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SC criticizes HC ruling in Terrorism conspiracy case: Also clarified for charge under section 18 of UAPA, showing involvement in the actual commission of a terrorist act under Section 15 of UAPA is not necessary.

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CASE TITLE – Union of India v. Barakathulla Etc.

CASE NUMBER – CRIMINAL APPEAL NOS. 2715 – 2719 OF 2024

DATED ON – 22.05.2024

QUORUM – Justice Belam M. Trivedi & Justice Pankaj Mithal

 

FACTS OF THE CASE

The Central Government in Ministry of Home Affairs, CTCR Division having received credible information that the office bearers, members and cadres of Popular Front of India (PFI), an extremist Islamic organization have been spreading its extremist ideology across Tamil Nadu, by establishing State Headquarters at Purasaiwakkam, Chennai and also offices in various districts of Tamil Nadu and that through their frontal Organizations like Campus Front of India, National Women’s Front, Social Democratic Party of India etc., they conspire for committing terrorist acts, raise funds for committing terrorist activities and recruit members for furthering their extremist ideology, and that the frontal organizations and PFI were involved in the recruitment of members to various prescribed terrorist organizations, passed an order on 16th September 2022, in exercise of the powers conferred under sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 (hereinafter referred to as the ‘NIA Act’), directing the National Investigation Agency to take up investigation of the said case. In view of the said order, an FIR being RC-42/2022/NIA/DLI came to be registered on 19.09.2022 against the present respondents and other members and office bearers of PFI for the offences under Section 120(b), 153(A). 153(AA) of IPC and Section 13,17,18,18(B), 38 and 39 of the Unlawful Activities (Prevention) Act, 1957 (hereinafter referred to as the “UAPA”).

During the course of the investigation, the respondents/accused were arrested on 22.09.2022 for the alleged offences and had filed for bail applications before the Special Court (Sessions Court for Exclusive Trial of Bomb Blast Cases). The Special Court after considering the case diary, the documents and material produced before it, and after having been satisfied about the prima facie case made out against the respondents-accused as also considering the provisions of Section 43D of the UAPA in the light of the position of law settled by this Court in various decisions, dismissed the said bail applications filed by the respondents. Being aggrieved by the said orders, the respondents filed Criminal Appeals before the High Court of Judicature at Madras. During the pendency of the said Appeals, the chargesheet came to be filed by the appellant, NIA against all the respondents along with other accused on 17.03.2023 for the offences under Sections 120B, 121A, 122, 153A, 505(1)(b), (c), (2) of IPC and Sections 13,18, 18A, 18B of UAPA. The High Court after taking into consideration the submissions made and materials placed on record including the Chargesheet, allowed the said Appeals by the common impugned order dated 19.10.2023, releasing the respondents on bail subject to the conditions mentioned therein. Being aggrieved by the said order, appeals had been filed at the Hon’ble Supreme Court by the Union of India through NIA, Chennai Branch.

ISSUES

Whether the High Court was justified in granting bail despite serious charges against the accused under UAPA?

 

LEGAL PROVISION

Section 13 of the Unlawful Activities (Prevention) Act, 1967, prescribes the punishment for unlawful activities.

Section 18 of the Unlawful Activities (Prevention) Act, 1967, prescribes what can be considered as conspiracy to commit a terrorist act.

Section 43D of the Unlawful Activities (Prevention) Act, 1967, prescribes the special provisions as to make bail.

Section 8 of the National Investigation Agency Act, 2008, prescribes the power of the NIA to investigate connected offences.

 

CONTENTIONS BY THE APPELLANT

The Learned Counsel for the Appellant had vehemently submitted that the High Court had miserably failed to comprehend the correct import of Section 18 read with the definition of terrorist act contemplated under Section 15 of the UAPA for releasing the respondents on bail who have been charged with very serious offences. According to him, the High Court had fallen into patent and manifest error in not appreciating the overt acts and commission of alleged offences by the respondents, as stated by the listed witnesses/protected witnesses. He plced heavy reliance on the statements of the protected witnesses/listed witnesses had taken the court to the said statements to show the role and involvement of each of the respondents in the commission of the alleged offences under the IPC and UAPA. He further submitted that the High Court has committed grave error in trivializing the serious allegations made against the respondents by holding that except the witnesses having stated about respondents organizing weapon training for using knives and swords and to train members to throw beer bottles filled with water on targets, there is no material to suggest the commission of any offence which falls under Section 15 of UAPA, whereas all these alleged acts were part of the preparation of committing terrorist acts, particularly when the respondents were imparting training as to how to hurl bombs by using water-filled beer bottles and how to use weapons like knives and swords to strike terror in the mind of people.

 

CONTENTIONS BY THE RESPONDENT

The learned Senior Counsels appearing for the Respondents had emphatically submitted that the reliance of the appellant on the statements made by the protected/listed witnesses was highly improper as the said witnesses themselves had participated in the alleged commission of offences. According to them, the vague allegations made by the said witnesses, could not be relied upon, more particularly when there was no material brought on record to show any preparatory work done by the respondents to prima facie make out the case against the respondents. They also relied upon the observations made by the High Court in the impugned order to submit that the High Court had in detail considered the evidence collected by the appellant during the course of the investigation and having not found substance in the same has released the respondents on bail which order should not be interfered with. Relying upon various decisions of this Court, they submitted that the impugned order having been passed by the High Court exercising its discretion, could neither be said to be illegal nor unjust.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court mainly focused on first interpreting the exact meaning of the provision, specifically, Sections 15 which defines “Terrorist Acts” and 18, which defines the punishment for “Conspiracy”, etc to commit a terrorist act. They further referred to earlier precedents, the first one being National Investigation Agency vs. Zahoor Ahmad Shah Watali, where it was stated that “the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted.” The Hon’ble Supreme Court in the present case believed that the material collated and statements of witnesses recorded also show prima facie complicity of the respondents/accused in the commission of the alleged offences, which material/evidence is good and sufficient on its face to establish the facts constituting the alleged offences, and stated that the High Court has committed gross error in not considering the material/evidence in it’s proper perspective and in recording a perverse finding to the effect that there was no material to suggest the commission of any offence, which falls under Section 15 of UAPA, and that the prosecution had not produced any material about the involvement of any of the respondents-accused in any terrorist act or as a member of a terrorist gang or organization or training terrorism. They further stated that for attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown. The Hon’ble Supreme Court then held that the impugned order passed by the High Court is set aside and that the respondents should surrender themselves before the appellant, NIA, and stated that since the Chargesheet had already been submitted to the Special Court, they were directed to proceed with the trial as expeditiously as possible and in accordance with law, without being influenced by any of the observations made by this Court in this order.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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“Period of Detention Can’t be Sole Basis to Grant Bail, Gravity of Offence Must be Considered: MADRAS HIGH COURT”

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“Period of Detention Can’t be Sole Basis to Grant Bail, Gravity of Offence Must be Considered: Madras HIGH COURT”

Case Title: K. SelvaKumar vs. The Deputy Superintendent of Police, Tamil Nadu

Case no.: Civil Appeal No. 3391 of 2011

Dated on: 15th April 2024

Quorum: Hon’ble Mr. Justice M. Nirmal Kumar

FACTS OF THE CASE
On 27.12.2023 at about 15.30 hours the defacto complaint lodged to the respondent police stating that he and his uncle Sengottaiyan were hunting birds using slingshot, at that time, some stones hit the hen and cocks in A1 property. The hens and cocks got panic, started making noise and were flying here and there. On hearing the noise of the birds, A1 came out of his house, caught hold the defacto complainant and Sengottaiyan, called the villagers and friends who tied them in the coconut tree and the accused beaten them black and blue. Further Sengottaiyan died. In this case A4 is still absconding. Special court dismissed the bail application of the appellant and had now preferred the present appeal.
Criminal Appeal filed under section 14(A)(2) of SC/ST Act, the appellant who is arrayed as A7 in crime NO.783 of 2023 for the offence under section 147,148, 294(b), 342,324,506 (ii), 307, 302 IPC r/w. 3(1)(r), 3(2)(b) of SC/ST (POA) Act, 2015 filed this appeal/bail application. This court by order dated 10.01.2024 directed the appellant to surrender before the Trial court and on such surrender, directed the special judge to consider his bail applicant on the same day of his surrender.

CONTENTIONS OF THE APPELLANT

The learned ASG, his submission was that the appellant is innocent and not committed any offence. The appellant was implicated on the confession of co-accused. In this case bail was already granted by Special Court TO A1 IN Crl.M.P.NO. 376 of 2024 on 20.02.2024, A2, A4 to A6 granted bail by the Special Court in Crl.M.P.NO.378 of 2024 on 20.02.2024 and A8 granted bail by the Special Court in Crl.M.P.NO. 421 of 20240n22.02.2024.
He would submit that the Special Court granted bail to the accused finding that they were in confinement for 56 days and 54 days, 56 days respectively and also for the reason that investigation is almost completed. But the appellants bail application was dismissed for the reason that the appellant was in prison only for 30 days and the investigation as far as the petitioner, it is in premature stage. Now, the appellant is in confinement for more than 60 days and hence, prayed for bail.

CONTENTIONS OF THE RESPONDENTS

Submission by the Respondents, has argued that the on 14.03.2022 some unknow persons searched and reached them, attempted to tamper the witness to fizzle out the case of its rigor. For the threat and to dissuade the witnesses. Submitted that the wife of sengottaiyan was sanctioned the compensation amount of Rs.6 lakhs. The prosecution though represented that they were informed about notice and also made their objection while granting bail to the other accused is not proper.
Respondent further submitted that the accused in this case was very influential persons belonging to the dominant community with muscle and political power, and played fraud on the court in collision with the person who are entrusted with duty to safeguard the victims from oppression, all joined hands with the offenders and facilitated them to grant bail.

LEGAL PROVISIONS
Section 14(A)(2) OF SC/CT Act: An appeal shall lie to the high court against an order of the special court or the Exclusive Special court granting or refusing bail.
Section 147: whoever is guilty of rioting, shall be punished with imprisonment of either description for term which may extend to two years or with fine or both.
Section 148: whoever is guilty of rioting, being armed with deadly weapon of offence is likely to death shall be punished with imprisonment of either description for term which may extend to three years or with fine or both.
Section 294(b): whoever commits offence such as sings, recites or utters any obscene songs near any public place, shall be punished with imprisonment of either description for term which may extend to three months, or with fine or both.
Section 342: whoever wrongfully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine or both.

COURT’S ANALYSIS AND JUDGEMENT
Considering the submission made and on perusal of the materials the sum and substance is that defacto complaint was not informed, no summons issued and his objection were not heard in any of the bail applications as mandates under section 15A (3) of the SC/ST (POA) Act.
The rationale for the decision, the term refers to key factual point or chain of reasoning in case that drives the final judgement. Through analysis of the fact, the judge applies appropriate rule or principle of law and makes ruling on the verdict of case. It is generally binding on lower courts and later and later judgement, ratio decidendi is a norm law that the judge openly or implicitly treats as an essential step in reaching the decision.
It is informed by the legal aid counsel appearing for the third respondent that already cancellation bail petitions flied for suppressing the facts and fraud committed in obtaining bail. Further, granting of bail in cases under SC/ST Act cannot be on the ground of period of detention or the stage of investigation, it has to be considered on the gravity and nature of the offence. Hence present bail petition stands dismissed.
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Judgement Reviewed by – HARIRAGHAVA JP

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In the absence of prohibitory order under Section 144 of Cr.P.C. the assembly of few persons to protest would not amount to offences under Sections 143 and 120B of IPC: Madras High Court

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Case title: Simon & Ors Vs State represented by the Inspector of Police

Case no.: Crl.O.P. (MD)No.8122 of 2022 and Crl.O.P.(MD)No.8164 of 2022

Decision on: February 23rd, 2024

Quoram: Justice M. Dhandapani

Facts of the case

The Petitioners on 10.04.2022 gathered to conduct the first year homage/anniversary of the deceased Silambarasan, who died following a police chase and torture on 07.04.2021. They held continuous demonstrations with a small number of people near Anna Statue without obtaining any permission which obstructed law and order. Further, they demanded to take action against the delinquent police officers for their involvement in the illegal act leading to custodial murder of Silambarasan. The Respondent, Police Inspector registered a complaint against the petitioners for the said offences.

Legal Provisions

The Petitioners were charged under Sections 143, 341, 153, 153B (1)(c), 120B of IPC and Section 7(1)(a) of the Criminal Amendment Act, 1932 for the offences of unlawful assembly, wrongful restraint, deliberate provocation to riot and criminal conspiracy.

Contentions of the Petitioners

The Counsel submitted that the deceased Silambarasan, a history sheeted rowdy was allegedly murdered by the first respondent Police by pelting stones. Aggrieved by the inaction against the erred officials, the deceased mother filed a writ petition before this Court for exhumation of the body to conduct postmorterm. Further, the petitioners held protest against the inaction of the police which led to the present criminal cases against them. However, the Counsel contended that that all the petitioners were innocents and democratically assembled near the Anna statue to make continuous demonstrations against the police officials, which did not amont to offences under the said sections.

Contentions of the Respondents

The Counsel submitted that during the pendency of these petitions, the Police Inspector had completed the investigation, filed a charge sheet before the concerned Court and also assigned C.C. number.

Court’s Analysis and Judgement

The Court observed that at the time of protests there is no prohibitory order in place which prohibited the general public to assemble in a particular area. Therefore, it ruled that in the absence of prohibitory order under Section 144 of Cr.P.C., the assembly of few persons in front of the Anna statue to make demonstration against the respondent police will not amount to commission of the offences under the said sections. In view of the above, the Madras High Court quashed the FIR against the petitioners and allowed their petitions.

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Judgement Reviewed by – Keerthi K

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The Procedures under Sections 15 and 19 of Juvenile Justice Act mandatory to try the Accused as an Adult: Supreme Court

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Case title: Thirumoorthy Vs State represented by the Inspector of Police

Case no.: Criminal Appeal – Arising out of SLP(Crl.) No(s). 1936 of 2023)

Decision on: March 22nd, 2024

Quoram: Justice B R Gavai and Justice Sandeep Mehta

Facts of the case

The victim, daughter of the first informant went missing when he had taken her to a shop. He registered a complaint and the investigation was undertaken by the Inspector of Police. Two of the prosecution witnesses stated that they had seen the accused appellant going with the child victim. The police, based on this suspicion apprehended him from his house. It is alleged that the accused confessed of his guilt and his admission was recorded in memo and furthermore, the dead body of Ms. D was found concealed in a wide-mouthed aluminium vessel lying in the prayer room of the house of the accused. The Post-mortem report indicated that the death of the victim was homicidal in nature having being caused by asphyxiation due to compression of neck along with injuries to genitalia.

The Police Inspector noted that the accused was a juvenile at the time of commission of offence and hence a Child in Conflict of Law (CICL) as provided under Section 2(13) of the Juvenile Justice Act, 2015. The police instead of treating him under the JJ Act directly filed a charge sheet before the Sessions Court, which was later portrayed as Children’s Court by the prosecution. The trial Court convicted and sentenced the accused for the said offences. Further, the High Court of Madras affirmed the decision of trial court. Hence, this appeal was preferred by SLP.

Legal Provisions

The accused-appellant was convicted and sentenced under the following provisions – Section 363 IPC, Section 342 IPC, Section 6 POCSO Act, Section 302 IPC Sentenced to undergo 10 years rigorous imprisonment and Section 201 read with 302 IPC.

Section 15 of JJ Act – This provision deals with the preliminary assessment into heinous crimes.

Section 19 of JJ Act – This provision deals with the removal of disqualification attaching to conviction.

Issue – Whether the trial is vitiated on the account of non-adherence to the mandatory requirements of the JJ Act?

Submission on behalf of the Appellant

The Counsel based on the school documents of the accused strongly urged that the accused was a CICL on the date of the incident. It was contended that the entire series of events from the arrest to conviction of the accused had vitiated the mandatory procedure under JJ Act. She submitted that the police who filed the charge sheet was not authorized to conduct the investigation and as such the Special Juvenile Police Unit (SJPU) constituted under the JJ Act had to investigate into the matter involving the question of CICL. In the same line, it was also submitted that the Sessions Court which conducted the trial was not designated as a Children’s Court and thus, the trial of the accused appellant was vitiated.

She further submitted that in the cases involving CICL, the Children’s Court is required find out whether there is a genuine need for trial of the CICL as an adult as provided by Section 19(1)(i) of the JJ Act, which was flouted in the instant case. The Counsel also criticized the investigation process and implored the Court to accept the appeal and sought for the acquittal of the accused appellant.

Submission on behalf of the State

The Counsel vehemently opposed the submissions made by the appellant and submitted that looking to the gruesome nature of the crime, the entire investigation and trial cannot be held to be vitiated simply on account of irregularity in the procedure of conducting investigation and trial. It was contended that the Sessions Court which conducted the trial had been designated as a Children’s Court. He relied on various authorities to support his contentions. Therefore, submitted that the Trial Court and High Court were right in convicting and sentencing the accused for the said offences and hence, the impugned judgment does not warrant any interference by this Court.

Court’s Analysis and Judgement

The Court on perusal of the reports and judgement noted that the Investigating Officer, the prosecution and the trial Court were well aware of the fact that the accused was a CICL. It delved into the relevant provisions of JJ Act and noted the according to Section 9, if a Magistrate is not empowered to exercise the powers of the Juvenile Board and notices that the accused before him is a child, then it shall conduct tests to ascertain the age of the accused and forward the same to the Board. The Court delved into Sections 15 and 19 of the JJ Act and noted that as per the sections it is mandatory to conduct preliminary assessment and decide as to whether there is a need for trial of the child as an adult or not.

In the present case, the Court however noted that the Charge sheet was accepted without following any such mandates under the said sections leading to its gross violation. Further, it noted the violation of the mandate by the Sessions Court in conducting trial of the CICL and ruled the entire proceedings to be vitiated. In light of the above analysis, the Court quashed the impugned judgement and directed the authorities to release the appellant.

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Judgement Reviewed by – Keerthi K

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Legal clarity amidst complexity: Madras High Court deciphers precedents in maintenance disputes.

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Case title: S.Menaka v. K.S.K.Nepolian Socraties

Case no.: C.M.P.No.18729 of 2023 in C.M.A.No.1914 of 2021

Decided on: 21.03.2024

Quorum: Hon’ble Justice M. SUNDAR, Hon’ble Justice K.Govindarajan Thilakavadi

FACTS OF THE CASE:

The case involved the issue of appeal maintainability under Section 19 of the Family Courts Act against a pendente lite maintenance order under Section 24 of the Hindu Marriage Act. Both the husband and wife filed appeals challenging the interim maintenance order. Legal precedents like Arunoday Singh Vs. Lee Anne Elton and Utility Users’ Welfare Association case were referenced during the proceedings. Various counsels presented enlightening submissions on the interpretation and application of relevant laws and precedents.

LEGAL PROVISIONS:

Section 19 of the Family Courts Act: Pertaining to the constitution of Family Courts to deal with disputes relating to marriage and family affairs.

Section 24 of the Hindu Marriage Act: Regarding pendente lite maintenance orders.

Section 28 of the Hindu Marriage Act: Dealing with appeals from decrees and orders under the Act.

Relevant legal precedents: Including Arunoday Singh Vs. Lee Anne Elton and Utility Users’ Welfare Association case, which were referenced for legal reasoning during the proceedings.

APPELLANTS CONTENTION:

The appellants, representing the husband in the case, vehemently argued for the maintainability of the appeal under Section 19 of the Family Courts Act against the pendente lite maintenance order issued under Section 24 of the Hindu Marriage Act. They raised significant concerns regarding the legality and validity of the maintenance order, questioning its basis and the grounds on which it was granted. The appellants highlighted inconsistencies and discrepancies in the application of the relevant legal provisions, emphasizing the need for a thorough review and reconsideration of the interim maintenance order. Furthermore, the appellants pointed out the contradictory positions taken by the parties involved in the proceedings, underscoring the need for clarity and consistency in the interpretation and application of the law. They argued for a comprehensive examination of the facts and legal principles at hand to ensure a fair and just resolution of the dispute. The appellants sought to establish a strong legal foundation for their appeal, emphasizing the importance of upholding the principles of justice and equity in the adjudication of the case.

RESPONDENTS CONTENTION:

The wife in the case, supported the maintainability of the appeal under Section 19 of the Family Courts Act. They emphasized the importance of adhering to the legal procedures and requirements set forth in the relevant statutes, including the Hindu Marriage Act. The respondents highlighted the need for continued compliance with the conditions of the interim maintenance order, stressing the ongoing nature of the obligations outlined in the order. While acknowledging the need for further discussions on the maintainability issue before delving into the substantive arguments of the case, the respondents expressed confidence in the validity of their position. They underscored the significance of upholding the rights and entitlements of the parties involved, particularly in matters concerning maintenance and support. The respondents sought to ensure a fair and just resolution of the dispute, advocating for a thorough and meticulous examination of the legal provisions and factual circumstances at hand to arrive at a reasoned and equitable decision.

COURT’S  ANALYSIS AND JUDGMENT:

In the case at hand, the court engaged in a comprehensive analysis of the legal provisions, precedents, and arguments put forth by the parties involved. The central focus of the court’s deliberation was the question of the appeal’s maintainability under Section 19 of the Family Courts Act against the pendente lite maintenance order issued pursuant to Section 24 of the Hindu Marriage Act. This critical examination required a meticulous review of the relevant statutes to ascertain the scope and applicability of the appeal in the context of the maintenance order. Drawing upon established legal precedents such as Arunoday Singh Vs. Lee Anne Elton and Utility Users’ Welfare Association case, the court sought guidance from past decisions addressing similar issues. By referencing these precedents, the court aimed to ensure consistency and coherence in its legal reasoning, thereby reinforcing the principles of judicial interpretation and application of the law. Throughout the proceedings, the court carefully considered the contentions presented by both the appellants and respondents. Key points of contention included the legality and validity of the maintenance order, adherence to legal procedures, and the respective rights of the parties involved. These arguments formed the basis for a robust legal debate, highlighting the complexities inherent in matters of maintenance and support within the framework of matrimonial disputes. Upon thorough analysis and deliberation, the court rendered a judgment on the crucial issue of the appeal’s maintainability. This decision was informed by a nuanced understanding of the legal provisions, precedents, and factual circumstances surrounding the case. By providing a reasoned judgment, the court aimed to uphold the principles of justice and equity, ensuring a fair and just resolution of the dispute at hand. In essence, the court’s meticulous analysis and judgment underscored the importance of a rigorous legal examination in resolving complex legal disputes. By navigating through intricate legal arguments and precedents, the court demonstrated its commitment to upholding the rule of law and delivering justice in a manner that is both principled and equitable.

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Judgement reviewed by – Ayush Shrivastava

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