IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 Bail Appl..No. 1346 of 2010() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.5122/2009 CRIME NO.31/2008 OF THRIKKAKARA POLICE STATION, ERNAKULAM. .................... PETITIONER/ACCUSED NO.15: -------------------------------------------- M.E.ALI,AGED 53 YEARS,S/O.IBRAHIM, VADAKKEKUDI,MOOKKADA VEEDU,RAYONPURAM.P.O, SOUTH VALLOM KARA,PERUMBAVOOR VILLAGE. BY ADV. SRI.T.K.KUNHABDULLA RESPONDENT/STATE: --------------------------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM (CRIME NO.31 OF 2008 OF THRIKKAKARA POLICE STATION). SRI. M.S. BREEZ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.1346 of 2010 ---------------------------------- Dated this the 18th day of March, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.15 in Crime No.31 of 2008 of Thrikkakara Police Station, Ernakulam District. 2. The offences alleged against the accused persons in the case are under Sections 143, 147, 148, 307, 324, 307 and 120 B read with Section 149 of the Indian Penal Code and Sections 3 and 4 of the Explosive Substances Act. 3. The prosecution case is that the accused persons hatched a criminal conspiracy to assassinate Abdul Rahim alias K.M.R. Guru, who was running a Spiritual Palace at Pookkadasseri. It is alleged that a section of the Muslims believe that the ideologies of K.M.R. Guru and his activities are against Islam. On earlier occasions, unsuccessful attempts were made to assassinate K.M.R. Guru. It is alleged that the accused persons hatched the conspiracy at various mosques. One of the accused persons (Abdul Rahim), impersonating himself as Abdulla, succeeded in getting access to the Spiritual Palace run by the Guru and B.A. No.1346/ 2010 2 became Guru’s disciple. Guru was made to believe by Abdul Rahim that he would arrange persons for purchasing the scrap electrical goods worth Rs. One crore belonging to the former and that he had contacts with dealers of scrap at Bangalore and Hyderabad. In furtherance to the conspiracy, the accused persons invited Guru to a place near Infopark at Kakkanad. Deadly weapons like swords, axe and explosives were collected by the accused. Vehicles were also arranged. K.M.R. Guru was informed over mobile phone to reach at the place near Godrej Company, near Infopark. On 10/1/2008, K.M.R. Guru and his associates came to the place in a Scoda car. The 5th accused, riding on a motor bike, led Guru to the place. Guru and his associates were led to the compound of a building under construction. Accused No. 4 shook hands with Guru. At that time, 2nd accused attacked Guru with an axe. One of his disciples was also injured due to the attack with the axe. Guru and his disciples attempted to escape. The other accused persons came out of the vehicle and wrongfully restrained Guru, pushed him to the ground and inflicted deadly wound on his neck with the axe. B.A. No.1346/ 2010 3 Some other accused hurled bombs at Guru and his associates. Under the belief that Guru was dead, the assailants escaped from the scene. The petitioner was arrested on 17/1/2009. 4. The petitioner and some other accused persons filed B.A. Nos.539, 1142 and 1209 of 2009. Those Bail Applications were dismissed by the order dated 24/3/2009. The petitioner moved another application for bail as B.A. No.5122 of 2009, which was also dismissed by the order dated 8/10/2009. 5. The learned Director General of Prosecution very vehemently opposed the Bail Application. He submitted that accused No.1, Thadiyantavida Nazir is involved in several cases involving terrorist activities, some of which are now being investigated by the National Investigation Agency. It is also submitted by the learned Director General of Prosecution that accused Nos. 6, 7 and 8 in this case were killed in an encounter with security forces in Kashmir, when they tried to cross the border. It is submitted that if the petitioner is released on bail, it would be difficult to procure the arrest of accused Nos.4,5 and 9, who are absconding. B.A. No.1346/ 2010 4 6. To a query by the Court, the learned Director General of Prosecution submitted that though some of the alleged terrorists involved in several terrorist activities are also accused in the present case, no element of any terrorist activity against the State is involved in the present case. 7. The learned counsel for the petitioner submitted that the petitioner is in judicial custody since 17/1/2009. Charge sheet was filed in the case on 9/3/2009. Thereafter, the case was committed to the Sessions Court. The case is now pending as S.C.No.268/2009 on the file of the Additional Sessions Court, North Paravur. 8. The learned counsel for the petitioner also invited my attention to the submissions made by him at the time of hearing of B.A.No.5122/2009. The submissions made by the learned counsel were mentioned in paragraph (6) of the order in B.A. No.5122/2009, which reads as follows: “6. The petitioner submits that he was attracted by the activities of Rahim Pookkadasseri @ K.M.R.Guru and the petitioner was the Secretary of the Spiritual Movement for a long period. Later, it was realised that B.A. No.1346/ 2010 5 K.M.R.Guru used to misappropriate wealth and money of his disciples and molest ladies. The petitioner also submits that K.M.R.Guru has secret business connection with a terrorist who has activities in India with foreign aid. It is also alleged that K.M.R.Guru is having more than twenty residential buildings in the State of Kerala. K.M.R.Guru had also attempted to rape the wife of the petitioner. The petitioner disassociated with the activities of K.M.R.Guru and started propaganda against the illegal and nefarious activities of K.M.R.Guru. It is also alleged that K.M.R.Guru is involved in a number of criminal cases including murder cases, rape cases, etc. The petitioner relied on the newspaper reports to support his contention.” 9. The submissions made by the learned Director General of Prosecution, in answer to the above contentions raised by the learned counsel for the petitioner were also taken note of while disposing of B.A. No.5122/2009 and it was held as follows: “Dismissal of this Bail Application should not be a ground for not making any investigation into the alleged illegal activities of Rahim Pookkadasseri @ K.M.R.Guru. Simply because he was injured in an attempt to do away with him would not stand in the B.A. No.1346/ 2010 6 way of a proper investigation being made against the alleged criminal activities of Rahim Pookkadasseri @ K.M.R.Guru. I am sure that police will take appropriate and earnest steps in the matter of investigation of any such crime registered against Rahim Pookkadasseri @ K.M.R.Guru.” 10. The learned counsel for the petitioner submitted that the police have not taken any action in the matter and in spite of the serious allegations against Rahim Pookkadasseri @ K.M.R.Guru, those aspects have not been enquired into at all. While disposing of this Bail Application, it is not necessary to consider the activities of Rahim Pookkadasseri @ K.M.R.Guru. The question is whether the petitioner is entitled to be released on bail, in the facts and circumstances of the case. Going by the decision of Supreme Court, the mere fact that some of the accused persons are not arrested may not be a ground for denying bail to the accused, who were arrested and detained in judicial custody. The petitioner is in judicial custody since 17/1/2009. The trial has not begun yet. There is no allegation that the petitioner is involved in any of the terrorist cases, in B.A. No.1346/ 2010 7 which the first accused, Thadiyantavida Nazir is involved. The allegation is that Thadiyantavida Nazir is closely associated with Lashkar-e-Toiba. However, there is no specific case that the petitioner has any connection with Lashkar-e-Toiba. 11. Taking into account the facts and circumstances of the case, I do not think it is necessary to detain the petitioner further. I am of the view that the petitioner can be released on bail on stringent conditions. Accordingly, the petitioner shall be released on bail on his executing bond for Rs.50,000/- with two solvent sureties each for the like amount to the satisfaction of the court of the Additional Sessions Judge (Fast Track III) North Paravur, subject to the following conditions:- A) The petitioner shall appear before the Station House Officer, Thrikkakara Police Station between 9 A.M. and 11 A.M. on all Mondays and Thursdays, until further orders. B) The petitioner shall surrender his Passport, if any, before the court of the Additional Sessions Judge (Fast Track III) North Paravur within one week. If the petitioner does not hold an Indian Passport, an affidavit sworn to by him to that effect shall be filed before the court within one week. B.A. No.1346/ 2010 8 C) The petitioner shall not leave the limits of Ernakulam District until further orders, except with the prior permission of the trial court. D) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. E) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail. F) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE scm