Muhammed Rafi @ Rafi vs Union Of India on 10 June, 2019

[Cites 19, Cited by 0]

Kerala High Court

Muhammed Rafi @ Rafi vs Union Of India on 10 June, 2019

Equivalent citations: AIRONLINE 2019 KER 119

This appeal is filed by accused No.1 in SC No.2/2017/NIA. He filed Crl.M.P No.191/2018 before the Special Court for the trial of NIA cases seeking bail, which came to be rejected by the impugned order dated 30/01/2019. The appellant came to be charge-sheeted based on further investigation conducted u/s 173(8) of Cr.P.C, as per the supplementary charge sheet dated 1/6/2017. The allegation against him is that he hatched a criminal conspiracy with one M.K.Nazar, P.V.Noushad, Subair and Jaleel at different places over phone and in person and in pursuance of the conspiracy, he joined a terrorist gang and had given inputs to the assailants on 4/7/2010. The incident with reference to which he has been charged related to an attack on Prof.T.J.Joseph at Muvattupuzha on 4/7/2010 and the right palm of the victim was chopped off and it was thrown to the nearby compound. Prosecution alleged that the accused were doing the aforesaid act Crl.Appeal No.346/2019 -:3:- in execution of their law alleging blasphemy.

2. Initially, 54 persons were made accused and after investigation, a final report was filed against 27 accused on 10/1/2011. The NIA took over investigation of the case as per order dated 9/3/2011 of the Ministry of Human Affairs. They filed supplementary final report against 9 accused on 8/1/2013 and against one other accused on 12/4/2013. Further investigation was undertaken against absconded persons including the present appellant. In the meantime, SC No.1/2013 was tried against 31 accused, out of which 13 were found to be guilty as per judgment dated 30/4/2015 and the other 18 were acquitted. Supplementary charge-sheet is filed against 6 persons in which appellant is the first accused. He had been charged for offences under Sections 118, 341, 427, 324, 326, 506 (ii), 201, 202, 153A, and 307 r/w 120B of I.P.C., Sections 3 and 7 of the Explosive Substances Act and Sections 16(1)(b), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (for short "UA(P) Act").

3. According to the prosecution, the petitioner is one of the close associates of Sri.M.K.Nazar who was the principal conspirator and he was absconding ever since the commission of Crl.Appeal No.346/2019 -:4:- offence. The petitioner surrendered before Court on 9/10/2018 and since then, he is in judicial custody.

4. Prosecution case is that, during investigation, it was revealed that the accused was a member of the pilot team who was deputed to watch the movements of the victim and convey the same to the assailants for facilitating the terrorist attack. Learned counsel for the appellant submits that in so far as the accused was not charge-sheeted earlier, the fact that his presence could not be made available, cannot be a reason to deny bail. Learned counsel also placed reliance on an earlier judgment of this Court in Crl.Appeal No.214/2018 decided on 11/4/2018 wherein bail was granted to another accused one Mansoor on certain conditions. It is submitted that the case of the appellant stands in the same footing and therefore, he also may be enlarged on bail.

5. Whereas, the learned Special Prosecutor for NIA submitted that a warrant of arrest was pending against the appellant since 2011. But he could not be apprehended as he left abroad. Ultimately it is with the assistance of interpol that he could be deported. Since the crime involved is very heinous and Crl.Appeal No.346/2019 -:5:- had caused severe damage to the secular and democratic fabric of the society, Special Court was justified in rejecting the bail. It is also contended that 2nd proviso to S.43D(5) of the UA(P) Act precludes granting bail to the appellant. Further it is contended that one Savad who was the prime accused and another accused by name Shefeek who was also accused in the case are still at large and releasing the appellant on bail would be detrimental to the interest of justice. Hence, he prayed for dismissal of the appeal.

6. In Crl.Appeal No. 214/18 also, we have taken note of the fact that when a supplementary final report was submitted on 1/6/2017, the said appellant was made the 4 th accused, whereas, he was not made an accused in the earlier report submitted u/s 173(2) Cr.P.C due to paucity of evidence. That was a case in which appellant was arrested on 5/8/2017 and he remained as an under trial prisoner and it was noticed that in some other cases, bail was granted to the other accused. We have also taken note of the fact that there was an allegation that the accused was absconding, and certain documents were produced to indicate that warrant was pending against the said accused as well. Crl.Appeal No.346/2019 -:6:-

7. The proviso to S.43D(5) indicates that an accused person shall not be released on bail, if the Court on a perusal of the case diary or the report made u/s 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against the person is prima facie true. As already mentioned, Kerala police filed a charge-sheet against 27 accused on 10/1/2011 for various offences and NIA filed supplementary charge sheet against 9 accused for similar offences, as already detailed, on 18/1/2013 and on 12/4/2013. It is apparent that the present appellant was not made an accused and there was no charge against him for want of evidence. Only in the supplementary charge sheet filed on 1/6/2017 that the appellant was made an accused. The Court below observed that he was arraigned as an accused in the crime even initially and his name was never deleted or removed from the party array. But it is apparent that no charge was filed against the appellant until 1/6/2017, which apparently means that there was no material to implicate him in the matter. Court below proceeded on the basis that the materials now on record prima facie show that the petitioner was identified as a person who was found in suspicious Crl.Appeal No.346/2019 -:7:- circumstances in the vicinity of the house of the victim and the materials on record prima facie show that petitioner was actively involved for facilitating the attack on the victim and he had actively participated in the conspiracy also. This is a case in which during the earlier trial, several of the accused were acquitted. In fact, out of 31 accused, 13 alone were found guilty. No one has a case that the appellant had committed any overt act relating to the aforesaid crime. The allegation against him is conspiracy and according to the prosecution, at different places on different occasions. Conspiracy requires to be proved. Identification of the accused who is alleged to have been seen in the vicinity where the crime was committed will not prima facie indicate the involvement of the accused and to prove conspiracy, prima facie material has not been relied upon by the Court below. Therefore, this is a fit case in which the accused can be released on bail.

8. That apart, it is understood that there is no possibility of the trial to commence soon, which will also cause substantial prejudice to the appellant. However, since it is found that he was a person who was absconding for a considerably long period, and Crl.Appeal No.346/2019 -:8:- according to the prosecution, he was deported, he can be released on bail only on the following strict conditions:-

(i) That the appellant shall execute a bond for `10,00,000/- (Rupees Ten lakhs only) with two solvent sureties for the like sum to the satisfaction of the Special Court.

(ii) The appellant shall not leave the territory of the village in which his residential house is situated, except for the purpose of reporting either before the Investigating Agency or the Special Court.

(iii) The appellant shall not, in any way, tamper with the evidence involved in the case and shall not intimidate or influence, either directly or indirectly, any of the witnesses involved in the case.

(iv) The appellant shall not involve in any such offence in future and shall not use any means of communication including mobile phone for any such purpose.

(v) The appellant shall not, in any way, make any open declaration, press meeting, media/channel discussion or discussion or communication through social media, either directly or indirectly, and shall not indulge in any open Crl.Appeal No.346/2019 -:9:- discussion/seminar, during the period of bail.

(vi) The appellant shall report before the Investigating Agency or any Police Officer, as directed by the Investigating Agency in writing, on all Mondays, Wednesdays and Fridays in between 8 a.m and 10.00 a.m.

(vii) The appellant shall surrender his passport before the Special Court and if he is not in possession of the same, he shall file an affidavit to that effect.

(viii) If there is violation of any of the conditions, it shall be open for the Public Prosecutor to seek cancellation of bail.

Criminal Appeal is allowed accordingly.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                             N.ANIL KUMAR

Rp              //True Copy//                    JUDGE

                  PS to Judge

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