it is true that section 43 d (2) (b) only mentions about the public prosecutor whereas it is the assistant public prosecutor who is in-charge of a magistrate's court by virtue of sec. 25 cr.p.c. but then, sec. 302 cr.p.c. makes it clear that even a public prosecutor can appear before a magistrate without the permission of the magistrate. the requirement of a written notice to the accused before consideration of the report of the public prosecutor as insisted upon in hitendra vishnu's case has been whittled down by a constitution bench of the supreme court in sanjay dutt v. state - 1995 crl. l.j. 477 at paragraph 55 (2)(a) to hold that no written notice giving reasons therein need be given to the accused and that it will be sufficient if the accused is produced before court and informed that the question of extension of the period of detentions is being considered. all the petitioners must have been produced before the magistrate and therefore it is futile for the petitioners to contend that they were unaware of the consideration by the magistrate of the extension of their period of detention ordered in their presence. all the petitioners were involved in the criminal conspiracy hatched for the murderous assault on the professor. direct evidence of criminal conspiracy is difficult to obtain. there are 28 more accused persons remaining to be arrested. this was a terrorist activity carried on at the threat of the security of the state. the petitioners are not entitled to be enlarged on bail at this stage when the investigation is still in progress. if released on bail, they will definitely make themselves scarce and will flee from justice. judicial evaluation7. on hearing both sides at length i am inclined to accept the contentions of the petitioners regarding the lack of authority of the magistrate to deal with the case after the incorporation of the offences under the unlawful activities (prevention) act, 1967 (the "u.a. act" for short). the following reasons persuade me to hold the said view:-a. as per section 43 d (2) (b) of the u.a. act, two more provisos have been added to section 167 (2) cr.p.c. after the proviso thereto. under the first proviso so added by sec. 43 d (2) (b) of the u.a. act the "court" is empowered to extend the period of detention of an accused person beyond 90 days and up to 180 days if the court is satisfied with the report of the public prosecutor indicating the progress of the investigation and the specific reason given for the detention of the accused person beyond 90 days. the first proviso added by section 43 d (2) (b) of the u.a. act reads as follows:- "provided further that if it is not possible to complete the investigation within the staid period of ninety days, the court may if it is satisfied with the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the sand period of ninety days, extend the sand period up to one hundred and eighty days": the expression "court" in the above provision can only mean a court as defined under section 2 (d) of the u.a. act. section 2 (d) defines the expression "court" as follows:- (d) "court" means a criminal court having jurisdiction, under the code, to try offences under this act and includes a special court constituted under section 11 or under section 21 of the national investigation agency act, 2008". under the national investigation agency act, 2008 (the "n.i.a. act" for short) the central government is given the power to constitute a special court under section 11 thereof and the state government is given the power to constitute a special court under section 22 thereof. the mention of sec. 21 of the n.i.a. act in the definition of court under section 2 (d) of the u.a. act is an obvious mistake for sec. 22 of the n.i.a. act. thus, going by the definition of the word "court in the u.a. act it is that criminal court having jurisdiction under the cr.p.c. to try offences under the act which is to be understood as the "court" and it includes a special court constituted under the n.i.a.act either by the central government or by the state government. admittedly, the state government has not constituted any special court in the state of kerala in exercise of its powers under sec. 22 of the n.i.a.act. but, there is no dispute that the central government has constituted the special court, spe/cbi-i, and kochi as the special court under sec. 11 of the n.i.a. act. the u.a. act is a "scheduled offence" enumerated in the schedule of the n.i.a. act and falling under the definition of "scheduled offence" in sec. 2 (f) thereof. sec. 13 of the n.i.a. act would indicate that every scheduled offence investigated by the national investigation agency has to be tried by the special court constituted by the central government under sec.11 of the n.i.a. act. in the case on hand eventhough the state government claims to have submitted a report to the central government under sec. 6 of the n.i.a. act, as on today the investigation of the present case has not been taken over by the national investigation agency. the investigation of the case on hand is still conducted by the dy.s.p. muvattupuzha . b. in view of sec. 10 of the n.i.a. act, the power of the state government to investigate and prosecute any scheduled offence is subject to the provisions of the n.i.a. act. section 43 of the u.a. act specifies the officers competent to investigate the offences in question and by virtue of clause (c) thereof, the present offences cannot be investigated by a police officer below the rank of a dy.s.p. hence with effect from 12-08-2010 when the offences under the u.a. act were incorporated, the investigation of the present crime was taken over by the dy.s.p. muvattupuzha. c. section 22 of the n.i.a. act reads as follows:- "22. power of the state government to constitute special courts:(1) the state government may constitute one or more special courts for the trial of offences under any or all the enactments specified in the schedule. (2) the provisions of this chapter shall apply to the special courts constituted by the state government under sub-section (1) and shall have effect subject to the following modifications, namely:- (i) references to "central government" in sections 11 and 15 shall be constituted as references to state government. (ii) reference to "agency" in sub-section (1) of section 13 shall be construed as a reference to the "investigation agency of the state government". (3) the jurisdiction conferred by this act on a special court shall, until a special court is constituted by the state government under sub-section (1) in the case of any offence punishable under this act,notwithstanding anything contained in the code, be exercised by the court of session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this chapter. (4) on and from the date when the special court is constituted by the state government the trial of any offence investigated by the state government under the provisions of this act, which would have been required to be held before the special court, shall stand transferred to that court on the date on which it is constituted". thus, under sec. 22 (3) of the n.i.a. act, until a special court is constituted by the state government, the jurisdiction conferred by the n.i.a. act on the special court is to be exercised by the court of session notwithstanding anything contained in the cr.p.c. such jurisdiction is to be exercised by the sessions court in the case of any offence punishable under the n.i.a. act. the u.a. act is a "scheduled offence" punishable under the n.i.a. act and, therefore, till the special court is constituted by the state government, it is the sessions court within the limits of which the offences were committed, which has to try the offences. the court of session has to follow the same procedure which is laid down for the special court under chapter iv of the n.i.a. act. under sec. 16 (1) of the n.i.a. act the special court is empowered to take cognizance of any offence either on a complaint or on a police report without a committal. since the sessions court is also to follow the same procedure, that court is also empowered to take cognizance of the offences without a committal. the above procedure of the special court is analogous to the procedure followed by the special court under the narcotic drugs and psychotropic substances act, 1985 ("the n.d.p.s. act" for short). while sec. 16 (1) of the n.i.a. act is similar to section 36 a (1) (d) of the n.d.p.s. act empowering the special court to take cognizance of the offences without a committal, the n.d.p.s. act does not contain a provision similar to section 22 (3) of the n.i.a. act which says that the sessions court shall have all the powers of the special court and shall follow the same procedure provided under chapter iv of the n.i.a. act. on the contrary, what section 36 d of the n.d.p.s. act provides is that until the special court is constituted under section 36 thereof, the offences shall be tried by a court of session. the procedure to be followed by a court of session is not prescribed under the n.d.p.s. act. hence the sessions court, under the n.d.p.s. act will have to try the offences by recourse to the procedure under the cr.p.c. as per which the sessions court can take cognizance of the offence only on a committal as provided under section 193 cr.p.c. d. when as per the scheme of the n.i.a. act until the special court is constituted by the state government, it is the sessions court which is to try the scheduled offences and that too without a committal, the sessions court alone can extend the remand after the initial period of 30 days by virtue of sec. 167 cr.p.c. as modified by sec. 43 d (2) of the u.a. act. under sec. 167 (2) cr.p.c. while the first remand of the accused for the initial period of 15 days can be authorised by any magistrate (the nearest magistrate) whether he has jurisdiction or not to try the offence, further action like remand extension, release of the accused from custody when it is considered that further detention is unnecessary, committal of the case to the court of session, trial etc. can be taken only by the magistrate having jurisdiction to commit or try the offences. thus, in the case of an offence punishable under the u.a. act, while it is permissible to produce the accused for the purpose of first remand before the nearest magistrate (whether he has jurisdiction or not to try the offence), the extension of remand can be ordered only by the sessions court which alone is competent to try the offences. e. sec. 15 of the n.i.a. act provides for the appointment before the special court, of public prosecutors and addl. public prosecutors who are deemed to be public prosecutors within the meaning of sec. 2 (u) cr.p.c. that is the reason why the first proviso added by section 43 d (2) (b) of the u.a. act refers to the report of a public prosecutor. if it was the magistrate who was to extend the period of detention beyond 90 days, then the legislature would have included the assistant public prosecutor also for the purpose of submitting a report for the extension of the period of detention. as per sec. 25 cr.p.c. prosecution in the courts of magistrate is to be conducted by the assistant public prosecutors. reliance placed on section 302 cr.p.c. by the state public prosecutor is of no avail to him. the purpose of sec. 302 cr.p.c. is not to allow the public prosecutor to conduct the prosecution before the magistrate courts. the said provision only says that while the advocate general, government advocate, public prosecutor or the assistant public prosecutor do not require any permission of the magistrate to conduct the prosecution, all other persons require the permission of the magistrate to conduct the prosecution. f. it is true that there are offences like those under sections 10 to 13 of the u.a. act which are punishable only with imprisonment for less than 5 years and going by part ii of the first schedule to cr.p.c. those offences are triable by judicial magistrates of the first class. but then, in the light of the wording of sec. 22 (3) of the n.i.a. act indicating that the jurisdiction conferred on the special court shall be exercised by a court of session in the case of any offence under the act, whatever be the punishment prescribed for the offences, all offences under the u.a. act are to be tried by the court of session which alone can deal with the case from the stage of remand extension. hence, after the incorporation of the offences under the u.a. act, the power of remand extension in this case could have been exercised only by the court of session since the muvattupuzha magistrate was not a committal court. 8. as for the alleged requirement of notice to the accused while the court is considering the report of the public prosecutor under the first proviso added by section 43 d (2) (b) of the u.a. act, a plain reading of the provision indicates that there is no such obligation under the said provision. the requirement of notice was read into a similar provision in the tada by the two judges' bench decision of the apex court in hitendra vishnu's case (supra). but, as rightly contended by the learned addl. director general of prosecution, the interpretation placed by the apex court in hitendra vishnu's case (supra) construing the similar provision in the tada has been whittled down by the constitution bench in sanjay dutt's case (supra) and it is now enough if the accused are produced before the court at the time of consideration of the public prosecutor's report for extension of the period of detention and the accused are informed that the court is considering the question of extension of the period of their detention. 9. thus, the position which emerges from the above discussion is that after the first remand by the nearest magistrate, it is the court of session which alone can extend the remand and pass orders under sec. 43 d (2) (b) of the u.a. act extending the period of detention beyond 90 days and up to 180 days in individual cases after considering the report or reports of the public prosecutor. but i hasten to add that this resultant legal position is due to the combined effect of the u.a. act and the n.i.a. act. had it not been for the coming into force of the n.i.a. act with effect from 31-12-2008, the position in relation to the offences punishable under the u.a. act would have probably been as canvassed by the learned addl. director general of prosecution. 10. in the light of what has been discussed above and taking into account the proceedings before the magistrate who passed the order dated 30-09-2010 extending the period of detention of the accused persons, the inescapable conclusion is that the said proceedings are vitiated due to the following reasons:- i) the magistrate had no jurisdiction to pass an order under the first proviso inserted by sec. 43 d (2) (b) of the u.a. act. it is only the sessions court concerned which has jurisdiction to pass an order as above. ii) the assistant public prosecutor in-charge of the court of the judicial magistrate of the first class, muvattupuzha had no locus standi to submit a report under the aforesaid proviso seeking extension of the period of detention. the public prosecutor alone is competent to file a report and that too before the sessions court having jurisdiction. iii) the accused persons were not produced before the magistrate on the date on which the order dated 30-09-2010 was passed. the non-prosecution of the accused was due to the non-availability of police escort from the central prison, viyyur in view of the ayodhya verdict. (vide the letter dated 21-10- 2010 of the magistrate received in b.a. 5134 of 2010). hence, there was no occasion or possibility for the magistrate to inform the accused about the consideration of the question of extending the period of their detention beyond 90 days. iv) separate reports giving the details insisted by the aforesaid proviso were not filed in respect of each and every accused. the only report filed, and that too, by the assistant public prosecutor was an omnibus report which did not give the reasons in relation to each and every accused. 11. since the final report under section 173 (2) cr.p.c. has not been laid before the magistrate so far and also since the extension of the period of detention of the accused persons beyond 90 days was passed by the magistrate without any jurisdiction to do so, such of the accused persons who have completed 90 days of detention, would have, in the normal course, been entitled to be released on default bail under the first proviso to sec. 167 (2) cr.p.c. but then, the offences alleged against the petitioners are very grave offences involving terrorist activity. not only the investigating agency but also the asst. public prosecutor, the advocates appearing for the accused persons and even the magistrate were all in the dark and blissfully ignorant about the impact of the provisions of the n.i.a. act. the jurisdiction of the magistrate to extend the remand of the accused persons was not questioned by anybody at any point of time. everybody proceeded on the footing that the magistrate at muvattupuzha was the committal court having jurisdiction to deal with the case during the crime stage. even during the hearing of the previous batch of bail applications before the high court, the want of jurisdiction of the magistrate to extend the remand period of the accused persons in view of the operation of the n.i.a. act, was not argued before the high court. the high court also did not notice the true legal position as aforesaid. i am, therefore, not inclined to straightaway direct the release of those petitioners who have completed 90 days of detention. i am of the considered view that the matter has to be dealt with by the court of session, ernakulam which should be given an opportunity to consider the necessary report/reports under sec. 43 d (2) (b) of the u.a. act to be filed by the public prosecutor concerned. in order to facilitate the court of session to deal with the matter the j.f.c.m., muvattupuzha is directed to transmit all records in crime no. 704 of 2010 of muvattupuzha police station to the sessions court, ernakulam within one week of receipt of a copy of this common order. the public prosecutor attached to the sessions court, ernakulam shall file the necessary report/reports under sec. 43 d (2) (b) of the u.a. act before that court within 10 days of receipt of a copy of this order. the sessions judge shall, thereupon pass orders on the sand report/reports expeditiously, after causing production of the accused persons before court and after informing them about the consideration by the court of such report/reports of the public prosecutor. until then, the remand of the accused persons shall be extended by the sessions judge for appropriate periods, unless he finds good reasons for the release of any of the accused persons. all requests for remand extension of any of the accused persons shall hereafter be made before the court of session, ernakulam. these bail applications are disposed of above.

Judgment:
1. These are applications for regular bail filed by 9 among the 25 accused persons who are in custody in Crime No. 704 of 2010 of Muvattupuzha Police Station for offences punishable under Sections 143, 147, 148, 120 B, 323, 324, 326, 441, 427, 506 (ii), 307, 153 A, 201, 212 read with Sec. 149 I.P.C. and Sec. 3 of the Explosive Substances Act, 1908 and Sections 15, 16, 18, 18 B , 19 and 20 of the Unlawful Activities (Prevention) Act, 1967.

2. B.A. 5134 of 2010 is filed by A2 who was arrested on 4-7-2010. B.A. No. 5795 of 2010 is filed by A15 and A16 who were arrested on 23-7-2010 and 24-7-2010 respectively. B.A. 5824 of 2010 is filed by A7 who was arrested on 9-7-2010. B.A. 5940 of 2010 is filed by A43 and A48 who were arrested on 7-8-2010. B.A. 5950 of 2010 is filed by A19 who was arrested on 25-7-2010. B.A. 6017 of 2010 is filed by A47 who was arrested on 7-8-2010. B.A. 6186/2010 is filed by A1 who was arrested on 4-7-2010. As on today (i.e. 26-10-2010), A1 and A2 have completed 114 days, A15 and A16 have completed 95 and 94 days respectively, A43, A47 and A48 have completed 80 days, A7 has completed 109 days and A19 has completed 93 days of detention. 25 persons have so far been arrested and 28 more are yet to be arrested. The weapons used for the assault are still to be recovered.

3. The case of the prosecution can be summarised as follows:-

THE PROSECUTION CASE

Pursuant to the criminal conspiracy hatched by the leaders and activists of the Popular Front of India ("P.F.I." for short) and its political wing called Social Democratic party of India ("SDPI" for short), on 4-7-2010 at about 8 a.m. seven identifiable persons (A14, A27, A28, A37, A49, A50 and A51) formed themselves into an unlawful assembly armed with deadly weapons like hatchet , chopper, explosives etc. came in a Maruti Omni Van affixing a false registration number and intercepted a Wagon R Car in which a Professor of Newman College, Thodupuzha by name T.J. Joseph, his sister who is a nun and mother were returning home after attending the Sunday Mass at Nirmala Matha Church . The seven accused persons who were waiting on the road leading to the Professor's house near the Nirmala Public Senior Secondary School at Hostelpadi, Muvattupuzha suddenly got out of the Omini Van and smashed the window panes and side panes of the Professor's car. They pulled the professor out of the Wagon R car and dragged him on to the road. One of the accused, (A37) with the assistance of the other co-accused repeatedly inflicted cuts on the right palm of the Professor with the hatchet resulting in amputation of the right palm of the Professor. Several cut injuries were inflicted by the assailants on various parts of the body of the Professor. Sr. Stella who was in the car along with the professor was also manhandled and restrained from going to the rescue of her brother. 81 year old Elikutty , the mother of the Professor was also not spared by the assailants. Salomy, the wife of the Professor (who is the de facto complainant) and Midhun, the son of the Professor rushed to the scene of occurrence seeing the incident. They were threatened and intimidated by the assailants who threw country bombs causing explosion and smoke. Midhun who went to the rescue of his father had inflicted a cut injury on the back of A37. The assailants lifted Midhun and threw him into a nearby compound lying at a lower level of 4.10 metres resulting in the boy sustaining injuries. Hearing the sound of explosion and the hue and cry when the local people started pouring in, the assailants escaped from the scene in the Maruti Omni Van after throwing the severed palm of the Professor into the nearby compound. The motive for the assault on the Professor is stated to be the incorporation by him of a question ridiculing Prophet Mohammed and the Islam religion in a question paper set for the internal examination in Malayalam for the B.Com course in Newman College.

4. I heard Advocate Sri. T.G. Rajendran, the learned counsel appearing for the petitioners in B.A. Nos. 5940, 5950, 6017 and 6186 of 2010. Advocate Sri. Sunny Mathew, the learned counsel appearing for the petitioners in B.A. 5795 of 2010. Advocate Sri. S. Rajeev, the learned counsel appearing for the petitioner in B.A. 5134 of 2010 and Adv. Sri. Life P. Francis, the learned counsel appearing for the petitioner in B.A. 5824 of 2010 and also Adv.Sri. P.N. Sukumaran, the learned Addl. Director General of Prosecution appearing for the State.

PETITIONERS' ARGUMENT

5. The main submissions made on behalf of the petitioners are the following:- No useful purpose will be served by the continued detention of the petitioners who have already been interrogated and whose police custody had also been obtained. Eventhough, in the initial remand reports the police took the stand that A1 to A7 were the assailants who formed the unlawful assembly, it was later conceded that the assailants were A14, A27, A28, A37, A49, A50 and A51 and that none of the petitioners herein had any role in the actual assault on the Professor. On 28-09-2010 the Assistant Public Prosecutor in-charge of the J.F.C.M., Muvattupuzha filed a report under Sec. 43 D(2) (b) of the Unlawful Activities (Prevention Act), 1967, seeking extension of the period of detention of the accused persons up to 180 days. On 30-09-2010 the learned Magistrate has passed an omnibus order extending the detention of the accused persons from 90 days to 180 days. A copy of the report filed by the A.P.P. was not furnished to the petitioners and the petitioners were not given an opportunity of being heard before the learned Magistrate passed the above order. Moreover , going by the offences under the Unlawful Activities (Prevention) Act, a Court of Session alone can deal with the accused during the crime stage and a report under Sec. 43 (D) (2) (b) of the said Act could be filed only by the Public Prosecutor and not the Assistant Public Prosecutor. Separate reports had to be filed in respect of each and every accused and the progress of the investigation and specific reasons for extending the detention of each and every accused had to be indicated in the report . In the case of similar provisions under the TADA and the N.D.P.S. Act, the Apex Court has held in Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others - JT 1994 (4) SC 255 and Sanjay Kumar Kedia @ Sanjay Kedia v. Intelligence Officer, Narcotic Control Bureau and Another - 2010 (1) KLD 539 (SC) that before extending the detention of the accused they are entitled to notice of the report and an opportunity of being heard. Apart from the fact that the petitioners have been denied the above rights, the learned Magistrate had absolutely no jurisdiction to deal with the matter with effect from 12-8-2010 when the offences under the Unlawful Activities Prevention Act, 1967, were incorporated.

OBJECTION OF THE STATE PROSECUTOR

6. The learned Addl. Director General of Prosecution on the other hand made the following submissions before me countering the aforesaid arguments: -

All the offences under the Unlawful Activities (Prevention) Act incorporated in this case are punishable with imprisonment for more than 7 years. Therefore, those offences are exclusively triable by a Court of Session by virtue of Part II of the First Schedule to the Cr.P.C. The role of the Sessions Judge will arise only at the time of the trial of the offences and not before. Eventhough the definition of "Court" under Sec. 2 (d) of the said Act includes a Special Court constituted under the National Investigation Agency Act, no Special Court has been constituted by the State Government under the N.I.A. Act. Hence, the aforesaid offences will have to be tried by the Sessions Court. A reading of Sections 11 and 22 of the N.I. A. Act will go to show that the Special Court is to be constituted only for the trial of the case. Therefore, it is only for the trial of the case that the Sessions Court also will have to be approached. In the light of the decision in Gangula Ashok v. State of A.P. - AIR 2000 SC 740 the Sessions Court can take cognizance of the offences only on a committal. If so, until the case is committed to the Court of Session under Sec. 209 Cr.P.C. it is the Magistrate who can deal with the matter. Hence, there is nothing wrong in the Magistrate at Muvattupuzha dealing with the case at the crime stage. The definition of the expression "Court" under Section 2 (d) of the Unlawful Activities (Prevention ) Act, can be adopted only if it fits in with the context and not when the context otherwise requires . The context under Section 43 D (2) (b) of the said Act is such that the definition of the expression "Court" is not to be adopted. There are offences in the Unlawful Activities (Prevention) Act such as Sections 10 to 13 which are punishable with imprisonment for less than 5 years. Going by the First Schedule of Cr.P.C. those offences are triable by the Magistrate of the First Class. If the argument of the petitioners is driven to its logical conclusion, then in a case where the offences involved are only those punishable under Sections 10 to 13, those offences also will have to be dealt with by a Court of Session. It is true that Section 43 D (2) (b) only mentions about the Public Prosecutor whereas it is the Assistant Public Prosecutor who is in-charge of a Magistrate's Court by virtue of Sec. 25 Cr.P.C. But then, Sec. 302 Cr.P.C. makes it clear that even a Public Prosecutor can appear before a Magistrate without the permission of the Magistrate. The requirement of a written notice to the accused before consideration of the report of the Public Prosecutor as insisted upon in Hitendra Vishnu's case has been whittled down by a Constitution Bench of the Supreme Court in Sanjay Dutt v. State - 1995 Crl. L.J. 477 at paragraph 55 (2)(a) to hold that no written notice giving reasons therein need be given to the accused and that it will be sufficient if the accused is produced before Court and informed that the question of extension of the period of detentions is being considered. All the petitioners must have been produced before the Magistrate and therefore it is futile for the petitioners to contend that they were unaware of the consideration by the Magistrate of the extension of their period of detention ordered in their presence. All the petitioners were involved in the criminal conspiracy hatched for the murderous assault on the Professor. Direct evidence of criminal conspiracy is difficult to obtain. There are 28 more accused persons remaining to be arrested. This was a terrorist activity carried on at the threat of the security of the State. The petitioners are not entitled to be enlarged on bail at this stage when the investigation is still in progress. If released on bail, they will definitely make themselves scarce and will flee from justice.

JUDICIAL EVALUATION

7. On hearing both sides at length I am inclined to accept the contentions of the petitioners regarding the lack of authority of the Magistrate to deal with the case after the incorporation of the offences under the Unlawful Activities (Prevention) Act, 1967 (the "U.A. Act" for short). The following reasons persuade me to hold the said view:-

A. As per Section 43 D (2) (b) of the U.A. Act, two more provisos have been added to Section 167 (2) Cr.P.C. after the proviso thereto. Under the first proviso so added by Sec. 43 D (2) (b) of the U.A. Act the "Court" is empowered to extend the period of detention of an accused person beyond 90 days and up to 180 days if the Court is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reason given for the detention of the accused person beyond 90 days. The first proviso added by Section 43 D (2) (b) of the U.A. Act reads as follows:-

"Provided further that if it is not possible to complete the investigation within the staid period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the sand period of ninety days, extend the sand period up to one hundred and eighty days": The expression "Court" in the above provision can only mean a Court as defined under Section 2 (d) of the U.A. Act. Section 2 (d) defines the expression "Court" as follows:-

(d) "Court" means a criminal court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 21 of the National Investigation Agency Act, 2008".

Under the National Investigation Agency Act, 2008 (the "N.I.A. Act" for short) the Central Government is given the power to constitute a Special Court under Section 11 thereof and the State Government is given the power to constitute a Special Court under Section 22 thereof. The mention of Sec. 21 of the N.I.A. Act in the definition of Court under Section 2 (d) of the U.A. Act is an obvious mistake for Sec. 22 of the N.I.A. Act. Thus, going by the definition of the word "Court in the U.A. Act it is that criminal court having jurisdiction under the Cr.P.C. to try offences under the Act which is to be understood as the "Court" and it includes a Special Court constituted under the N.I.A.Act either by the Central Government or by the State Government. Admittedly, the State Government has not constituted any Special Court in the State of Kerala in exercise of its powers under Sec. 22 of the N.I.A.Act. But, there is no dispute that the Central Government has constituted the Special Court, SPE/CBI-I, and Kochi as the Special Court under Sec. 11 of the N.I.A. Act. The U.A. Act is a "scheduled offence" enumerated in the Schedule of the N.I.A. Act and falling under the definition of "scheduled offence" in Sec. 2 (f) thereof. Sec. 13 of the N.I.A. Act would indicate that every scheduled offence investigated by the National Investigation Agency has to be tried by the Special Court constituted by the Central Government under Sec.11 of the N.I.A. Act. In the case on hand eventhough the State Government claims to have submitted a report to the Central Government under Sec. 6 of the N.I.A. Act, as on today the investigation of the present case has not been taken over by the National Investigation Agency. The investigation of the case on hand is still conducted by the Dy.S.P. Muvattupuzha .

B. In view of Sec. 10 of the N.I.A. Act, the power of the State Government to investigate and prosecute any scheduled offence is subject to the provisions of the N.I.A. Act. Section 43 of the U.A. Act specifies the officers competent to investigate the offences in question and by virtue of clause (c) thereof, the present offences cannot be investigated by a police officer below the rank of a Dy.S.P. Hence with effect from 12-08-2010 when the offences under the U.A. Act were incorporated, the investigation of the present crime was taken over by the Dy.S.P. Muvattupuzha. C. Section 22 of the N.I.A. Act reads as follows:-

"22. Power of the State government to constitute Special courts:

(1) The State Government may constitute one or more Special Courts for the trial of offences under any or all the enactments specified in the Schedule.

(2) The provisions of this Chapter shall apply to the Special Courts constituted by the State Government under sub-section (1) and shall have effect subject to the following modifications, namely:-

(i) References to "Central Government" in sections 11 and 15 shall be constituted as references to State Government.

(ii) Reference to "Agency" in sub-section (1) of section 13 shall be construed as a reference to the "Investigation agency of the State Government".

(3) The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is constituted by the State Government under sub-section (1) in the case of any offence punishable under this Act,notwithstanding anything contained in the code, be exercised by the Court of Session of the division in which such offence has been committed and it shall have all the powers and follow the procedure provided under this Chapter.

(4) On and from the date when the Special Court is constituted by the State Government the trial of any offence investigated by the State Government under the provisions of this Act, which would have been required to be held before the Special Court, shall stand transferred to that Court on the date on which it is constituted".

Thus, under Sec. 22 (3) of the N.I.A. Act, until a Special Court is constituted by the State Government, the jurisdiction conferred by the N.I.A. Act on the Special Court is to be exercised by the Court of Session notwithstanding anything contained in the Cr.P.C. Such jurisdiction is to be exercised by the Sessions Court in the case of any offence punishable under the N.I.A. Act. The U.A. Act is a "scheduled offence" punishable under the N.I.A. Act and, therefore, till the Special Court is constituted by the State Government, it is the Sessions Court within the limits of which the offences were committed, which has to try the offences. The Court of Session has to follow the same procedure which is laid down for the Special Court under Chapter IV of the N.I.A. Act. Under Sec. 16 (1) of the N.I.A. Act the Special Court is empowered to take cognizance of any offence either on a complaint or on a police report without a committal. Since the Sessions Court is also to follow the same procedure, that Court is also empowered to take cognizance of the offences without a committal. The above procedure of the Special Court is analogous to the procedure followed by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the N.D.P.S. Act" for short). While Sec. 16 (1) of the N.I.A. Act is similar to Section 36 A (1) (d) of the N.D.P.S. Act empowering the Special Court to take cognizance of the offences without a committal, the N.D.P.S. Act does not contain a provision similar to Section 22 (3) of the N.I.A. Act which says that the Sessions Court shall have all the powers of the Special Court and shall follow the same procedure provided under Chapter IV of the N.I.A. Act. On the contrary, what Section 36 D of the N.D.P.S. Act provides is that until the Special Court is constituted under Section 36 thereof, the offences shall be tried by a Court of Session. The procedure to be followed by a Court of Session is not prescribed under the N.D.P.S. Act. Hence the Sessions Court, under the N.D.P.S. Act will have to try the offences by recourse to the procedure under the Cr.P.C. as per which the Sessions Court can take cognizance of the offence only on a committal as provided under Section 193 Cr.P.C.

D. When as per the scheme of the N.I.A. Act until the Special Court is constituted by the State Government, it is the Sessions Court which is to try the scheduled offences and that too without a committal, the Sessions Court alone can extend the remand after the initial period of 30 days by virtue of Sec. 167 Cr.P.C. as modified by Sec. 43 D (2) of the U.A. Act. Under Sec. 167 (2) Cr.P.C. while the first remand of the accused for the initial period of 15 days can be authorised by any Magistrate (the nearest Magistrate) whether he has jurisdiction or not to try the offence, further action like remand extension, release of the accused from custody when it is considered that further detention is unnecessary, committal of the case to the Court of Session, trial etc. can be taken only by the Magistrate having jurisdiction to commit or try the offences. Thus, in the case of an offence punishable under the U.A. Act, while it is permissible to produce the accused for the purpose of first remand before the nearest Magistrate (whether he has jurisdiction or not to try the offence), the extension of remand can be ordered only by the Sessions Court which alone is competent to try the offences.

E. Sec. 15 of the N.I.A. Act provides for the appointment before the Special Court, of Public Prosecutors and Addl. Public Prosecutors who are deemed to be Public Prosecutors within the meaning of Sec. 2 (u) Cr.P.C. That is the reason why the first proviso added by Section 43 D (2) (b) of the U.A. Act refers to the report of a Public Prosecutor. If it was the Magistrate who was to extend the period of detention beyond 90 days, then the Legislature would have included the Assistant Public Prosecutor also for the purpose of submitting a report for the extension of the period of detention. As per Sec. 25 Cr.P.C. prosecution in the Courts of Magistrate is to be conducted by the Assistant Public Prosecutors. Reliance placed on Section 302 Cr.P.C. by the State Public Prosecutor is of no avail to him. The purpose of Sec. 302 Cr.P.C. is not to allow the Public Prosecutor to conduct the prosecution before the Magistrate Courts. The said provision only says that while the Advocate General, Government Advocate, Public Prosecutor or the Assistant Public Prosecutor do not require any permission of the Magistrate to conduct the prosecution, all other persons require the permission of the Magistrate to conduct the prosecution.

F. It is true that there are offences like those under Sections 10 to 13 of the U.A. Act which are punishable only with imprisonment for less than 5 years and going by Part II of the First Schedule to Cr.P.C. those offences are triable by Judicial Magistrates of the First Class. But then, in the light of the wording of Sec. 22 (3) of the N.I.A. Act indicating that the jurisdiction conferred on the Special Court shall be exercised by a Court of Session in the case of any offence under the Act, whatever be the punishment prescribed for the offences, all offences under the U.A. Act are to be tried by the Court of Session which alone can deal with the case from the stage of remand extension. Hence, after the incorporation of the offences under the U.A. Act, the power of remand extension in this case could have been exercised only by the Court of Session since the Muvattupuzha Magistrate was not a committal Court.

8. As for the alleged requirement of notice to the accused while the Court is considering the report of the Public Prosecutor under the first proviso added by Section 43 D (2) (b) of the U.A. Act, a plain reading of the provision indicates that there is no such obligation under the said provision. The requirement of notice was read into a similar provision in the TADA by the two Judges' Bench decision of the Apex Court in Hitendra Vishnu's case (supra). But, as rightly contended by the learned Addl. Director General of Prosecution, the interpretation placed by the Apex Court in Hitendra Vishnu's case (supra) construing the similar provision in the TADA has been whittled down by the Constitution Bench in Sanjay Dutt's Case (supra) and it is now enough if the accused are produced before the Court at the time of consideration of the Public Prosecutor's report for extension of the period of detention and the accused are informed that the Court is considering the question of extension of the period of their detention.

9. Thus, the position which emerges from the above discussion is that after the first remand by the nearest Magistrate, it is the Court of Session which alone can extend the remand and pass orders under Sec. 43 D (2) (b) of the U.A. Act extending the period of detention beyond 90 days and up to 180 days in individual cases after considering the report or reports of the Public Prosecutor. But I hasten to add that this resultant legal position is due to the combined effect of the U.A. Act and the N.I.A. Act. Had it not been for the coming into force of the N.I.A. Act with effect from 31-12-2008, the position in relation to the offences punishable under the U.A. Act would have probably been as canvassed by the learned Addl. Director General of Prosecution.

10. In the light of what has been discussed above and taking into account the proceedings before the Magistrate who passed the order dated 30-09-2010 extending the period of detention of the accused persons, the inescapable conclusion is that the said proceedings are vitiated due to the following reasons:-

i) The Magistrate had no jurisdiction to pass an order under the first proviso inserted by Sec. 43 D (2) (b) of the U.A. Act. It is only the Sessions Court concerned which has jurisdiction to pass an order as above.

ii) The Assistant Public Prosecutor in-charge of the Court of the Judicial Magistrate of the First Class, Muvattupuzha had no locus standi to submit a report under the aforesaid proviso seeking extension of the period of detention. The Public Prosecutor alone is competent to file a report and that too before the Sessions Court having jurisdiction.

iii) The accused persons were not produced before the Magistrate on the date on which the order dated 30-09-2010 was passed. The non-prosecution of the accused was due to the non-availability of police escort from the Central Prison, Viyyur in view of the Ayodhya verdict. (Vide the letter dated 21-10- 2010 of the Magistrate received in B.A. 5134 of 2010). Hence, there was no occasion or possibility for the Magistrate to inform the accused about the consideration of the question of extending the period of their detention beyond 90 days.

iv) Separate reports giving the details insisted by the aforesaid proviso were not filed in respect of each and every accused. The only report filed, and that too, by the Assistant Public Prosecutor was an omnibus report which did not give the reasons in relation to each and every accused.

11. Since the final report under Section 173 (2) Cr.P.C. has not been laid before the Magistrate so far and also since the extension of the period of detention of the accused persons beyond 90 days was passed by the Magistrate without any jurisdiction to do so, such of the accused persons who have completed 90 days of detention, would have, in the normal course, been entitled to be released on default bail under the first proviso to Sec. 167 (2) Cr.P.C. But then, the offences alleged against the petitioners are very grave offences involving terrorist activity. Not only the investigating agency but also the Asst. Public Prosecutor, the Advocates appearing for the accused persons and even the Magistrate were all in the dark and blissfully ignorant about the impact of the provisions of the N.I.A. Act. The jurisdiction of the Magistrate to extend the remand of the accused persons was not questioned by anybody at any point of time. Everybody proceeded on the footing that the Magistrate at Muvattupuzha was the committal Court having jurisdiction to deal with the case during the crime stage. Even during the hearing of the previous batch of bail applications before the High Court, the want of jurisdiction of the Magistrate to extend the remand period of the accused persons in view of the operation of the N.I.A. Act, was not argued before the High Court. The High Court also did not notice the true legal position as aforesaid. I am, therefore, not inclined to straightaway direct the release of those petitioners who have completed 90 days of detention. I am of the considered view that the matter has to be dealt with by the Court of Session, Ernakulam which should be given an opportunity to consider the necessary report/reports under Sec. 43 D (2) (b) of the U.A. Act to be filed by the Public Prosecutor concerned. In order to facilitate the Court of Session to deal with the matter the J.F.C.M., Muvattupuzha is directed to transmit all records in Crime No. 704 of 2010 of Muvattupuzha Police Station to the Sessions Court, Ernakulam within one week of receipt of a copy of this common order. The Public Prosecutor attached to the Sessions Court, Ernakulam shall file the necessary report/reports under Sec. 43 D (2) (b) of the U.A. Act before that Court within 10 days of receipt of a copy of this order. The Sessions Judge shall, thereupon pass orders on the sand report/reports expeditiously, after causing production of the accused persons before Court and after informing them about the consideration by the Court of such report/reports of the Public Prosecutor. Until then, the remand of the accused persons shall be extended by the Sessions Judge for appropriate periods, unless he finds good reasons for the release of any of the accused persons. All requests for remand extension of any of the accused persons shall hereafter be made before the Court of Session, Ernakulam.

These Bail Applications are disposed of above.