(2011) 1 S.C.R. 590

STATE OF KERALA v.

RANEEF (Criminal Appeal No. 3 of2011)

JANUARY 3, 2011

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Bail - Grant of - Criminal assault on College Professor -".

- His right palm chopped of - Alleged motive for attacking c the Professor was that he incorporated a question for B. Com. paper criticizing Prophet Mohammed and Islam - Prosecution

case that respondent, a dental surgeon, stitched the back of an injured assailant in pursuance of a previous plan - Further a/legation that respondent was member of PF/, a Muslim D organization - High Court granted bail to respondent - Challenge to - Held: There was no a/legation that respondent was one of the assailants - Even there was no prima facie proof that respondent was involved in the crime - Hence, proviso to s. 430(5) of the Unlawful Activities (Prevention)· Act E was not violated - Even a dentist can apply stitches in an emergency - Prima facie the only offence that can be leveled against the respondent is under s.202 /PC, of omitting to give information of the crime to the police, and this offence also has to be proved beyond reasonable doubt - S.202 is a

F bailable offence - In absence of any evidence' to prove that

PF/ is a terrorist organization, the respondent cannot be penalized merely for belonging to the PF/ '."'" No reason for denial of bail to respondent - Penal Code, 1860 - s.202 - Unlawful Activities (Prevention) Act, 1967 - s.430(5), proviso.

G According to the prosecution, seven assailants came ""' in a Maruti Van and assaulted a College Professor and chopped off his right palm when he was returning home.

The alleged motive for attacking the Professor was that

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STATE OF KERALA v .. RANEEF 591

he incorporated a question for the internal examination A of B.Com. paper criticizing Prophet Mohammed and Islam.

Respondent is a dental surgeon. The prosecution case is that the respondent gave medical aid to one of B the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on the Professor then immediate medical treatment >"- would be given by the respondent to the injured; and that the .respondent stitched the back of an assailant, which c is not the job of a dentist. It was further alleged that the respondent was a member of the Popular Front of India (PFI), a Muslim organization, and was head of its medical committee. The prosecution placed reliance on the proviso to Section 430(5) of the Unlawful Activities (Prevention) Act, 1967 which states that the accused D .., shall not be released on bail if the Court, on perusal of the case diary or the report under Section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

The instant appeal is filed against the order of High .,., Court granting bail to the respondent.

' Dismissing the appeal, the Court F HELD:1. In the instant case, this Court is only considering the bail matter and not deciding whether the respondent is guilty or not. Evidence has yet to be led and the trial yet to commence. Hence the prosecution is

" yet to establish by proof beyond reasonable doubt that G ...... the respondent was part of a conspiracy which led to the attack on the Professor. [Para 12] [596-E]

. 2. The case against the respondent is very different from that against the alleged assailants. There is no H

A allegation that the respondent was one of the assailants.

There is no prima facie' proof that the respondnt was: involved in the crime. Hence the proviso to Section 43015) of the Unlawful Activities (Prevention) Act, 1967 has no( been violated. The respondent, being a doctor, was 'under.: 8 the Hippocratic oath to attempt to heal a patient. Just as

it is the duty-Of a lawyer to defend an accused, so also it-. is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency. Prima facie the only offence that can be leveled against the respondent is that _under c Section 202 l.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to. be proved beyond reasonable doubt. Section 202 is a bailable offence. [Para 12) (596-F-H;' 597-A-B]

3. As regards the allegation that the respondent D belongs to the PFI, there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the "" respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, this Court is yet to consider Whether E all members of the organization can be automatically held

to be guilty. [Para 12) (597-B-C-E~F]

Redaul Husain Khan v. National Investigation Agency 2010 (1) SCC 521; State of Maharashtra v. Dhanendra

F Shriram Bhurle 2009 (11) SCC 541 - distinguished.

Scales v. United States 367 U.S. 203; Elfbrandt v. Russell 384 US 17-19 (1966); Joint Anti-Fascist Refugee Committee

v. McGrath 341 US 123 - referred to.

G '

4. 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 the trial takes several years, and if the accused is denied bail but is ultimately acquitted, Article 21 of the Constitution,

STATE OF KERALA v. RANEEF 593

which is the most basic of all the fundamental rights in A our Constitution, would be violated. Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody, and there is no reason why he should be denied B bail. [Paras 12, 13] [598•H; 599-A-C]

Case Law Reference: "-

2010 (1) sec 521 distinguished Para 12

2009 (11) sec 541 distinguished Para 12 c

367 U.S. 203 referred to Para 12

384 us 17-19 (1966) referred to Para 12

341 us 123 referred to Para 12 D

CRIMINAL APPELLATE .JURISDICTION: Criminal Appeal No. 3 of 2011.

From the Judgment & Order dated 17.10.2010 of the High Court of Kerala at Ernakulam in Bail Application No. 5360 Of. E 2010.

....

L. Nageswar Rao, G. Prakash, Beena Prakash for the

..I Appellant.

U.U. Lalit, E.M.S. Anam, ~.P. Mohamad Shareef for the F

Respondent.

• The Judgment of the Court was delivered by

,:~ .......

MARKANDEY KAT JU, J. 1. Leave granted.

G "!"

2. Heard learned counsel for the parties.

3. The appellant has filed this appeal challenging the -, impugned order of the Kerala High Court dated 17.9.2010

A . granting bail to the respondent, Dr. Raneef, who is a medical

practitioner (dentist) in Ernakulam district in Kerala, and is accused in crime no.704 of 2010 of P.S. Muvattupuzha for offences under various provisions of the l.P.C., the Explosive Substances Act, and the Unlawful Activities (Prevention) Act.

4. The facts of the case are that on 4.7.2010 soon after 8 a.m. seven assailants came in a Maruti Van and assaulted Prof. T.J. Jacob of Newman College, Thodupuzha and chopped off his right palm from the vicinity of his house when he was .),/_ c returning home after Sunday mass. The role attributed to the respondent is that he treated one of the injured assailants (who was injured when Prof. Jacob's son tried to protect his father) by suturing (stitching) his wound on the back after applying local anesthesia at a place 45 kms. away from the place of the. incident.

5. The alleged motive for attacking Prof. Jacob was that he incorporated a question for the internal examination of B.Com. paper criticizing Prophet Mohammed and Islam.

6. The prosecution case is that the respondent gave medical aid to one of the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on Prof. Jacob then immediate medical treatment would be given by the respondent to the injured. The ' respondent stitched the back of an assailant, which is not the ' F job of a dentist. The respondent, along with the other accused I is a member of the Popular Front of India, a Muslim • organization, and was head of its medical committee. Certain documents, C.f2.s, mobile phone, books, etc. including a book called 'Jihad' were allegedly seized from his house and car.

G -

7. The prosecution has placed reliance on the proviso to y ' Section 430(5) of the Unlawful Activities (Prevention) Act, 1967 which states that the accused shall not be released on bail if the Court, on perusal of the case diary or the report under

H Section 173 Cr.P.C. is of the opinion that there are reasonable

STATE OF KERALA v. RANEEF

[MARKANDEY KAT JU, J.] 595

grounds for believing that the accusation against such person A is prima facie true.

8. On the other hand, the case of the respondent as disclosed in the counter affidavit filed before us is that even according to the prosecution case the respondent was not one 8 of the assailants, and he is not named in the FIR. In para 13 of the counter affidavit the respondent has stated that the attack on Prof. Jacob is a .crime which is to be condemned. However, as a pretext to the investigation the police had lashed .out a rein of terror on innocent people of the minority community, people C who are fatally innocent or even had no knowledge of the crime have been falsely implicated. 54 persons have been made accused in the crime. Many residential houses, mosques and offices were raided and searched, and even minor children and women were cruelly tortured both physically and mentally. Holy books and other religious books were thrown out, seized and D taken away and bundled in police stations. War like atmosphere was created in mosques, daily prayers were disrupted and men illegally detained, and physically tortured in custody and false cases booked against innocents.

!~. It is further alleged in the counter affidavit that the Popular Front of India (PFI) or the Social Democratic Party of India (SDPI) are not militant or terrorist organizations. There is no history of crimes against the party or its workers. They are

not banned organizations. The SDPI is a political party F recognized by the Election Commission and the PFI is registered under the Societies Registration Act.

10. The respondent has alleged that he is a dental surgeon hailing from a respectable family in Aluva. His father Late Dr.

~ --< Abdul Karim was a doctor loved and respected by all, who died G as a Civil Surgeon while working in the Government Hospital,· Perumbaroor. In 2001 the respondent started Al Ameen Multi- Speciality Dental Hospital in Aluva. Five other doctors including the respondent's wife, who is also a dental surgeon, are working in the said hospital. The respondent has a son aged H

A 9 years and daughter aged 5 years. He claims that he has a very good reputation and is loved by all due to the services rendered by him to the poor and needy. The respondent's elder sister is a post graduate in zoology, and his younger sister is a law graduate. The book entitled 'Jihad' said to have been found a in his house was a Malayalam translation of a book written in

Urdu in 1927 by a well known and respected religious scholar, Maulana Sayyid Abul Ala Mandoodi and has been in circulation for 83 years, and is available in many book shops . .

11. The respondent has alleged that he has been falsely C implicated only because he medically treated one of the alleged

assailants.

12. At this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution D or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations

( 1) We are presently only considering. the bail matter and are not deciding whether the respondent is guilty or not.

Evidence has yet to be led and the trial yet to commence.

Hence the prosecution is yet to establish by proof beyond reasonable doubt that the respondent was part of a conspiracy which led to the attack on Prof. Jacob.

(2) The case against the respondent is very different from that against the alleged assailants. There is no allegation that the respondent was one of the assailants.

We are of the opinion that at this stage there is no prlma facie proof that the respondent was involved in the crime. Hence the proviso to Section 430(5) has not been violated.

The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defem.t qn accused, so also it is th.e

STATE OF KERALA v. RANEEF 597

[MARKANDEY KAT JU, J.]

duty of a doctor to heal. Even a dentist can apply stitches A in an emergency. Prima facie we are of the opinion that the only offence that can be leveled against the respondent is that under Section 202 l.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section,202 B is a bailable offence.

(3) As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redau/ Husain Khan vs. National Investigation Agency 2010 (1) SCC 521 that merely because an organization has not been C declared as an 'unlawful association' it cannot be said that , tb-~ :>aid organization could not have indulged in terrorist . activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending . money to an extremist organization for purchasing arms D and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra vs. Dhanendra Shriram Bhurle 2009(11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent.

In the present case there is no evidence as yet to prove that the P.F.I. is a terrorist organization, and hence the respondent cannot be penalized merely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty.

In Sea/es vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the G membership clause in the McCarran Act, 1950 distinguished between active 'knowing' membership and passive, merely nominal membership in a subversive organization, and observed : H

"The clause does not make criminal all association with an organization which has been shown to engage in

illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant

SJecifical/y intends to accomplish the aifr!S of the organization by resort to violence."

In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed :

"Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of 'guilt by association' which has no place here."

In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US 123 at 174 (1951) Mr. Justice Douglas of the U.S.

Supreme Court observed :

"In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the F totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within."

We respectfully agree with the above decisions of the U.S.

Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies.

(4) In deciding bail applications an important factor which should certainly be taken into consideration by the Court

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STATE OF KERALA v. RANEEF 599

[MARKANDEY KATJU, J.]

is the delay in concluding the trial. Often this takes several A 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 8 factor, but it is certainly one of the important factors in deciding whether to grant bail.

13. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail.

C A doctor incarcerated for a long period may end up like Dr.

Manette in Charles Dicken's novel 'A Tale of Two Cities',' who

~ forgot his profession and even his name in the Bastille.

14. With the above observations, this appeal is dismissed.

B.B.B.

Appeal dismissed.