Abdul Samad vs National Investigation Agency on 3 June, 2021

Citation	(2021)
Date of Judgment	3rd June,2021
Court	HIGH COURT OF DELHI
Case Type	CRL.M.(BAIL) 7673/2020 in CRL.M.C. 3813/2019
Appellant	ABDUL SAMAD
Respondent	NATIONAL INVESTIGATION AGENCY
Bench	HON’BLE MS. JUSTICE ANU MALHOTRA
Referred	Section-306(4)(b),482,164 of Cr.P.C.

FACTS OF THE CASE

Abdul Samad filed a Criminal Miscellaneous case seeking to set aside an order dated July 17, 2019, issued by the Special Judge of the Patiala House Courts in New Delhi. The petitioner also sought bail in this case.

According to the impugned order, a joint application was filed for the release or discharge of Abdul Samad and Mahfooz Alam. However, Abdul Samad’s counsel endorsed the application, withdrawing it. As a result, the application seeking release or discharge of Abdul Samad was dismissed as withdrawn.

Now, Abdul Samad has requested interim bail during the pendency of the petition in the NIA Case for a duration deemed appropriate by the court.

The NIA had also submitted that the statement of the applicant herein as a prosecution witness is yet to be recorded by the Trial Court and if released from custody he may retract from his statement under Section 164 Cr.P.C. 1973 as an approver.

Submissions on behalf of the Applicant:

The following submissions have been submitted by the Applicant:

1.It had been submitted that through this application by the petitioner/applicant, he sought his release on interim bail on account of the COVID-19 pandemic prevalent in the country which stood as a threat to his life and liberty.

2.It was further pointed out that although he had submitted his witness list as well as required documents with the FSL but the trial had not even started and is likely to take a substantial period of time to start due to the pandemic.

3.It was also submitted through the application, that on the present date he was a pardoned person as there was no case pending against him and that he was in custody only by reason of the bar under Section 306 (4)(b) of the Cr.P.C.

4.The applicant submits that use of the word ‘shall’ under Section 306(4)(b) of the Cr.P.C., 1973, in its ordinary import is ‘obligatory’ but there are many situations where the Courts have construed the word ‘shall’ to mean ‘may’ and therefore the relief sought by him can be granted by the court.

5.The applicant further contended that though his release on bail is expressly barred under Section 306(4)(b) of the Cr.P.C.,1973, the Court under Section 482 Cr.P.C. may pass any orders to meet the ends of justice.

6.The applicant also undertook to make himself available for any further investigation and to abide by the conditions put forth by the Court in the event of grant of bail and also stated his willingness to cooperate with the prosecution when necessary.

Submissions on behalf of the Respondent:

The respondent in its reply has submitted the following:

1.The learned Additional Sessions Judge of Patiala House Courts, observed to the effect that separate statements of both the accused i.e. Abdul Samad and Mehfooz Alam had been recorded to the effect that they have admitted their guilt with regard to the offences alleged in this case.

2.While citing the case of Aamir Abbas Dev V. State Through NIA, the NIA submitted that this Court had already held that the bar under Section 306(4)(b) of the Cr.P.C., 1973 is mandatory and absolute in nature.

3.The NIA has further submitted that the applicant was not granted pardon under Section 307 of the Cr.P.C. after commitment of the case.

4.The NIA had also submitted that the statement of the applicant herein as a prosecution witness is yet to be recorded by the Trial Court and if released from custody he may retract from his statement under Section 164 Cr.P.C. 1973 as an approver.

5.Lastly, the NIA had also argued on the ground that the delay in trial is itself not a ground for grant of any bail to the accused/approver which has essentially to prevail.

ISSUES

Whether the release on bail is expressly barred under Section 306(4)(b) of the Cr.P.C.,1973?
Whether the Court under Section 482 Cr.P.C. may pass any orders to meet the ends of justice?

ARGUMENTS

1) In the case of “Aamir Abbas Dev V. State” Through NIA, the NIA submitted that this Court had already held that the bar under Section 306(4)(b) of the Cr.P.C., 1973 is mandatory and absolute in nature.

2) High court reiterates S. 482 of the Cr.P.C. is warranted even for the prayer made by the applicant seeking for grant of interim bail.

JUDGEMENT

The Delhi High Court Bench held that the provisions of Section 306 (4)(b) of the Cr.P.C., 1973 cannot be taken as an absolute prohibition or fetter on the inherent power of the High Court under Section 482 of the Cr.P.C. in appropriate cases to release the approver from detention. It further held that the aspect as to whether such exercise or jurisdiction in terms of Section 482 of the Cr.P.C., 1973 is warranted even for the prayer made by the applicant seeking grant of interim bail during the prevailing pandemic which prevailed even at the time of institution of the application, would have to be considered on the basis of the facts and circumstances of each case.

The bench declined an application for interim bail. The court observed that considering the circumstances of the case and the nature of allegations against the applicant, it was not appropriate to grant interim bail under Section 482 of the Criminal Procedure Code (Cr.P.C.), 1973. The court referred to the guidelines of the Hon’ble High Powered Committee dated 18.5.2020, which were reiterated and modified thereafter. The application was rejected, and the matter was directed to be placed before the Hon’ble Chief Justice to be assigned to the appropriate bench for further proceedings.

REFERENCES

https://indiankanoon.org

https://www.latestlaws.com

This Article is written by Anshika Srivastava of Shri Ramswaroop Memorial University , Intern at Legal Vidhiya.