IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 Bail Appl..No. 66 of 2009(A) ---------------------------------- CRIME NO.356/2008 OF EDAKKAD POLICE STATION .................... PETITIONERS/ACCUSED NOS.16 & 17 : ----------------------------------------------- 1. SABIR.P.B, S/O. BUHARI, BUSINESS, RESIDING AT POTHURKADAN HOUSE PERUMBAVOOR POST, ERNAKULAM DISTRICT. 2. ANAS.P.K., S/O.KUNHIMUHAMMAD P.H PUTHAN PURAYIL HOUSE, 25 YEARS, BUSINESS NEDUMTHODE, P.O.MUDIKAL, PERUMBAVOOR ERNAKULAM DISTRICT. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL SRI.PRAVEEN K. JOY SRI.GILBERT GEORGE CORREYA RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA (S.H.O. CRIME NO, 356/08 EDAKKAD POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------- B.A. No.66 OF 2009 --------------------------- Dated this the 23rd day of January, 2009 O R D E R This petition is for bail. 2. The alleged offences are under Sections 3 read with 13(2), 18, 19, 38, 39 of Unlawful Activities (Prevention) and Sections 120(B), 121, 121(A) and 124(A) of I.P.C. Petitioners are accused nos.16 and 17, who have voluntarily harbored and concealed fifteenth accused knowing that such person is a terrorist. They have also conspired with other accused to commit certain offences under the Unlawful Activities (Prevention) Act, 1967 (for short “the Act”). 3. Fifteenth accused is a person, who has escaped from the encounter in Kashmir and on reaching Kerala, accused nos.16 and 17 harbored him at Permbavoor and made arrangements for him to stay in a mosque situated in an interior place. They also helped him to be hospitalised in another name 'Anoop'. They destroyed the identity card for the purpose of destroying evidence and also obtained a job for him. But when identity card was insisted, fifteenth accused left B.A.No.66 of 2009 2 the job. Phone call details of accused nos.16 and 17 show that they have made frequent calls to the prime offender in this case. They have thus, taken part in the unlawful terrorist activities. 4. Learned counsel for petitioners submitted that the details in the remand report will not disclose that they have committed offence under Section 19 of the Act. It is only stated therein that they have helped fifteenth accused to get treatment in a hospital and also made arrangements to stay in a mosque. But, strictly speaking, such type of help will not constitute offence under Section 19 of the Act, as per law, it is submitted. The term “harboring” connotes something more than this. It is also pointed out that first accused, who is the prime offender in the case was granted bail. He is the sole accused in the F.I.R. which was suo moto registered by the Sub Inspector. Having released first accused, there is no point in detaining petitioners, who have only lessor role in the offence, it is submitted. 5. Petitioners were arrested on 05.12.2008 and they are in custody for the past 48 days. Their detention is not required B.A.No.66 of 2009 3 since the charge sheet is already laid, it is contended. Petitioners are prepared to abide by any condition imposed by this court and they will co-operate with the trial. Hence, bail may be granted, it is submitted. 6. This petition is strongly opposed. Learned Public Prosecutor submitted that accused nos.16 and 17 have significant role in the offence. They have harbored a terrorist, who is the fifteenth accused, who escaped from an encounter in Kashmir. Four other persons who were in his company died in the encounter who are arrayed as accused in this case as accused nos.7 to 10. It is submitted that these persons have been frequently attending religious classes. They knowingly made all arrangements for the fifteenth accused and concealed him knowing that he is a terrorist. 7. There is ample evidence in the case diary, which is produced before this court, to reveal their active role in the offence and the acts committed by them would clearly constitute offence under Section 19 of the Act, it is submitted. Even the phone call details are taken and petitioners have no explanation for such calls being made to the prime offenders, B.A.No.66 of 2009 4 who are the terrorists. The identity card was caused to be destroyed by petitioners knowing the nature of the involvement of fifteenth accused in the crime. There are several witnesses, who have clearly stated about petitioners' role in the offence and if petitioners are released on bail, it is likely that they will influence or intimidate such witnesses and they will also abscond and it will adversely affect the trial. It is true that first accused was released on bail but, it was only bail by default, since the charge sheet could not be filed in time, within 90 days. The investigation in this case is spread over not only in Kerala but in other States also, and necessarily, it had taken some time and for the sole reason that first accused was granted bail, petitioners may not be granted bail. They are not entitled for bail by default, since the charge sheet is already been submitted. On hearing both sides and on going through the case diary, I am prima facie satisfied of the nature of involvement of the petitioners in the offence. The charge sheet is already laid and I also find that there are certain witnesses who have spoken against petitioners and if petitioners are released on B.A.No.66 of 2009 5 bail, it is likely that they will be influenced or intimidated, in which event, the trial will be adversely affected. It is also likely that petitioners may abscond. Considering the nature of the allegations made and taking into account the nature of activities, which they are allegedly engaged in, it is likely that in all probabilities, they will abscond if they are released on bail and they will not be available for trial. For all these reasons, I am not inclined to grant bail to petitioners at this stage. The petition is dismissed. K.HEMA, JUDGE pac