Kerala High Court
M.K.Naser vs The Union Of India on 13 March, 2019
Equivalent citations: AIRONLINE 2019 KER 308
Author: Ashok Menon
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940
CRL.A.No. 162 of 2019
AGAINST THE ORDER/JUDGMENT IN CRL.MP 160/2018 IN SC
NO.01/2015/NIA of SPECIAL COURT FOR THE TRIAL OF NIA
CASES,ERNAKULAM DATED 15.01.2019
APPELLANT/PETITIONER/ACCUSED NO.3:
M.K.NASER
AGED 49 YEARS
S/O.KUNHAN PILLAI, HOUSE NO.VII/276,
MARAGATTU HOUSE, KUNHUNNIKKARA, ALUVA,
ERNAKULAM.
BY ADVS.
SRI.P.C.NOUSHAD
SRI.E.A.HARIS
SRI.M.P.ABDURAHIMAN
SRI.P.K.ABDURAHIMAN (POOLACKAL KARATCHALI)
RESPONDENT/RESPONDENT/COMPLAINANT:
THE UNION OF INDIA, REPRESENTED BY THE DEPUTY
SUPERINTENDENT OF NATIONAL INVESTIGATION
AGENCY, KOCHI BRANCH OFFICE, REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR FOR NIA, HIGH COURT
OF KERALA, KOCHI-682018.
BY ADV. SRI.M.AJAY, SPL. P.P FOR NIA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.03.2019, THE COURT ON 13.03.2019 DELIVERED THE
FOLLOWING:
Crl.Appeal No.162/2019
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JUDGMENT
[Crl. Appeal No. 162 of 2019] Ashok Menon, J.
The third accused in S.C.No.1/2015/NIA, a case charge sheeted by the National Investigation Agency (NIA) before the Special Court for NIA cases, Ernakulam, is in appeal before us challenging the rejection of his bail application filed as Crl.M.P.No.160/2018 vide impugned order dated 15.01.2019 of the learned Special Judge.
2. It is submitted that the appellant was originally accused No.28 in Crime No.704/2010 registered at Muvattupuzha Police Station, investigation of which was taken over by the NIA. Though 37 accused were arraigned, only 31 faced trial in the case, taken on file as S.C.No.1/2013. That parent case was disposed of on 30.04.2015 and the case against the appellant and some others was split up and refiled as S.C.No.1/2015. The appellant remained absconding, and after being a Crl.Appeal No.162/2019 -3- fugitive for about five years, he surrendered on 06.11.2015 and has been in judicial custody ever since. He was taken to several places by the NIA. The trial is yet to commence.
3. The appellant seeks indulgence of this Court to upset the findings of the court below refusing to grant him bail. He has been in custody from 06.11.2015, and there is little possibility of the trial commencing immediately. It is further pointed out by the appellant that in the judgment disposing of the parent case, it was observed by the court below that the prosecution did not succeed in establishing the alleged conspiracy hatched by the accused at three places, namely, Seemas Auditorium, Perumbavoor, Kothamangalam Municipal Park and KWA Inspection Bungalow, Muvattupuzha, on 28.03.2010, 03.05.2010 and 03.10.2010 respectively. Admittedly, there is no direct involvement of this accused in the alleged assault. The prosecution case is that he was the kingpin of the alleged conspiracy. The prosecution having failed to prove the conspiracy, Crl.Appeal No.162/2019 -4- has no evidence to rope in this accused. Despite that, he is being incarcerated unnecessarily, curtailing his liberty. The impugned order is therefore, set as liable to be set aside, and he be released on bail is the prayer of the appellant.
4. The Deputy Superintendent of Police, NIA, filed an objection by stating that this accused was deliberately avoiding arrest, skulking from the investigating agency and escaping the clutches of law. The offence alleged against him is very grievous. The appellant is a prominent leader of the religious militant organisation called Popular Front of India (PFI) and formerly, the District Convenor of its precursor National Development Front (NDF) in Ernakulam District. He is the principal conspirator of the barbaric terrorist activity on the basis of which, this crime was registered. It is pointed out that this accused had made arrangement for acquiring a Maruthi Omni Van for ferrying the co-accused to carry out their intention. He is the one, who secured the SIM cards Crl.Appeal No.162/2019 -5- for mobile phones, distributed among other accused. Even after his arrest, he refused to co-operate with the investigation and has remained tight lipped about the aspects of conspiracy. In case, he is set at liberty, there is every possibility that he may indulge in similar anti-national activities, and would act to the detriment of the State and its citizens.
5. We heard the learned counsel appearing for the appellant and the learned Special Public Prosecutor, Sri.M.Ajay, appearing for the NIA.
6. The argument of the learned counsel appearing for the appellant is that the appellant has been in judicial custody for an unreasonably long time and no purpose would be served by further incarceration, for the reasons stated above. The learned counsel also would submit that the sixth accused, namely Azeez Odakkali, who had surrendered on 03.03.2016 before the trial court and was under
judicial custody, was granted bail by this Court by judgment dated 06.06.2018 in Crl.Appeal No.351/2018. Crl.Appeal No.162/2019 -6- This accused being similarly placed, is entitled to the relief.
7. The accused stands charge sheeted for offences punishable under Sections 120B, 143, 147, 148, 149, 153A, 201, 202, 212, 307, 323, 324, 326, 341, 427 and 506(ii) of IPC; Section 3 of the Explosive Substances Act and under Section 15 read with Sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 ["UA(P) Act" for brevity].
8. There is no dispute that bail for an offence punishable under the UA(P) Act could be denied under the proviso to Section 43D(5), if there are reasonable grounds for believing that the accusation against such person is prima facie true. In the instant case, it is prima facie established that the accused has a major role in commission of the offence. It may be true that the accused did not actually participate in the act of assault. But, conspiracy is a very important ingredient of any crime.
Crl.Appeal No.162/2019-7-
9. One of the co-accused, K.A.Najeeb (fifth accused), was also absconding for a period of five years and thereafter arrested on 10.04.2015, and is in judicial custody. He was also involved in the conspiracy along with the appellant herein, in arranging vehicle, and also had role in other activities like, dropping the accused persons at the scene of occurance, helping them to escape from there after commission of the act, etc. His bail application was rejected by the special Judge, and appeal filed by him as Crl.A.No.759/2018 before this Court was dismissed vide judgment dated 01.08.2018, considering the fact that he was very actively involved in the planning and execution of the offence.
10. It appears that the appellant (third accused) was the key instigator and conspirator in attacking Prof.T.J.Joseph for holding him responsible for blasphemy in setting a question paper for college examination. The conspiracy resulted in the Professor being attacked and his Crl.Appeal No.162/2019 -8- right palm being chopped. It is revealed from the investigation that the appellant/third accused along with K.A.Najeeb (fifth accused) had made arrangements as stated above. He had also made arrangements for financing the attack with some of the co-accused and it is as per his instructions that the original accused Nos.2 and 12 had went on to purchase the Van. He had also arranged the original accused No.29, Kasim, for fixing fake number plate in the Van. There are also indicators regarding involvement of this accused in obtaining mobile phones and sim cards on 03.07.2010 for execution of the assault. All these matters were considered by the learned Special Judge while rejecting the application for bail. The fact that the appellant was absconding for a fairly long period and successfully evading his arrest, indicates that he is capable of going underground again on being released on bail. The fact that he had surrendered before the Police is not a mitigating circumstance for granting of bail. The Crl.Appeal No.162/2019 -9- roles of this accused and the fifth accused, whose application for bail was rejected by this Court, are almost similar. The Prosecutor would rather project this accused as the kingpin behind the conspiracy. The fact that the judgment in the parent case states regarding lack of evidence with respect to the conspiracy at certain places, will also not extenuate the accusation, for this accused to take advantage of.
The Prosecutor has undertaken to expedite the trial and in case there are changed circumstances which warrant this accused to apply for bail again, this rejection will not stand as embargo. With these observations, we dismiss this Criminal Appeal.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON JUDGE dkr/jg