Syed Azharuddin vs State

H.P. Sandesh, J

This petition is filed by accused No.7 invoking Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. praying this Court

to declare that the charge-sheet filed by the respondent in C.C.No.7174/2020 pending before the VIII ACMM, Bengaluru for the offences punishable

under Sections 120B, 341, 326, 307 read with Section 149 of IPC and consequently the provisions of the Unlawful Activities (Prevention) Act, 1967

('UAPA Act' for short) Section has no bearing as the same are merely mentioned to deny the relief to the accused without following any legal

procedure of law.

The factual matrix of the case is that the police have registered the case on 22.12.2019 against unknown persons and investigated the matter and

apprehended accused Nos.1 to 6 during the course of investigation. Thereafter, filed the charge- sheet against the accused persons for the offences

punishable under Sections 120B, 341, 326, 307 read with Section 149 of IPC. While filing the charge-sheet, this petitioner has been arraigned as

accused No.7.

The main allegation against the accused persons in column No.17 of the charge-sheet is that the accused persons belong to the prohibited

organization which is involved in criminal activities and they were opposing CAA and NRC. That on 22.12.2019 when the Hindu organization intended

to conduct the rally in favour of CAA and NRC, these accused persons conspired with each other at the instance of accused No.7 i.e., the petitioner

herein in the private office belonging to the petitioner under the leadership of the petitioner herein to take away the life of a person belonging to Hindu

religion. Accused Nos.1 to 4 have also conspired with each other at the instance of this petitioner. On 22.12.2019 accused Nos.2 to 6 conspired with

each other, changed their vehicle number and covered their faces with helmet in order to commit the murder. Accused Nos.5 and 6 watched the

movement of the complainant near the Town Hall and all the accused persons have joined together and chased the complainant and wrongfully

restrained him and assaulted with deadly weapon in order to take the life of the complainant. As a result, the complainant sustained injuries. The police

while filing the charge-sheet invoked Section 173(8) of Cr.P.C. to further investigate the matter and sought permission to file additional charge-sheet

stating that the petitioner and other accused persons have committed the offence under Sections 13, 16 and 18 of UAPA Act and investigation has to

be continued. Hence, the present petition is filed before this Court.

The main contention of the learned counsel for the petitioner before this Court is that this petitioner's name has been arraigned only while filing the

charge-sheet and there is no any material collected against him. The learned counsel would contend that this petitioner had sought for anticipatory bail

and the same was rejected by the Trial Court and this Court and only with an intention to defeat the right of the petitioner, UAPA Act has been

invoked. The learned counsel would contend that under Section 6 of the National Investigation Agency Act, 2008 ('NIA Act' for short), only on

receipt of the report from the State Government, the Central Government shall determine on the basis of information made available by the State

Government or received from other sources, whether the investigation has to be entrusted to the NIA. No procedure has been followed in order to

invoke the offences under UAPA Act. The learned counsel would contend that Section 43 of the UAPA Act is clear that the officers are competent

to investigate the offences under Chapters IV and VI when the Schedule offences are invoked. It is contended that only the officers are entitled to

investigate the matter and no such order of appointment of Special Officer has been made. The learned counsel would contend that Section 45(2) of

the UAPA Act is also not complied with. The police have also sought permission to investigate the matter invoking Sections 13, 16 and 18 of the

UAPA Act and the same cannot be done without any material. The learned Magistrate also failed to take note of the relevant provisions of both the

UAPA Act and NIA Act and committed an error in granting permission to conduct further investigation.

Per contra, the learned SPP appearing for the respondent State would contend that the charge-sheet has been filed for the above offences and

while filing the charge-sheet, permission was sought under Section 173(8) of Cr.P.C. to further investigate the matter and file the additional charge-

sheet. The order of the learned Magistrate is clear that having satisfied with the requisition given by the Investigating Officer, permission is granted to

further investigate the matter. The petitioner cannot find fault with invoking Section 173(8) of Cr.P.C. While seeking the permission, reasons are set

out for further investigation and only after being satisfied with the grounds urged by the Investigating Officer, the permission was granted and hence

the petitioner cannot find fault with the order of the learned Magistrate. The learned counsel would contend that cognizance was taken on 22.07.2020

having perused the material available on record.

The learned SPP would contend that Section 6 of the NIA Act only attracts for investigation to be conducted by NIA and the matter is not referred

to NIA and when such being the case, Section 6 of the NIA does not attract. The learned counsel would contend that this petitioner is the member of

PFI and SDPI and the same has been revealed during the course of recording of voluntary statement of the accused persons and it has come to light

that they conspired with each other and conspiracy was mooted by the petitioner herein. The learned counsel would contend that Section 15 of the

UAPA Act also attracts. It is contended that all of them conspired with each other and thereafter changed the vehicle number and moved around

where they intended to conduct the rally and there are sufficient materials to proceed against them and to file the additional charge-sheet. The learned

counsel would contend that strange relief has been sought by the petitioner. The judgments which have been relied upon by the learned counsel for the

petitioner are not applicable to the facts of the case on hand as the same are delivered while exercising the power under Section 439 of Cr.P.C. while

granting bail in favour of other accused persons.

In reply to the arguments of the learned SPP, the learned counsel for the petitioner would contend that while rejecting the anticipatory bail, no order

has been passed to surrender before the Trial Court.

Having heard the learned counsel for the petitioner and the learned SPP appearing for the respondent State, the relief sought in the petition is to

declare the charge-sheet filed by the police and consequently provision of UAPA Act has no bearing as same are merely mentioned to deny the relief

to the accused without following any legal procedure of law. Having perused the grounds urged in the petition and the contention of the learned

counsel for the petitioner, the prayer sought is not specific. In the case on hand, admittedly the FIR was registered at the first instance invoking the

offences punishable under Sections 143, 147, 148, 307 read with Section 149 of IPC and case has been registered against unknown persons. The

accused persons have been apprehended and the matter has been investigated and while filing the charge-sheet, deleted the offence under Sections

143, 147 and 148 and invoked Sections 120B, 341, 326, 307 read with Section 149 of IPC. It is important to note that while filing the charge-sheet, the

police have not filed the absolute charge-sheet and sought permission of the learned Magistrate to grant the permission to further investigate the

matter and to file the additional charge-sheet invoking Section 173(8) of Cr.P.C. On perusal of the requisition, no doubt it is mentioned that the

accused persons were in custody and they have to file the charge-sheet within the prescribed period and they have to collect the additional documents

and they have filed the intermediate charge-sheet. It is important to note that in the requisition, it is mentioned that this petitioner is absconding and

they have to apprehend him and they have to collect the evidence against him. It is also mentioned in the requisition that they also have to collect the

additional evidence against accused Nos.1 to 6 and FSL report is awaited. It is mentioned in the requisition that the accused persons belongs to

particular organization and they have conspired with each other before committing the offence and they have to invoke UAPA Act. Hence, the

permission is sought.

Having perused the order dated 30.03.2020, the learned Magistrate having taken note of the requisition and being satisfied with the grounds urged,

permission was granted. It has to be noted that the charge-sheet is not an absolute charge-sheet. When some of the accused persons are in custody,

the Investigating Officer has to file the report within the prescribed period. Mere invoking of UAPA Act for further investigation will not take away

the right of the petitioner. It has to be noted that the petitioner has approached the Trial Court as well as this Court seeking anticipatory bail by filing

application under Section 438 of Cr.P.C. and the same has been rejected. It is also important to note that the petitioner has been absconding and yet to

apprehend him and the Investigating Officer has to collect the evidence against him. The Investigating Officer sought for further investigation not only

in respect of the petitioner, but also in respect of other accused persons and only charge-sheet is filed based on the available material and sought

permission to file the additional charge- sheet. Hence, I do not find any error committed by the learned Magistrate in giving permission to further

investigate the matter. Under Section 173(8) of Cr.P.C., permission is granted to further investigate the matter and file the charge-sheet. It is clear

that while filing the charge-sheet, a prayer is sought by the Investigating Officer to further investigate the matter.

The other contention of the learned counsel for the petitioner that UAPA Act has been invoked and Section 6 of the NIA Act has not been

complied cannot be accepted at this stage. It is rightly pointed out by the learned SPP that the matter is not investigated by NIA and even the matter is

not referred to NIA for investigation. The Investigating Officer himself seeks permission of the Court to investigate the matter under Section 173(8) of

Cr.P.C. Hence, the very contention of the learned counsel for the petitioner cannot be accepted.

The main contention of the Investigating Officer is that the petitioner belongs to a particular organization and also relied upon the voluntary

statement of the other accused persons with regard to conspiring with each other prior to committing of the offence and also relied upon the material

with regard to changing of the vehicle and they were watching around the place where the rally is organized. Having taken note of the material

available on record and also taking note of the relief sought in the petition, I am of the opinion that it is not a fit case to allow the petition and declare

that the charge-sheet filed for the offences invoked against the petitioner and consequently provision of UAPA Section has no bearing cannot be

decided at this stage. The matter is still pending for further investigation as envisaged under Section 173(8) of Cr.P.C. Hence, the petitioner is not

entitled for any relief as sought in the petition.

The learned counsel for the petitioner relied upon the orders passed by this Court in Crl.P.No.2275/2020 and Crl.P.No.1161/2020 c/w

Crl.P.No.1384/2020 wherein an observation is made with regard to no material is collected to invoke UAPA Act. The said observation is made while

exercising the powers under Section 439 of Cr.P.C. and now the matter is under further investigation as sought by the Investigating Officer and hence

the said contention also cannot be accepted.

In view of the discussions made above, I pass the following:

ORDER The petition is dismissed.