Thottathil B.Radhakrishnan, J.
1. These appeals are by the accused persons in S.C.No.2 of 2013 of the Special Court for trial of NIA cases, Kerala. There are two appeals. Initially, all the 21 accused persons had jointly filed application for bail on the premise that they are entitled to bail, since what is presented as the final report by the NIA is not a final report as enjoined by Code of Criminal Procedure and therefore, they are entitled to bail under Section 167(2) of the Code of Criminal Procedure. That application stands dismissed. Hence, Crl. Appeal No.1711 of 2013 arising from Crl.M.P.No.100 of 2013. The second application for bail was filed by accused Nos.8, 10, 11, 12, 14, 19 and 21 stating various personal reasons, including the reason that they are of tender age, i.e., 20 to 21 years and that on the totality of the facts and circumstances, it is no more necessary to continue them in custody and that sufficient grounds exist to enlarge them on bail under whatever conditions that may be imposed by the Court. That application also stands dismissed. That gives rise to Crl. Appeal No.1675 of 2013 arising from Crl.M.P.No.118 of 2013.
2. The learned senior counsel appearing for the accused persons in support of these appeals argued that what was presented by the NIA before the court below, as if it is a final report, is not so and notwithstanding the fact that it is shown that the NIA court is shown to have taken cognizance on the basis of that report on 19.10.2013, the said materials can never be treated as a final report and hence, the accused persons are entitled to the benefits of eligibility to bail on the expiry of the period fixed in terms of Section 167(2), as modified as per the provisions of the Unlawful Activities (Prevention) Act, 1967, for short, the 'UAP Act'. In support of the connected appeal, it is argued that the age of the accused persons who are the appellants in that case may be considered and a lenient view may be taken to enlarge them on bail.
3. Per contra, the learned Special Prosecutor for NIA argued that there is no reason whatsoever to hold that what has been presented by NIA before the court below is not a final report in terms of Section 173(2) of the Code of Criminal Procedure. He argued that the contents in paragraph 18.6 of that report on which reliance is made by the learned senior counsel for the appellants are not indicative of any element that would show that what has been produced before the court below is not a final report.
4. In its sum and substance, the argument on behalf of the appellants is that paragraph 18.6 of the final report clearly discloses that the investigation is not complete and what has been produced before the court below immediately on the day preceding the statutory period of 180 days is only a half baked and made as an incomplete report which cannot be treated as a final report under Section 173(2) of the Code of Criminal Procedure. To appreciate this argument, we think that it is appropriate to quote paragraph 18.6 of the final report, which reads as follows:
“18.6. Foreign bank transaction details are to be collected and the Call Data Records have to be further analyzed. Records pertaining to Thanal Foundation Trust need to be collected and verified. Hence, further investigation is inevitable and is in progress. Additional list of witnesses, additional statements of witnesses and additional list of documents will be filed in due course. Hence it is also prayed that further investigation u/s 173(8) Cr.PC may kindly be permitted.”
5. The learned senior counsel appearing for the appellants made reference to the decisions of this Court in Vijayaraghavan v.
C.B.I (1984 KLT 522) and in Furtado v. C.B.I (1996 (2) KLT 1) in which the Division Bench accepted the statements of law made in Vijayaraghavan (supra) and followed it as a precedent. The argument advanced by the learned senior
counsel for the appellants is that, as laid down in those precedents, when it is shown that the entire accusations against the accused persons are not based through the materials and statements in the final report, it has to be taken that what is produced is not a final report under Section 173(2) of Code of Criminal Procedure. The learned senior counsel also made reference to the decisions of the Honourable Supreme Court of India in Sayed Mohd.Ahmad Kazmi v. State (Government of NCT of Delhi) and others [(2012) 12 SCC 1] and in Vinaytyagi v. Irshad Ali Alias Deepak and others [(2013) 5 SCC 762] and also to the different precedents referred to in those judgments. It was pointedly argued that the wide spectrum of power of the investigator in terms of Section 173(2) and the investigator's authority to place supplementary reports in terms of Section 173(8) cannot be termed as available in a case where the so-called further investigation cannot be permitted to be had to bring in further facts over and above those which are part of the so-called final report already filed.
6. The learned Special Public Prosecutor for NIA made reference to Dinesh Dalmia v. C.B.I [(2007) 8 SCC 770] and argued that the facts of that case can be treated as one which on a comparative evaluation could not have been cleared, if the facts of the instant case do not get cleared for a further investigation in terms of Section 173(8). It is also argued that what has been produced before the court below is not a final report in terms of Section 173(2) of Code of Criminal Procedure and the court has taken cognizance on the basis of that report on 19.10.2013 and no question of statutory bail in terms of Section 167(2) arises.
7. As noticed by the Apex Court in Dinesh Dalmia (supra), the so-called indefeasible right under Section 167(2) with the proviso appended to that would be available only when the charge sheet is not filed and investigation is kept pending. Once the charge sheet is filed, that right ceases. Such a right does not revive only because a further investigation remains pending within the meanings of Section 173(8) of the Code of Criminal Procedure. Noticing this, we may immediately point out that Furtado (supra) and Vijayaraghavan (supra) were cases in which the further investigations were found to be over and those cases are of no precedent value to be applied in the case in hand. In view of the clear provisions contained in Section 173(8) of Code of Criminal Procedure, as noted above, the plea of the appellants, in that regard is repelled.
8. Now, reverting to the materials as can be seen from the final report, we may note that paragraph 17 of the final report deals with facts disclosed during the investigation. Paragraph 17.1 deals with Call Data Records of mobile phones used by the accused as were collected and submitted for analysis. Paragraph 17.2 deals with Bank transactions, including foreign account details of a person named in that paragraph, a native of Bhatkal in Karnataka. These details were found in the house of accused No.22. Paragraph 17.3 deals with Thanal Foundation Trust, which is shown to be the owner of the building where the alleged training was stated to be carried out. The contents of paragraph 17.3 also relate to the disclosure by the person, who was stated to be the Chairman of the Trust that he had handed over the documents relating to that Trust to the present Chairman. It is profitable to refer to paragraphs 17.1, 17.2 and 17.3 of the final report for the purpose of continuity. Those paragraphs read as follows:
“17.1 The Call Data Records (CDR) of the Mobile Phones used by accused were collected and subjected for analysis. CDR shows that the accused were present at Narath from the morning on 23.04.2013. Mobile phones of all the accused, except A2, were seized during the arrest from the scene. The phones and SIM cards recovered from the accused were sent to FSL, Thiruvananthapuram for examination and the reports are awaited. It was also revealed that some of the accused were using SIM cards taken with ID proof of some other persons. This aspect is to be investigated further.
17.2. Bank transaction details of some of the accused were collected and huge international transactions were found in the accounts of A2. Foreign account details of Sanaulla Shabandri, a native of Bhatkal in Karnataka, was found in the house of A22. The transactions in foreign bank accounts are to be collected and further investigated.
17.3. The building (No.1/576 A of Narath Panchayath) wherein the training was organized is owned by Thanal Foundation. The ownership certificate dated 02.05.2013 issued by Secretary, Narath Grama Panchayath shows that owner of the above building is Thasneemudheen K.P, Chairman, Thanal Foundation Trust. It was revealed that the above person is the President of PFI, Kannur District Committee and upon service of a notice u/s 43 (F) of UA(P) Act to produce the records of the Trust, he claimed that he was not in possession of the records and that the same were handed over to the present Chairman (A24) through one Mohamed Ajmal. Certified copy of the Deed of Declaration of the Trust was obtained from Sub Registrar Office, Valapattanam and found that the same was registered vide Document No.15/2004 as a Religious and Charitable Trust. The document was executed by Thasneemudheen.K.P, Yahya.P.P, V.K.Noufal, Mohamed Shabeer.T.M and Adv.Mohamed Shabeer as founder members of the Trust and none of them could produce any records pertaining to the said Trust even though notices were served upon them u/s 43(F) of UA(P) Act.”
9. The afore-quoted portion from out of the facts disclosed during the investigation as stated by the investigator has to be taken along with what is stated in paragraph 17.8, also among the facts disclosed. That paragraph reads as follows:
“17.8. Investigation so far conducted by Kerala Police and NIA reveals that, in pursuance of the conspiracy hatched by the accused who are the leaders and activists of PFI/SDPI to impart training in weapons and explosives to their cadres, the above accused who are activists of PFI/SDPI unlawfully assembled on 23.04.2013 from 08.30 hrs. in the building No.1/576 A of Narath Panchayath owned by Thanal Foundation, a Religious and Charitable Trust registered vide Document No.15/2004 dated 30.01.2004 in SRO, Valapattanam and run by PFI leaders and was found by the complainant at 12.15 hrs while the accused had attempted to promote feelings of enmity between different religions, especially between Muslims and Hindus, by delivering speech likely to disturb public tranquility and making assertions prejudicial to national integration and imparted training on weapons and explosives, especially in the making of country bombs and in the use of sword on human body for training to conduct terrorist activities and thus acted preparatory to the commission of terrorist acts endangering the unity and integrity of the Nation and having found so, A1 to A22 were arrested by the complainant at 16.30 hrs and the materials used for the commission of the offence were seized.”
10. With the facts stated in the final report as noted above, we are clear in our mind that the final report speaks specifically about the involvement of the foreign bank transactions and the necessity of further probing and collecting details regarding those transactions. The Call Data Records have also to be analyzed. The availability of the Call Data Records is a matter already mentioned of in the final report. The records relating to Thanal Foundation Trust have to be collected. The existence of Thanal Foundation Trust and its deal and also the availability of the documents in the custody of its present Chairman are matters mentioned in the final report. With these materials and statements having been already probed as part of the final report as among the facts disclosed in the investigation, we are unable to accept the submission on behalf of the appellants that what is required in paragraph 18.6 is not a further investigation in terms of Section 173(8) but some activity of investigation prior to the stage at which an investigation would reach to be in the form of final report in terms of Section 173(2) of the Code of Criminal Procedure. Having thus concluded, we are satisfied that what is filed before the court of first instance is a final report in terms of 173(2). That argument is, therefore, repelled.
11. We have carefully evaluated the contents of the allegations, the nature of the materials and other activities which have weighed with the court of first instance in refusing bail to the applicants, sought for on different personal grounds. We see that the court of first instance has applied its mind to all relevant facts and circumstances and has exercised its discretion in accordance with law within the format of the Code of Criminal Procedure. We see no ground to hold it as illegal, disagree with it and come to any contrary conclusion. That way also, these appeals fail.
12. For the aforesaid reasons, it is held that the court below was justified in refusing bail on both the applications. We see no ground to allow these appeals.
In the result, these appeals are dismissed.
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(THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/-
(P.B.SURESH KUMAR, JUDGE) //TRUE COPY// P.A TO JUDGE DG