IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HON'BLE MR.JUSTICE P.Q. BARKATH ALI THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 CRL.A.No. 1876 of 2011() ------------------------ AGAINST THE ORDER DATED 15/10/2011 IN CRMP 1212/2011 IN SC.41/2011 ON THE FILE OF THE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA, ERNAKULAM .................... APPELLANT(S): PETITIONERS/ACCUSED NOS.12,14,18: ----------------------------------------------- 1. K.K.ALI, S/O.KUNHUMUHAMMED, AGED 31 YEARS, KUZHITHOTTIL HOUSE, CHEIRUVATTOOR KARAYIL DESOM, KIRAMALLOR VILLAGE. 2. SIYAD, S/O.SAINUDHEEN, AGED 29 YEARS, CHASTHIPARAMBIL HOUSE, KIZHAKKAPURMA DESOM, IRAMALLOOR KOTTUVALLI VILLAGE. 3. FAHAD, S/O.ISMAIL, AGED 27 YEARS, PALAKKAL HOUSE, VELIYATHUNADU DESOM, KURUMALOOR VILLAGE. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): COMPLAINANT: --------------------------- 1. THE SUB INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE NATIONAL INVESTIGATION AGENCY REPRESENTED BY ITS STANING COUNCIL HIGH COURT OF KERALA, ERNAKULAM. SRI.M.AJAY, SPL. P.P FOR NIA FOR R-2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON 24/11/2011 DELIVERED THE FOLLOWING: V. RAMKUMAR, & P.Q. BARKATH ALI, JJ. ........................................................ Crl. Appeal No. 1876 of 2011 ......................................................... Dated: 24-11-2011 JUDGMENT In his appeal filed under Sec. 21 (4) of the National Investigation Agency Act, 2008 , (“the N.I.A. Act” for short), the appellants who are accused Nos. 12, 14 & 18 in Crime No. 704 of 2010 of Moovattupuzha Police Station for offences punishable under Sections 143, 147, 148, 120 B, 323, 324, 326, 341, 427, 506 (ii), 307, 153 A, 201, 202 and 212 read with Sec. 149 I.P.C. and Sec. 3 of the Explosive Substances Act, 1904 and Sec. 15 read with 16, 18, 18 B, 19 & 20 of the Unlawful Activities (prevention) Act, 1967, seek their enlargement on bail. The occurrence took place on 4-7- 2010. The appellants were arrested on 30-08-2010, 23-07-2010 and 25-07-2010 respectively, and were got remanded to judicial custody where they continue. Eventhough the State police had submitted the charge-sheet before the trial court (N.I.A. Special CRA No. 1876 of 2011 -:2:- Court, Kochi), the investigation of the case was re-opened consequent on the Central Government entrusting the investigation with the National Investigation Agency. 2. We heard Adv. Sri. Sunny Mathew, the learned counsel appearing for the appellant and Adv. Sri. M. Ajay, the learned Special Public Prosecutor for the N.I.A. 3. The case of the prosecution is as follows:- On account of the enmity towards Professor T.J. Joseph of Newman College, Thodupuzha for incorporating a question ridiculing Prophet Mohammed and Islam in a question paper set by him for the internal examination in Malayalam for the B.Com Degree Course, accused Nos. 1 to 7 in furtherance of the criminal conspiracy hatched by them and the leaders and activists of the Popular Front of India (P.F.I.) and its political wing called Social Democratic Party of India (SDPI), on 4-7-2010 at about 8 a.m. formed themselves into an unlawful assembly armed with deadly weapons like hatchet, choppers etc. and assaulted the said Professor from the vicinity of his house at Moovattupuzha while CRA No. 1876 of 2011 -:3:- he was returning from the Nirmala Matha Church after the attending the Holy Mass. The assailants who came in a Maruti Omni Van and who were waiting for the Professor to come , smashed the window panes of the Wagon R car belonging to the Professor and attacked the Professor whose right palm was chopped off with a hatchet. The mother and sister of the professor were also injured in the occurrence. Eventhough hearing the commotion the Professor's wife and son who were in the house rushed to the scene, they were not able to deter the assailants but the son managed to inflict some injury on the back of one of the assailants with a long knife which the son was carrying. The assailants thereafter made good their escape in the Maruti Omni van in which they had come. 4. Adv. Sri. M. Ajay, appearing for the N.I.A. made the following submission before us opposing the appeal:- A12 (Ali,K.K.) is the person who purchased the Maruti Omini van (used by the assailants) on the directions of A8 (yoonus) on 15-6-2010 with the money provided by A8. He had attended the meeting held at the CRA No. 1876 of 2011 -:4:- Inspection Bunglow of the Water Authority at Moovattupuzha on 3-4-2010 when the conspirators decided to destroy and set fire to the house of Professor Joseph. A12 had brought 5 litres of petrol for executing the said plan as per the direction of A8. After the assailants had committed the offence of chopping off the palm of Professor Joseph A12 absconded with Noufal (A45). A14 (Siyad) procured SIM Card No. 9946617241 of Vodafone from one Vahishad and gave it to A28 (M.K. Nazar). He had provided shelter at Sihab's house at Mannam near North Paravur to A28 Manaf, (A38), Kassim (A29) and Moideen Kunju (A41) for discussing the future plans . He had arranged a Maruti Alto Car for the escape of A8 and A29. A18 (Fahad) was a member of the team constituted by A28 to watch the movements of Professor Joseph and his family and also the police. He had participated in four of the aborted attempts. After Professor Joseph was enlarged on bail, A28 deputed A18 and A31 (Noushad) to find out the route to the house of Professor Joseph. In the meeting arranged by A28 (Nazar) at the Revenue Tower, Kothamangalam, two days thereafter A8 (Yoonus) gave a copy of the sketch prepared by Sikhender ( A11) for locating the house of the Professor . A31 and A18 came to CRA No. 1876 of 2011 -:5:- Moovattupuzha on a Hero Honda Motor Cycle at Velloorkunnam Mosque and met A8 and improved upon the sketch prepared by A11. Subsequently, on different dates A18 had showed the house of the Professor to A32 to A34 who are the other team members . It was using the motor cycle of A18 that A18 and A31 watched the house of the Professor and its surroundings and informed A28 and the assailants about the situation from time to time. The appellants who had actively participated in the criminal conspiracy from the very beginning should not be granted bail. As there are reasonable grounds for believing that the accusation against the appellants is prima facie true the bar under the proviso to Section 43 (D) (5) of the Unlawful Activities (Prevention) Act, 1967 is squarely attracted. 5. We are afraid that we find ourselves unable to accept the contentions made on behalf of the N.I.A. at this distance of time. What is, prima facie, discernible is either the initial participation of the appellants when a decision was taken on 3-4- 2010 to set fire to the house of Professor Joseph. Admittedly, the said ploy was aborted. Merely because, going by the call details, there were calls from or to the mobile phones of some of the CRA No. 1876 of 2011 -:6:- appellants (none of whom is among the seven actual assailants of Professor Joseph) it cannot be straightaway concluded that the appellants were privy to the conspiracy or to the “operation palm chopping” of the Professor. 6. It was in this very same case after the incorporation of the offences under the Unlawful Activities (Prevention) Act, that the Apex Court affirmed the grant of bail by this Court to the 9th accused (Raneef) notwithstanding the proviso to Sec. 43 D (5) of the said Act after observing that he was not one of the assailants of Professor Joseph . (Vide State of Kerala v. Raneef - 2011 (1) KLT 242 SC ). In the course of the said order the Apex Court in that case observed as follows:- “In deciding bail applications, an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody ? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case ? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail”. CRA No. 1876 of 2011 -:7:- Raneef (A9) who had spent 66 days in custody had been directed to be released on bail by this Court and it was while affirming that the Apex Court made the above observation. 7. All the appellants have been languishing in jail now for more than one year and there is no reasonable prospect of the N.I.A. Special Court taking up the case for trial in the near future. It will be poor solace to them to be told that if ultimately they are found not guilty they will be acquitted and that they will have to curse themselves for the pre-trial incarceration. Having regard to the degree of the alleged complicity of the appellants we are inclined to grant them bail, however, on stringent conditions safeguarding the interest of the prosecution as well. 8. Accordingly, the appellants are directed to be released on bail on each of them executing a bond for Rs. 50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount to the satisfaction of the Special Court, N.I.A., Ernakulam, and subject to the following conditions:- CRA No. 1876 of 2011 -:8:- i) The appellants shall report before the Investigating Officer, N.I.A. between 9 a.m. and 11 a.m. on all Wednesdays till the filing of the supplementary final report. Thereafter they shall report before the Chief Ministerial Officer of the Special Court, N.I.A., Ernakulam, between 10 a.m. and 12 noon on all Wednesdays till the commencement of the trial. If the Wednesday happens to be a holiday, they shall report on the next working day. ii) The appellants shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. iii) The appellants shall not associate themselves with the P.F.I., S.D.P.I. or the N.D.F. until further orders since the role of those organizations in the terrorist activity which was staged in this case is yet to be fully investigated . iv) The appellants shall not leave the territorial limits of Ernakulam District except with the prior written permission of the Special Court, N.I.A., Ernakulam. CRA No. 1876 of 2011 -:9:- v) Before executing the bail bond, the appellants shall surrender their passport , if any, before the Special Court, N.I.A., Ernakulam. In case any of the appellants is not the holder of a passport, he shall file an affidavit to that effect before the said court while executing the bail bond. vi) The appellants shall not commit any offence while on bail nor shall they involve themselves in any prejudicial activity while on bail . In case any of the appellants commits breach of any of the above conditions, the bail granted to him shall be liable to be cancelled. This appeal is accordingly allowed as above. Dated this the 24th day of November, 2011. Sd/-V. RAMKUMAR, JUDGE Sd/-P.Q. BARKATH ALI,JUDGE. ani/ /true copy/ P.S. to Judge CRA No. 1876 of 2011 -:10:- CRA No. 1876 of 2011 -:11:-