IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRL.A. NO. 1699/2018 C/W CRL.A. NOs. 1701/2018, 1700/2018, 1702/2018 BETWEEN:
FASIH MEHMOOD S/O FIROZ AHAMED AGED ABOUT 34 YEARS R/AT BARH SAMAILA VILLAGE LALGUNJ POST OFFICE KOITI POLICE STATION DARBHANGA DISTRICT BIHAR – 847 121 … APPELLANT (COMMON IN ALL APPEALS) (BY SRI. S. BALAKRISHNAN, ADV) AND:
STATE OF KARNATAKA BY CUBBONPARK POLICE REP. BY SPECIAL PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 … RESPONDENT (COMMON IN ALL APPEALS) (BY SRI. SANDESH J. CHOUTA, AAG A/W SRI. S.V. GIRIKUMAR, HCGP) CRIMINAL APPEAL NO.1699/2018 IS FILED UNDER SECTION 21(4) OF NATIONAL INVESTIGATION ACT PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO. 93/2013 (S.C. NO. 869/2013) FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 121, 121(A), 123, 212, 435, 333, 307, 201, OF IPC AND SECTIONS 3, 4, 5, 6 OF EXPLOSIVES SUBSTANCES ACT, 1908 AND SECTION 4 OF PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT AND SECTIONS 3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 ON THE FILE OF XLIX (SPECIAL COURT FOR TRIAL OF NIA CASES) BENGALURU.
CRIMINAL APPEAL NO.1701/2018 IS FILED UNDER SECTION 21(4) OF NATIONAL INVESTIGATION ACT PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO. 92/2010 (S.C. NO. 871/2013) FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 121, 121(A), 123, 212, 435, 307, 201, OF IPC AND SECTIONS 3, 4, 5, 6 OF EXPLOSIVES SUBSTANCES ACT, 1908 AND SECTION 4 OF PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT AND SECTIONS 3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 ON THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) BENGALURU.
CRIMINAL APPEAL NO.1700/2018 IS FILED UNDER SECTION 21(4) OF NATIONAL INVESTIGATION ACT PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO. 94/2010 (S.C. NO. 870/2013) FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 121, 121(A), 123, 212, 201, 435 AND 307 OF IPC AND SECTION 3 AND 4 OF EXPLOSIVES SUBSTANCES ACT, 1908 AND SECTION 4 OF PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT AND SECTIONS 3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 ON THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) BENGALURU.
CRIMINAL APPEAL NO.1702/2018 IS FILED UNDER SECTION 21(4) OF NATIONAL INVESTIGATION ACT PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO. 95/2010 (S.C. NO. 872/2013) FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 120(B), 121, 121(A), 123, 212, 201, 435 AND 307 OF IPC AND SECTION 3 AND 4 OF EXPLOSIVES SUBSTANCES ACT, 1908 AND SECTION 4 OF PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT AND SECTIONS 3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 ON THE FILE OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR TRIAL OF NIA CASES) BENGALURU.
THESE CRIMINAL APPEALS ARE COMING ON FOR ADMISSION THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT These appeals are directed against the order dated 20.08.2018 passed by the XLIX Addl. City Civil and Sessions Judge (Special Court for Trial of NIA Cases) at Bengaluru in Crime No.93/2013 (SC No.869/2013), Crime No.92/2010 (SC No.871/2013), Crime No. 94/2010 (SC No.870/2013) and Crime No.95/2010 (SC No.872/2013) respectively, in rejecting the bail petition filed by Accused No.14 under Section 439 of Cr.P.C. in all the above said cases.
2. Sri. S. Balakrishnan, learned counsel for the appellant has raised various grounds seeking interference of this court with the impugned order passed by the trial Court. He has contended that, investigation has not been conducted by the National Investigating Agency ( for short, ‘NIA’) as contemplated under Section 6 of the National Investigating Agency Act, 2008 ( for short, ‘NIA Act’). He also contended that, the State Police Agency have investigated the matter and submitted the charge sheet before the Special Court constituted by the Central Government under Section 11 of the NIA Act. He further contended that, the State Police have no jurisdiction to file charge sheet before the special Court nor the special court has got jurisdiction to take cognizance of the alleged offences and proceed with the matter.
3. Secondly the learned counsel for the appellant contended that, the Special Court has not applied its judicious mind to the facts in order to ascertain whether there is any prima face material against Accused No.14 either to grant bail or to reject the bail application. The trial Court has simply done away with the application stating that the matter has already been set down for trail as per the directions of the High Court in Criminal Petition No.2352/2017 and the trial is going on and many witnesses have already been examined and the case has been progressing day-to-day basis. On that ground alone, it appears the trial Court has rejected the bail application, which is not correct. Hence, on the above said grounds, the learned counsel pleaded before this court to set aside the order passed by the trial Court and grant bail to Accused No.14, as sought for.
4. Per contra, the learned Additional Advocate General submits before the court that, the jurisdictional point with regard to whether the trial Court has got jurisdiction to try the offences under the NIA Act or not, has not been questioned before the trial Court at any point of time. Though the present accused himself has approached this court for grant of bail under Section 439 of Cr.P.C. and in fact this court has directed the trial Court to expedite the trail and dispose of the case as expeditiously as possible within the time limit. In the above context, jurisdiction point has not been raised, before the trial court at all. Therefore, for the first time that point cannot be raised before this court, because, the trial Court has no opportunity to deal with the matter.
5. Secondly, the learned Additional Advocate General submitted that, Accused No.14 has claimed bail on the ground of parity, as he was granted bail in the connected matter, wherein similar allegations are made against him. Therefore, the trial Court found that Accused No.14 is not entitled to be enlarged on bail in lieu of the direction issued by this court and therefore, that ground is also not available to the appellant.
6. We have carefully perused the above said grounds with reference to the order passed by the trial Court. As rightly contended by the learned Additional Advocate General, with regard to the jurisdiction of the trial Court either to entertain the bail petition or to proceed with the matter has not been brought to the notice of the trial Court at any point of time nor even the said factum has been challenged at the earlier stages by Accused No.14 before any court of law. On the other hand, this court has directed the trial Court to proceed with the matter. Further, the appellant has also filed application under Section 439 of Cr.P.C. before the trial Court presuming that the said court has got jurisdiction to dispose of the said application filed under Section 439 Cr.P.C.
7. In view of the above said factual aspects, we do not want to touch upon the said aspect raised by the learned counsel for the appellant with regard to the jurisdiction of the trial Court, as the same has not been considered by the trial Court itself.
8. Sofar as the second point raised by the learned counsel for the appellant is concerned, he is right in submitting that the trial Court has not even touched the factual matrix of the case to find-out whether Accused No.14 is entitled to be enlarged on bail on merits of the case, while considering the bail petition filed under Section 439 of Cr.P.C. for the first time. It is the bounden duty of the court to consider the facts and circumstances of the case to find-out, whether any prima facie case is made out against the accused, either to grant or refuse the bail.
In order to give finding whether there is any prima material is available, the court has to examine the allegations made against Accused No.14 in the charge sheet papers and find-out whether there is any material to reject the bail petition. If any subsequent bail petition if filed the court has to find out whether there are any changed circumstances available on records to consider the Bail petition. From the records it is seen that, the trial Court has not made such an exercise while disposing of the said application. The trial Court in fact has culled-out the grounds urged in the application that, Accused No.14 has sought for bail on the ground of parity as he was released on bail in connection with the case in SC No.868/2013 and in fact this court in Criminal Petition No. 2352/2017 has granted bail for Accused No.14 sofar as case in Crime No.96/2010 pertaining to SC No.868/2013 is concerned. The trial Court except mentioning the said order passed by the High Court, has not even looked into the factual matrix of the case to find- out whether the Accused No.14 is entitled for bail on the ground of parity or not. However, the court has swayed away by the direction of the High Court stating that, the matter has to be tried expeditiously as the High court has stipulated the time limit and the trial has begun, and therefore, on that ground alone, it appears the bail petition was rejected.
9. In our opinion, the said order passed by the trial Court is not proper and correct and whatever may be the stage of the proceeding, if any bail application is filed for the first time before the trial Court, it is the duty of the trial Court to look into the entire charge sheet papers to find-out whether there is any prima facie material available against the accused so as to reject the bail. If any subsequent bail applications are filed, then it becomes the duty of the trial Court to examine whether there are any changed circumstances for the purpose of granting or rejecting the bail petition, and that exercise has not been done by the trial Court.
10. In the above facts and circumstances, we are of the opinion that the order passed by the trial Court on the application filed by Accused No.14 under Section 439 of Cr.P.C. is not proper and correct. Therefore, the said order deserves to be set aside and the application filed by the petitioner (A.14) under Section 439 of Cr.P.C. has to be restored on to the file of the trial Court with a direction to the trial Court to apply its judicious mind to the facts and circumstances of the case and find-out what are all the facts available in the case of the accused and then the trial Court has to proceed with the application in accordance with law.
11. With the above observation, we proceed to pass the following:
ORDER The appeals are allowed. Consequently, the order dated 20.08.2018 passed by the trial Court viz., XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA Cases) at Bengaluru, on the application filed by the appellant/Accused No.14-Fassis Mehmood under Section 439 of Cr.P.C., is hereby set aside. However, the said application filed by the appellant (A.14) under Section 439 Cr.P.C. is restored on to the file of the trial Court with a direction to the trial Court to dispose of the said application in accordance with law, in the light of the observation made in the body of this judgment.
Sd/- JUDGE Sd/- JUDGE KGR*