Kerala High Court
K.A. Anoop @ Anoop @ Anu vs State on 1 November, 2016
Bench: C.K.Abdul Rehim, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938
CRL.A.No. 937 of 2016 ()
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APPELLANT/PETITIONER/A9 (CUSTODY):
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K.A. ANOOP @ ANOOP @ ANU
S/O. ABU, 34 YEARS,
KANHIRAPAMBIL VEEDU,
VEDIMARA BHAGAM, NORTH PARAVOOR.
BY ADVS.SRI.V.T.RAGHUNATH
SMT.C.V.RAJALAKSHMI
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE
REP.BY NATIONAL INVESTIGATION AGENCY, KOCHI,
THROUGH SPL. PUBLIC PROSECUTOR, NIA,
HIGH COURT OF KERALA.
BY ADV. SRI.M.AJAY, SPL. P.PFOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01-11-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
C.K.ABDUL REHIM & B.SUDHEENDRA KUMAR, JJ.
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Crl. Appeal No. 937 of 2016
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Dated this the 1st day of November, 2016
JUDGMENT
Abdul Rehim,J.
The appellant herein is the 9th accused in SC 2/2016/NIA (old SC 4/2010/NIA) on the files of the Special court for trial of NIA cases, Ernakulam. The above appeal is filed under section 21(4) of the National Investigation Agency Act 2008 challenging order of the said court in Crl.M.P.66/2016, dated 7.5.2016. By the impugned order an application for bail submitted by the appellant was dismissed.
2. The prosecution allegation in the case is that, in connection with the continued detention of Sri. Abdul Nasar Madani in Coimbatore Jail, the accused persons conspired to wage war against the Government of India and to strike terror among people. In the first week of September 2005, on the basis of such a conspiracy, accused 1 to 9 forcefully took a Bus belonging to Tamil Nadu Government, bearing registration No.TN 01 N 6725, which was proceeding from Ernakulam Bus Stand to CRA.937/2016 2 Salem with 31 passengers. The accused took the Bus from Kalamassery by pointing gun and other arms on the Driver and by threatening the passengers. The Bus was taken to a place called 'popemala' and after getting down all the passengers, the Driver and the Conductor the Bus was set to fire and fully destroyed. The accused thereafter escaped from the scene of occurrence.
3. The appellant contended that he was arrayed as an accused only after the further investigation conducted based on permission granted by the trial court. According to him he was working abroad and was not having any knowledge about implication of him in the case. It is contended that, since his Passport was in the custody of the employer he was not in a position to return India. According to him, he went abroad after 9 months of his marriage and thereafter he has not lived together with his wife. Eventhough a girl child was born out of the wedlock he could not see the child so far. It is contended that the parents of the appellant are old aged persons and he is the only bread winner of the family. CRA.937/2016 3 Further allegation is that the investigating agency had submitted final report as early as in the year 2010 and the presence of the appellant is not needed further for any purpose of the investigation.
4. Learned counsel for the appellant contended that the occurrence was during September 2005 and that the appellant was not implicated as an accused when the final report was submitted by the local police, who investigated the case till 19.2.2009. It is further contended that even after the court below permitted further investigation in the case, the petitioner's name was not cited as an accused in the FIR, which was re-registered by the National Investigation Agency on 22.1.2010. It is contended that, only when the NIA submitted a report on 17.12.2010, name of the appellant was included in the array of accused for the first time. Therefore it is contended that the implication of the appellant as accused in the case is not based on any convincing materials and that the investigating agency had falsely implicated the appellant only as an after thought. CRA.937/2016 4
5. Learned Special Public Prosecutor appearing for NIA had placed the relevant records for our perusal. It is evident that the date of occurrence was on 9.9.2005. The local police who had investigated the case at first hand submitted a final report on 19.2.2009. Subsequently an application for further investigation was filed before the court below, which was allowed in the year 2009 itself. During the course of further investigation conducted by the local police a report was filed on 18.11.2009 implicating the appellant as the 9th accused. It is afterwards that NIA took over the investigation during 2010 by re-registering the FIR as Crime No.5/2010. It is admitted that no name of any of the accused was shown in the re-registered FIR. According to the Special Public Prosecutor, the original FIR was re-registered as such. But it is contended that, even at the time when the FIR was re- registered there was already a report submitted before the court implicating the appellant as the 9th accused. The Special Public Prosecutor had produced records which would indicate that, inclusion of the appellant in the array of CRA.937/2016 5 accused was on the basis of confession statement given by accused No.7, under section 164 of the Cr.PC., before the learned Magistrate. A copy of the said statement is made available for our perusal. On going thorough the statement it appears that the co-accused had confessed that the appellant had participated in the conspiracy on the previous day of the incident. It is also mentioned in the statement that the appellant accompanied the Bus from Kalamassery onwards along with some of the co-accused and that he was present at the spot of occurrence, and he left from the scene of occurrence along with the co-accused who were present inside the Bus and who had set fire to the Bus.
6. The offences alleged against the accused in the final report filed are under section 120(B), 121(A), 323,364,435,506 (ii) read with section 34 of IPC, section 4 of PDPP Act 1984 and section 16(i) (b) and 18 of the Unlawful Activities (Prevention) Act 1967. The court below had declined the bail observing that, in the light of the proviso to sub section (5) of section 43 D of the UA (P) Act the court is CRA.937/2016 6 bound to peruse the materials on record and to arrive at a satisfaction as to whether there are reasonable grounds for believing that the accusation made against the accused is prima facie true or not. It was observed that, it is not necessary to arrive at any final conclusion and it is only sufficient that the courts believe that the accusation against the accused to be true. If the court is of the opinion that there are prima facie case against the accused to believe that the accusation are true, the court is bound to refuse the bail
7. The proviso to section 43(D)(5) restrains the court from releasing any person accused of any offence punishable under Chapter IV and VI of the UA (P) Act, if on a perusal of the case diary or report made under section 173 Cr.P.C. it is of the opinion that there are reasonable grounds for believing that the accusation made against the person seeking bail are prima facie true. Learned counsel for the appellant contended that the court need to look into the circumstances under which the person seeking bail is implicated in the case, in order to arrive at a conclusion as to whether the CRA.937/2016 7 accusations against such person is prima facie true or not. We are of the considered opinion that in order to arrive as to whether accusations are prima facie true or not, the court can only rely upon the Case Diary or the materials such as report made under section 172 Cr.PC. In the case at hand the NIA had already submitted final report and the implication of the appellant herein as accused is on the basis of the confession made by a co-accused, as already discussed. The said material may be a piece of admissible evidence during the trial as contemplated under section 30 of the Indian Evidence Act 1872. At this stage there is no material available before this court to prima facie arrive at a conclusion that the accusations are not genuine. Hence the restrainment imposed through the proviso to section 43 D(5) of UA(P) Act will stand in the way of the granting bail to the appellant.
8. Learned counsel also contended that accused Nos. 7 and 8, against whom identical accusations were made, have already been released on bail by the trial court. Therefore it CRA.937/2016 8 is contended that there is no justification in keeping the appellant in custody as an under trial prisoner. Learned Special Public Prosecutor pointed out that release of those accused was at a stage before incorporating offences under UA (P) Act and that those accused were not absconding as that of the appellant. However, we are of the considered opinion that the release of any co-accused prior to incorporation of offence under UA (P) Act cannot be taken as a ground to overcome the restrainment provided under section 43 D(5) of the UA (P) Act .
9. Learned Special Public Prosecutor had submitted that the appellant stands implicated in 4 other cases registered at different police stations within the State, in which investigation or trial is under progress. The above aspect is pointed out as an added factor for denying bail to the appellant. Learned counsel for the appellant on the other hand contended that, the trial of the case in hand is being indefinitely delayed, despite the fact that the final report was submitted as early as on 17.12.2010. Learned Special Public CRA.937/2016 9 Prosecutor submitted that the trial is delayed only because some of the accused are in Bangalore Jail and is facing trial in some other cases registered in Karnataka. However it is submitted that facilities are now provided in the NIA courts at Ernakulam to conduct the trial of the case through video conferencing. According to him the trial in this case will be commenced soon and it could be finalised within a short period.
Under the above mentioned circumstances we find no merit in the above appeal. Consequently, the appeal is hereby dismissed. The trial court will take all earnest steps to expedite the trial in the case and to complete the same at the earliest possible.
C.K.ABDUL REHIM, JUDGE.
B.SUDHEENDRA KUMAR, JUDGE.
Pmn/