THADIYANTEVIDA NAZEER Vs. STATE OF KERALA

JUDGEMENT

(1.) In this Crl. Miscellaneous Case filed under Sec. 482Cr.P.C. the petitioners who are accused Nos. 1, 3, 4 & 9 in Sessions Case No. 2 of 2010 (NIA) on the file of the Special Court for the Trial of N.I.A. Cases, Kerala at Ernakulam (hereinafter referred to as "the Special Court" for short), challenge Annexure- C order dated 8-7-2011 passed by the Special Court. As per the said order, the Special Court dismissed their application filed as Crl.M.P. 135 of 2011 (Annexure- IV) seeking to cancel Annexure- III order dated 2-09-2010 of the Special Court tendering pardon to the approver, Shammi Firoz who was originally A7 and who was subsequently examined in the case as P.W. 1. A chronological narration of the facts leading to the impugned order is as follows:- <p>03/03/2006 Infuriated by the attitude of the officials including the Executive and the Judiciary in not granting bail to the Muslim accused persons involved in the Marad carnage case the nine accused persons hatched a criminal conspiracy to make, plant and explode bombs in the K.S.R.T.C. Bus stand and the Moffusil Bus stand in Kozhikode city and they thereby committed offences punishable under Sections 120, 124-A, 153Aand 324 read with Sec. 34 I.P.C. and Sections 16(1)(b), 18and 23of the Unlawful Activities (Prevention) Act, 1967 and Sec. 3of the Explosive Substances Act, 1908. Two cases were registered as Crime Nos. 80 of 2006 and 81 of 2006 of Kasaba and Nadakkavu Police Stations, Kozhikode. 13-06-2006 The investigation of the two cases was transferred from the local police to the CBCID SIG-III, Kozhikode 01-12-2009 The Government of India entrusted the & investigation of the case with the National Investigation Agency ("N.I.A". for short). 04-12-2009 The aforesaid two crimes were reregistered as Crime Nos. 5 of 2009 and 6 of 2009 of N.I.A., New Delhi 19-03-2010 A7ShammiFiroz was arrested by the N.I.A. 20-03-2010 ShammiFiroz was produced before the Special Court for the trial in N.I.A. Crime No. 5 of 2009. On that day he made Annexure A written request (registered as Crl.M.P. 437/10) expressing his willingness to turn an approver and make a full and true disclosure of the entire circumstances of the case within his knowledge. 25-03-2010 The Superintendent of Police, N.I.A. filed Annexure- I petition (registered as Crl.M.P. 436/10) to record the statement of ShammiFiroz under Sec. 164Cr.P.C. since he had expressed his willingness to disclose the entire circumstances of the case involving himself and others. (This petition was filed since the police alone could sponsor an accused to be an approver). 30-03-2010 The Special Court allowed Crl.M.P. 436/10. 31-03-2010 n On the direction of the Special Court, the Judicial Magistrate of First Class, I, Ernakulam recorded the statement of ShammiFiroz under Sec. 164Cr.P.C. and ShammiFiroz accepted the tender of pardon by expressing his willingness to make a full and true disclosure of the entire circumstance of the case within his knowledge. 14-06-2010 The Superintendent' of Police, N.I.A. who is the Chief Investigating Officer filed Annexure-II Petition (Registered as 735/10) to treat A7 (ShammiFiroz) as an approver and tender him pardon. 02/08/2010 The NIA filed charge-sheet against 8 accused persons after deleting A 5. A6 was killed in an encounter at Jammu & Kashmir. A2 and A8 are absconding. A3 was granted bail. Others are in judicial custody. 02/09/2010 ShammiFiroz also filed Annexure- B petition (registered as Crl.M.P. 1056/10) to tender him pardon since he had already expressed his willingness to disclose the entire facts and circumstances in his statement recorded Sec. 164Cr.P.C. by the Magistrate. 02/09/2010 Special Court allowed Crl.M.P. 735/2010 as per Annexure III order in which the Court inter alia observed as follows:- "Direct evidence may not be plentiful In the very nature of the case approver's evidence, if available, will be a boon to the prosecution to establish the offences. Once approver's evidence is made available, there need only be search for corroboration which can even be from circumstances".

(2.) It is the above order dated 8-7-2011 passed by the Special Court which is assailed in this Crl.M.C.

(3.) We heard Sr. Advocate Sri. K. Rama Kumar, the learned counsel appearing for the petitioners and Sri. M. Ajay, the learned Special Public Prosecutor for the N.I.A.