IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 Crl.MC.No. 3961 of 2010() ------------------------------------- CRIME NO.704/2010 OF MUVATTUPUZHA POLICE STATION. .................. PETITIONER/ACCUSED NO.16 ------------------------------------------ SIKKANDHAR ALI KHAN, S/O.PAREETH, KIZHEKKEKKARA KARA, MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.SUNNY MATHEW, SRI.P.C.NOUSHAD, SRI.M.P.ABDUL LATHEEF. RESPONDENT(S): -------------------------- 1. THE SUB INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION. 2. THE CIRCLE INSPECTOR OF POLICE, MUVATTUPUZHA. 3. THE DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA. 4. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. (RESPONDENTS 1 TO 4 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). R1 TO R4 BY SRI.P.N. SUKUMARAN, ADDL. D.G.P. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/11/2010, ALONG WITH CRMC NO. 4285 OF 2010, THE COURT ON 10/12/2010 PASSED THE FOLLOWING: rs M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3961 & 4285 OF 2010 =========================== Dated this the 10th day of December,2010 ORDER Petitioner in Crl.M.C.3961/2010 is accused No.16 and the petitioner in Crl.M.C.4285/2010 is accused No.11 in Crime 704 of 2010 of Muvattupuzha Police Station registered under Annexure 1 F.I.R for the offences under sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(ii) and 307 read with section 149 of Indian Penal Code and Section 3 of Explosive Substances Act. Crl.M.C.3961/2010 is filed under section 482 of Code of Criminal Procedure to quash Annexure A2 report submitted by Circle Inspector of Police, Muvattupuzha who was then investigating the crime incorporating Section 15 read with section 16, 18, 18B, 19 and 20 of Unlawful Activities (Prevention) Act,1967. Crl.M.C.3961 & 4285 of 2010 2 Crl.M.C.4285/2010 is also filed under section 482 of Code of Criminal Procedure to quash Annexure B report (which is Annexure A2 in Crl.M.C.3961/2010) and Annexure C report submitted by the same investigating officer to extend the period of detention as provided under the proviso to Section 43D(2)(b) of the Unlawful Activities (Prevention) Act and the orders passed therein. 2. T.J. Joseph was a Professor of Newman College, Thodupuzha. He had set Malayalam question paper for internal examination of B.Com Degree. There was allegation that one of the questions was ridiculing or insulting Prophet Muhammad. There was protest from several corners. Sub Inspector of Police, Muvattupuzha registered Crime 327/2010 of that Police Station, under section 153A and 295A of Indian Penal Code on 26.3.2010, against the Professor. He surrendered before the investigating officer and produced before the Magistrate. He was remanded to judicial custody and later released on bail. There was protest from Crl.M.C.3961 & 4285 of 2010 3 various religious fundamentalist group against Professor Joseph. Prosecution case is that accused who are leaders and activists of Population Front of India and its political wing Social Democratic Party of India conspired to give a suitable set back to the said Professor. Pursuant to the conspiracy, meticulous plans were drawn to form separate groups to undertake specified assignments to perpetuate the evil plan. On 4.7.2010 at about 8 a.m while Professor Joseph along with his sister Sr.Stella and mother were returning in a Wagon R Car after attending Sunday mass at Nirmala Matha Church, one group comprising seven accused armed with deadly weapons like small axe, chopper and explosive substances came in a Maruti Omni Van displaying registration No.KL-07/AD 7201, a false registration number, though the registration number was KL-07/AH 8768. They intercepted the Wagon R Car, near to the house of Joseph, the place they were waiting. They smashed the window panes of the Wagon R Car. One among the accused Crl.M.C.3961 & 4285 of 2010 4 inflicted cuts on the right palm of the Professor with a small axe causing amputation of his right palm, evidently for the reason that with that hand Professor prepared the objectionable question paper. Several cut injuries were inflicted on various parts of the body of Professor Joseph. His sister was also manhandled and was wrongfully prevented from helping the Professor. The mother aged more than 80 years was also not spared. Though Salomi, wife of the Professor and Midhun, the son rushed to the scene of occurrence, they were threatened and intimidated by throwing bombs causing explosion and smoke. Though Midhun went to his father to help him, a cut injury was inflicted on his back. They lifted Midhun and threw him into nearby compound which lies at a lower level of more than four metres causing injuries to Midhun. Hearing the sound of explosion and the hue and cry though local people started rushing, all the assailants escaped from the scene in the Maruti Van, after throwing the severed palm of the Crl.M.C.3961 & 4285 of 2010 5 Professor to into a nearby compound. Getting information Police headed by the Sub Inspector of Police, rushed to the spot. By that time Professor was shifted to nearby Nirmala Hospital by his son. The Sub Inspector of Police recovered the amputated palm from the nearby compound and transferred it to the hospital. It is thereafter Crime 704/2010 was registered. It is based on the investigation, Annexure A2(Annexure B) report was submitted before the Magistrate incorporating the offences under the Unlawful Activities (Prevention) Act,1967. In view of the incorporation of the offences under the Unlawful Activities (Prevention) Act, as provided under section 43D(2)(b) Annexure C report was submitted as the proviso thereto enables the investigating officer to get the period of remand extended beyond the period of 90 days upto 180 days. Learned Magistrate recording satisfaction, extended the period of remand beyond the period of 90 days as sought for in Annexure C report. In both Criminal Miscellaneous Petitions, Crl.M.C.3961 & 4285 of 2010 6 the report submitted by the Circle Inspector of Police who was investigating the case, incorporating the offences under the Unlawful Activities (Prevention) Act is challenged. Though in Crl.M.C.4285/2010 in addition, accused No.11 had challenged Annexure C remand report and the orders passed therein, learned senior counsel submitted that as per order in BA 5134, 5795,5824,5940, 5950, 6017 and 6186 of 2010 as well as B.A, 4826, 4881, 5080 and 5192 of 2010 filed by the petitioners along with accused 12 and 13, this court has already found that Magistrate has no jurisdiction to pass an order under the first proviso inserted by section 43D(2)(b) of the Unlawful Activities (Prevention) Act and it is only the Sessions Court concerned, which has jurisdiction to pass an order and the Assistant Public Prosecutor in charge of the court of Judicial First Class Magistrate has no locus standi to submit a report for extension of the period of remand, under the proviso to Section 43D(2)(b) and Crl.M.C.3961 & 4285 of 2010 7 it is only the Public Prosecutor who is competent to file a report and that too only to the Sessions Court having jurisdiction and directed that the Public Prosecutor attached to the Sessions Court, Ernakulam shall file the necessary reports under section 43D(2)(b) of the Unlawful Activities (Prevention) Act and it is for the Sessions Court to consider the same and pass orders and in such circumstances, it is not necessary to consider the additional relief sought for in Crl.M.C.4285/2010. When an offence under the Unlawful Activities (Prevention) Act is involved, as provided under section 43 of the Act, only an officer not below the rank of Deputy Superintendent of Police, who is competent to investigate the offence and not the Circle Inspector of Police, who submitted Annexure A2 report who is incompetent to incorporate an offence under the Act. 3. I cannot agree with the submission. When the case was registered only for the offences under Indian Penal Code and Explosive Substances Act, the Crl.M.C.3961 & 4285 of 2010 8 Circle Inspector of Police who was the investigating officer is definitely competent to investigate the said offences. When the said investigating officer, on investigation, found out that the offences committed include not only offences under the Indian Penal Code but also under the Unlawful Activities (Prevention) Act, he is definitely competent to file a report before the concerned Magistrate intimating that such an offence is attracted and therefore the said offence is also incorporated and is being investigated. True, once an offence under the Act is incorporated, the case shall necessarily be investigated by a competent officer as provided under section 43 of the Unlawful Activities (Prevention) Act,1967. It is not disputed that the case is now being investigated after incorporation of the offence under the Unlawful Activities (Prevention) Act, and in the light of the findings of this court in the Bail Applications, the case is being investigated by a competent officer. Hence Crl.M.C.3961 & 4285 of 2010 9 the only question is whether the offences under the Unlawful Activities (Prevention) Act, 1967, is attracted or not. 4. Before considering the facts and the law, one aspect is to be borne in mind. Case was registered for the offences under the Indian Penal Code and the Explosive Substances Act. It is based on the materials collected during investigation, getting satisfied that the offences involved are serious and include offences under the Unlawful Activities (Prevention) Act, 1967 also, Annexure B report was submitted. Investigation is at the nasal stage. The challenge against the incorporation of the offence under the provisions of Unlawful Activities (Prevention) Act is to be appreciated in this background. 5. The argument of the learned senior counsel appearing for the petitioner in Crl.M.C.4285/2010 and the learned counsel appearing for the petitioner in Crl.M.C.3961/2010 is that, as is clear from Annexure A1 F.I.R the incident occurred Crl.M.C.3961 & 4285 of 2010 10 not on account of any personal animosity against Professor Joseph or because he belongs to another religion but only because he allegedly published a blasphemous matter insulting the Prophet. Therefore the act was not a simple criminal act against an individual but an attack for an act, which the accused believed was blasphemous. It is contended that even if the said prosecution case is accepted, the case could be successfully and properly handled by the State Police by following the procedure provided under the Code of Criminal Procedure and the ordinary law and does not require the incorporation of stringent provisions of Unlawful Activities (Prevention) Act. It is argued that though terrorism is not defined under the Unlawful Activities (Prevention) Act, the decisions of the Honourable Supreme Court on the previous repealed Act, TADA and POTA are relevant guidelines especially when “terrorist act” as provided under section 15 of the Unlawful Activities (Prevention) Act 1967 is identical to Crl.M.C.3961 & 4285 of 2010 11 the “terrorist act” provided under section 3 of TADA and to attract terrorist act under section 15, there should be an allegation that there was a requisite intention of threat to the unity, integrity, security and sovereignty of India or to strike terror in the people or any section of the people in India and even if the act alleged against the accused may have caused shock in the conscience of the people, such shock cannot be equated to terrorizing the people as at no part of the State life of the society was affected due to the incident. It is also argued that causing some disturbance of law and order or public order, can never be termed as terrorist activity and when the criminal activity could be handled by the Police and the crime could be investigated by the Kerala State Police Force, incorporation of the stringent provisions of Unlawful Activities (Prevention) Act is illegal. It is also contended that though incident of serious nature, where even while attending the court murder had taken place and Crl.M.C.3961 & 4285 of 2010 12 hands of the deceased were severed, in none of those cases provisions of Unlawful Activities (Prevention) Act is incorporated and the said provision is incorporated in the crime only because the accused belong to the minority community. It is contended that when the alleged acts do not attract Section 15 of the Unlawful Acitivities (Prevention) Act, incorporation of the offences under the said Act and its investigation under Annexure A2 report is to be quashed. Learned counsel relied on the decisions of the Apex Court in Prakashkumar v. State of Gujarat (2005(2) SCC 409), Hitendra Vishnu Thakur and others v. State of Maharashtra (1994(SC 2623), Ravindra Shantaram Sawant v. State of Maharashtra (2002(5) SCC 604), Bonkya v. State of Maharashtra ( 1995(6) SCC 447), and Madan Singh v. State of Bihar ( 2004(4) SCC 622), Girdhari Parmanand Vadhava v. State of Maharashtra(1996(1) SCC 179), Sagayam v. State of Karnataka (2000 Crl.L.J. 3182) and argued that in Crl.M.C.3961 & 4285 of 2010 13 the light of the decisions, Annexure A2 report can only be quashed. 6.Deputy Superintendent of Police, Muvattupuzha who is now investigating the crime, filed a counter affidavit disclosing the details of the investigation. The counter affidavit shows that on getting information of the incident all the police personnel in and adjacent district of the Ernakulam Rural were alerted by the higher authorities and consequently a white Omni Van bearing reg. No.KL- 07/AH 8768 was intercepted by the Sub Inspector of Police, Perumbavoor at Vattakkattupady on Muvattupupuzha Perumbavoor road by 9-25 a.m. First accused Jaffer was driving the vehicle. On verification getting suspicious on the statements of the driver, the Sub Inspector inspected the van and found that there were blood stains inside and outside of the Van and also broken glasses. The van was seized and the first accused was taken into custody. On questioning, part of the incident was unveiled. Based on the investigation, 24 Crl.M.C.3961 & 4285 of 2010 14 accused were arrested later. According to the Dy.Superintendent of Police, investigation revealed that after the question paper issue involving the Professor has arisen, PFI and SDPI activities conducted violent protest march to Newman College, Thodupuzha. Eventhough Professor Joseph was brought before the court to face the consequences, the leaders and activities of those parties were intolerant. They conspired to take revenge by attacking his house, either to kill him or to amputate his right palm with which the Professor prepared the question paper. On 28.3.2010 the working committee meeting of SDPI held in an auditorium, conspired together and prepared the plan to implement the action against the Professor. Fifth accused was given the leadership. Different specific duties were assigned to the leaders like selecting suitable manpower , collecting details of the professor and his family, watching movements of the Professor and family, movements of police, preparing route sketch, Crl.M.C.3961 & 4285 of 2010 15 collecting sufficient communication devices, suitable hideouts, collecting weapons and collecting money for the expenses etc. After the preliminary preparations, fifth accused constituted different teams assigning separate work for each group. Some were given the charge for removing the vehicle used in the commission of the offences, other group was entrusted the work to dispose the bloodstained dresses worn by the operation team, another group was assigned the work of disposing weapons and another group for collecting the operation team, another team to prepare the hideouts etc. It is alleged that even separate teams were prepared for meeting the legal requirements and also for contacting the police authorities. It is alleged that there were even separate group for surrendering before the police, instead of the actual offenders so as to mislead the police. It was also disclosed that during investigation raids were conducted at different places and the said searches and seizure unearthed Crl.M.C.3961 & 4285 of 2010 16 anti-national fundamentalist ideas of the groups and 19 cases were registered in Ernakulam Rural District alone and those accused are all either PFI or SDPI leaders or activists. It is also contended that the details of the terrorists activity was brought to the notice of this court while hearing Bail Applications 4826, 4881, 5080 and 5192 of 2010 and Bail Applications were dismissed. It is alleged that result of violence was not merely physical inflicted on the victims but mental and not only to the victims but also to the society with an intention to have psychological effects in the society as a whole. The object of the activity is to disturb the religious harmony and the tranquillity of the society by creating sense of fear and insecurity in the society at large and in such circumstances offences under Unlawful Activities (Prevention) Act was incorporated. It is contended that though the organizations are not declared terrorist organizations, the criminal acts done reveals that it is a terrorists act and in Crl.M.C.3961 & 4285 of 2010 17 such circumstances Annexure A2 report was filed. Learned Additional Director General of Prosecution relied on the decisions of the Honourable Supreme Court in Redaul Hussain Khan v. National Investigation Agency (2010) 1 SCC 521, Mohd.Iqbal M.Shaikh v. State of Maharashtra (1998) 4 SCC 494), State of Andhra Pradesh v. S.Eshar Singh (AIR 1993 SC 1374) and Directorate of Enforcement v. Deepak Mahajan and another (A.I.R.1994 SC 1775). 7. The Unlawful Activities (Prevention) Act 1967(hereinafter referred to as the Act) was enacted to provide for, more effective prevention of certain unlawful activities of individuals and associations and for connected matters connected therewith. By Amendment Act 29 of 2004, the object of the Act was widened, for dealing with terrorists activities. Terrorism is not defined under the Act. The terrorist act is defined under Clause (k) of Section 2 “as has the meaning assigned to it in Section 15 and the expressions “terrorism” and Crl.M.C.3961 & 4285 of 2010 18 “terrorist” shall be construed accordingly”. Terrorist gang is defined under clause (l) means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act. Terrorist organization is defined under clause (m) means an organization listed in the Schedule or an organization operating under the same name as an organization so listed. Unlawful activity is defined under clause (o) as “in relation to an individual or association means any action taken by such individual or association(whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise) (i) which is intended, or supports any claim, to bring about, on any ground whatsoever the cession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty Crl.M.C.3961 & 4285 of 2010 19 and territorial integrity of India or (iii) which causes or is intended to cause disaffection against India. Unlawful association is defined under clause (p) as means any association which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity or which has for its object any activity which is punishable under section 153A or section 153B of Indian Penal Code or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity. Chapter II deals with unlawful associations. Chapter III deals with Offences and penalties. Chapter IV Punishment for terrorist activities. Chapter V Forefeiture of proceeds of terrorism. Chapter VI deals with Terrorist organizations. Section 15 to 23 are included in Chapter IV, under the heading Punishment for terrorist activities. While section 15 deals with terrorist act, section 16 provides the Punishment for terrorist act. Section 17 deals Crl.M.C.3961 & 4285 of 2010 20 with Punishment for raising funds for terrorist act, Section 18 deals with punishment for conspiracy, Section 19 deals with punishment for harbouring, Section 20 deals with for being member of terrorist gang or organization. Section 21 provides punishment for holding proceeds of terrorism. Section 22 provides punishment for threatening witness and Section 23 enhanced penalties. As provided under clause (k) of sub section (1) of Section 2, terrorist act has the meaning assigned to it in Section 15 and the expressions “terrorism” and “terrorist” shall be construed accordingly. Section 15 reads:- “15. Terrorist Act- whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the Crl.M.C.3961 & 4285 of 2010 21 people in India or in any foreign country- (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause- (i) death of, or injuries to, any person or persons or (ii)loss of, or damage to, or destruction of, property, or (iii) disruption of any supplies or services essential to the life of the community in India Crl.M.C.3961 & 4285 of 2010 22 or in any foreign country; or (iv)damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other Crl.M.C.3961 & 4285 of 2010 23 act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Explanation:- For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the official Gazette by the Central Government as a public functionary.” Therefore the following ingredients are necessary to constitute a terrorist act. The act must be done(1) with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or (2) with intent to strike terror or likely to strike terror in the people Crl.M.C.3961 & 4285 of 2010 24 or any section of the people in India or in any foreign country- (a) by using bombs, or (b) dynamite or (c) other explosive substances or (d) inflammable substances or (e) firearms or(f) other lethal weapons or (g)poisonous or noxious gases or (h) other chemicals or (i)by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature. It must be to cause or likely to cause (i) death of, or injuries to any person or persons (ii) loss of , or damage to, or destruction of, property; or(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country or (iv) to cause damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of Government of India, any State Government or any of their agencies. It could also be a terrorist act if it overawes by means of criminal force or attempt to do so or causes Crl.M.C.3961 & 4285 of 2010 25 death of any public functionary or attempts to cause death of any public functionary or detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act. 8. Section 3 (1) of TADA reads:- 3. Punishment for terrorist acts.— (1) Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate