AKATO Y. ZHIMOMI Vs. STATE OF NAGALAND

JUDGEMENT

(1.) These are four bail applications filed by the petitioners under Section 439 Cr.PC praying for granting of bail. The accused namely, Zheshito Swu, son of late Yelhozhe, Kiyevi village aged about 65 years (ii) Vikaho Kappo, son of Khutokho, Kiyevi village aged about 53 years, (iii) Ghosheto Swu, son of late Yelhozhe, Kiyevi village aged about 55 years and (iv) accused Lovito Sumi, son of Hokiqhe, Diphupar F-Khel, aged about 32 years were all arrested by the State Crime Branch from two different locations at 4th Mile Diphupar Dimapur on 30.03.2021 at around 5:00 A.M. The accused/petitioners were arrested in connection with 22.03.2021 incident where some unknown miscreants killed three persons at Lamhainamdi village. Case was registered at Kohima State Crime Branch as case No.2/21 under Section 302/120B/188/34 IPC read with 251A/27(3) Arms Act and a correspondent case before the Kohima Magistrate's Court was registered as G.R. No. 26/2021. A bail application was filed before the Court of Principal District and Sessions Judge, Kohima on 05.04.2021. During the hearing of bail application the issue of jurisdiction was raised and the learned PD&SJ on examination of the issue came to the conclusion that the PD&SJ Kohima had no jurisdiction to try the matter which is reproduced herein below:-

(2.) However, the learned PD&SJ remanded the accused persons Ghosheto Swu and Lovito Sumi for 14 days for the I.O. to complete investigation. On 16.04.2021, the learned CJM, Kohima remanded the co-accused Zheshito Swu and Vikaho Kappo to another 14 days judicial custody. Thereafter, another application was filed before the learned PD&SJ, Kohima on 19.04.2021 by UBI Vithalietuo Kire on behalf of Special Investigation Team praying for further 14 days judicial custody of accused Ghosheto Swu and Lovito Sumi. On examining the record, the learned PD&SJ observed that the learned CJM, Kohima without noticing the order dated 05.04.2021 had inadvertently remanded the other two coaccused namely, Zheshito Swu and Vikaho Kappo to another 14 days judicial custody by order dated 16.04.2021. He further observed that despite the order dated 05.04.2021, wherein it was explicitly ordered that the Court at Kohima does not have jurisdiction over the instant case and directed the SIT or the I.O. of the case to intimate the Court as to which appropriate forum has the jurisdiction in the instant case so that the Court may take steps to transmit the case record. Yet no step was taken by the SIT or the I.O. of the case. Therefore, he declared the order dated 16.04.2021 passed by the learned CJM, Kohima was null and void for lack of jurisdiction. Further he observed that SIT not taking step to determine which Court has the jurisdiction in the instant case would result in the accused persons being under illegal detention. The SIT was directed to take immediate steps for approaching the appropriate forum having jurisdiction over the instant case. Order dated 19.4.2021 is annexed for clarity:

(3.) The learned counsel appearing for the petitioners Mr. Joshua Sheqi submits that the accused are under illegal detention from the period that the learned PD&SJ, Kohima has declared that the Court of Kohima has no jurisdiction. The accused are under illegal detention and they must be released without any further delay. Learned counsel has argued that illegal detention must be explained satisfactorily by placing reliance upon the case of Joginder Kumar Vs. State of UP and Ors., (1994) 4 SCC 260 Writ Petition Criminal No. 9 of 1994, the Apex Court wherein has ruled that the detention of any citizen for even a few days has to be thoroughly explained and the requirement of effective enforcement of fundamental rights has to be complied with. In the instant case, there is gross violation of the procedure and cannot stand the test of the provision of the Constitution and the Criminal Procedure Code. Article 21 and 22 of the Constitution and also the provisions of the Criminal Procedure Code with respect to remand has been thrown to the winds.