Kerala High Court
Abdul Latheef vs The Sub Inspector Of Police
Author: R.Basant
Bench: R.Basant, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933
Crl.A.No.2198 of 2011
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AGAINST THE ORDER DATED 17.12.2011 IN Crl.M.P.No.1398/2011
IN S.C.No.41/2011 OF THE SPECIAL COURT FOR TRIAL OF
NIA CASES, ERNAKULAM, KERALA.
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APPELLANT/PETITIONER/ACCUSED NO.25:-
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ABDUL LATHEEF,
S/O.MUHAMMED, KARIMPAYIL VEEDU, ULIYANNOOR KARA,
KADUNGALLUR, ERNAKULAM DISTRICT.
BY ADV. SRI.SUNNY MATHEW
RESPONDENTS/RESPONDENTS/COMPLAINANT:-
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1. THE SUB INSPECTOR OF POLICE,
MUVATTUPUZHA POLICE STATION,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
2. THE NATIONAL INVESTIGATION AGENCY,
REPRESENTED BY ITS STANDING COUNCEL,
HIGH COURT OF KERALA, ERNAKULAM.
R1 & R2 BY SPECIAL PUBLIC PROSECUTOR SRI.M.AJAY
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2012,
ALONG WITH Crl.A.No.2199/2011, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:-
Crl.A.No.2198 of 2011
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1 : TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT
IN CRL.A NO. 542/2010 DT.23.9.2011
ANNEXURE A2 : TRUE COPY OF THE ORDER DATED 17.12.2011 PASSED BY THE
SPECIAL CURT FOR TRIAL OF NIA CASES, ERNAKULAM,
KERALA IN CRL.MP No.1398/2011 IN S.C.No.41/2011
RESPONDENTS' ANNEXURES: NIL
- true copy -
vku.
R.Basant & K.Vinod Chandran,JJ.
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Crl.A.Nos.2198 of 2011 &
2199 of 2011.
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Dated this, the 1st day of February, 2012
JUDGMENT
R.Basant,J.:
These appeals are preferred by accused No.19 and accused No.25 in S.C.No.41 of 2011, pending before the Special Court for Trial of NIA cases, Ernakulam. Their applications for bail were dismissed by the learned Special Judge by the impugned common order. In the nature of facts and circumstances in this case we feel it appropriate to dispose of these appeals by this common judgment.
2. S.C.No.41of 2011 relates to an incident that had taken place on 4.7.2010. To put the allegations in a nut shell, it is alleged that a conspiracy was hatched to wreak vengeance against one Prof. Joseph. The alleged indiscretion committed by him was that he included in a question paper set by him for his students certain objectionable and blasphemous references to the Prophet. A conspiracy was hatched and 8 persons including a driver allegedly committed the dastardly act of chopping off the right palm of the said Prof.Joseph. Initially crime was registered alleging offences punishable under the Indian Penal Code.
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Subsequently, allegations have been raised against the accused persons for having committed offences punishable under the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as UAP Act) also. In the course of investigation, the appellants have been arraigned as accused No.25 and accused No.19 respectively. Accused No.19 was arrested on 4.7.2010, whereas accused No.25 was arrested on 21.7.2010. They continue in custody from the date of their arrest.
3. It would be appropriate to mention that on 14.1.2011 the final report was filed by the then investigating agency - the State Police. Cognizance was taken by the learned Sessions Judge and it is accordingly that S.C.No.41 of 2011 was numbered. Subsequently, as per order dated 1.4.2011, the investigation of the case has been taken over by the National Investigation Agency. Investigation is in progress. The appellants continue to be in custody.
4. The appellants have been making repeated attempts to secure bail. Consequent to dismissal of the application of accused No.19 for bail, he had preferred Crl.A.No.1889 of 2011 and another Bench of this Court vide judgment dated 24.11.2011 in the said appeal had rejected the prayer for bail. Accused No.25, the appellant in Crl.A.No.2198 of 2011, had also come to this Court to challenge Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 3 -
an earlier order rejecting his bail application. That appeal, Crl.A.No.542 of 2011, was dismissed by another Bench of this Court vide judgment dated 23.9.2011. Subsequently, the appellants had renewed their prayer for grant of bail before the Special Court. By the impugned common order, their claims for bail were rejected. These appeals are hence preferred under Section 21(4) of the National Investigation Agency Act, 2008.
5. The learned counsel for the appellants Sri.Sunny Mathew argues that the appellants who are remaining in custody from 15.8.2010 and 21.7.2010 do not deserve to continue in custody. The allegations raised against them by the State are inherently fragile and unacceptable. At any rate, at this point of time they do not deserve to be further incarcerated in prison, contends the learned counsel for the appellants.
6. Sri.M.Ajay, the Special Public Prosecutor for the NIA, vehemently opposes the application. He submits that both applications are opposed and the prayer for bail of accused No.19 (appellant in Crl.A.No.2199 of 2011) is doubly opposed.
7. The learned Special Public Prosecutor points out the provisions in Section 43D(5) of the UAP Act. Considering the nature of the offences, parliament was compelled to enact such strict Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 4 -
provisions relating to grant of bail for persons accused of offences under Chapters IV and VI of the UAP Act, points out the learned Prosecutor. There are reasonable grounds for believing that the accusations against the appellants are prima facie true. In these circumstances, they are not entitled to be released on bail, contends the learned Prosecutor.
8. The learned Prosecutor raises another technical objection also. The learned Prosecutor points out that a coordinate Bench of this Court by the two judgments referred above have already taken the view that there are reasonable grounds for believing that the accusation against the appellants is prima facie true. The appellants not having challenged the said observations/ findings in the two judgments referred above, cannot now hope to contend before this Court that there are no reasonable grounds for believing that the accusations against the appellants are prima facie true. In the absence of a challenge against the earlier judgments of this Court, this Court will not be justified in granting the appellants bail at this stage, contends the learned Prosecutor.
9. The learned Prosecutor contends that even assuming that a subsequent application is legally maintainable notwithstanding such findings entered by a coordinate Bench of this Court, there has Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 5 -
been no change of circumstances after the earlier judgments were passed justifying the present request to this Court to alter the view relating to the right of the appellants for bail. In this view of the matter the learned counsel contends that there is no reason for this Court now to deviate or alter the views expressed in the two judgments referred above.
10. We have gone through Section 43D(5), which we extract below:-
43D(5) "Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true".
(emphasis supplied) It is certainly not the law that bail cannot be granted. Stricter provisions have been enacted in respect of grant of bail, evidently taking note of the impact that the offences under Chapters IV and VI Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 6 -
leave behind on the State and the polity. There can be no doubt that bail can be granted in a prosecution for offences under Chapters IV and VI of the UPA Act only if the claim for bail would be justified under the proviso to Section 43D(5). Constitutional validity of Section 43D(5) is not challenged at all before us.
11. It is trite that the principles of res judicata are not applicable to bail applications. But, repeated filing of successive bail applications without there being any change of circumstances would lead to bad precedents as held in State of T.N. v. S.A.Raja [(2005) 8 SCC 380]. Whether sufficient period of time has elapsed after the earlier disposal of the bail application, that can itself be reckoned as a change of circumstance justifying a review of the claim for bail. The short question is whether there have been change of circumstances justifying a fresh consideration of the applications for bail. We are, in these circumstances, unable to accept the contention that the finding recorded in an earlier bail application/appeal by the Bench which dealt with the matter would preclude the option of this Court to consider a fresh claim for bail now. That the earlier order was not challenged before superior Courts cannot fetter the jurisdiction of the Courts concerned to consider subsequent bail applications or to take a different view.
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12. According to us, what is crucial is the language of the proviso that, to grant bail the Court must be "of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true" .
13. The amount of inputs/materials that may be necessary to induce the opinion that there are reasonable grounds for believing that the accusation against the indictee is prima facie true would necessarily vary depending upon the stage of the investigation and the period of incarceration of the indictee in prison. The insistence on a rigid uniform standard applicable to all times may be contrary to the elasticity offered by the language used in the proviso to Section 43D(5). At the very commencement of the investigation, the Court may be justified in coming to a prima facie conclusion of the truth of the accusation on the basis of materials, which materials may at a later stage be insufficient to come to such a conclusion. We are in these circumstances certainly of the opinion that considering the elapse of time after the earlier rejection of the prayer for bail by another Bench of this Court, this Court would certainly be justified in considering afresh the claim for bail of the appellants. We, therefore, proceed to consider the claim for bail of the appellants afresh on merits separately.
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14. Before we take up specific facts in respect of the appellants, we take note of the submission of the learned Prosecutor that the investigation is not complete yet. It is true that the State Police had earlier filed a final report on 14.1.2011. But, after the present investigators took up investigation by order dated 1.4.2011, several other circumstances have been revealed. The investigators are still at a disadvantage because the principal accused - A28 M.K.Nazar - has not been apprehended so far. Every effort is being taken by the investigators to secure the apprehension of A28. According to the investigators, some more time is required to apprehend A28 and complete the investigation. Other absconding accused also have to be apprehended, it is submitted. It is submitted that some of the absconder accused are abroad and have links with powerful groups. The release of the accused persons arrested now would hamper the smooth course of investigation. That would impede the ability of the investigators to expeditiously secure the arrest of the other accused and completion of the investigation, submits the learned Prosecutor.
15. We now come to specific facts. So far as accused No.25, the appellant in Crl.A.No.2198 of 2011, is concerned, he has been remaining in custody from 21.7.2010. We specifically requested Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 9 -
the learned Prosecutor to explain to us the nature of the materials that have been secured against the appellant by the previous investigators as well as the present investigators. The learned Prosecutor submits that the prosecution wants to rely, at the moment, on the statements of C.Ws 39, 42, 43, 44, 66, 67, 80 and
114.
16. The statements of these witnesses have been read to us. Called upon to be precise and specific, the learned Prosecutor submits that the materials collected so far has revealed that accused Nos.35, 36 and 8 were harboured by the appellant in an apartment, the interior design work of which was being undertaken by the brother-in-law of the appellant. Accused 35 and 36 were together harboured on different dates, whereas accused No.8 was harboured on another date - both after the incident on 4.7.2010. Called upon to explain the precise material against the appellant in respect of these allegations, the learned Prosecutor fairly accepts that only the evidence of C.W.39 has a direct bearing on the complicity of A25. Though evidence has been secured to show that accused Nos.35 and 36 together and A8 were accommodated in the said apartment in Thrissur town, the specific act of the appellant (A25), on which evidence was procured, is only that he went with the 8th accused to Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 10 -
the said flat on one day, left him there and went way. He came on a later date there, after two days, and moved A8 away from that flat. This is the only piece of evidence available at the moment, accepts the learned Prosecutor.
17. Though in the earlier judgment dated 23.09.2011 there are observations to suggest that the appellant (25th accused) had other roles also and there are other materials also, now it is unambiguously accepted that the evidence is only in respect of harbouring of the 8th accused and only C.W.39 furnishes specific evidence implicating the 25th accused. Even though in the earlier judgment dated 23.9.2011 there is reference to the Call Detail Records of the mobile phone used by the appellant, the learned Prosecutor now submits that at the moment and on the basis of the evidence available, the prosecution wants only to rely on the statement of C.W.39 and the allegation regarding the harbouring of A8.
18. We note that the appellant has been in custody from 21.7.2010. We are not satisfied that prima facie sufficient materials are available to justify denial of bail to the appellant by invoking the proviso to Section 43D(5). We are satisfied that subject to appropriate conditions that ensure the interests of a fair, proper and Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 11 -
expeditious investigation, the appellant (accused No.25) can be granted bail. Crl.A.No.2198 of 2011 shall stand allowed and the appellant shall be released on bail subject to conditions.
19. Coming to the challenge raised in Crl.A.No.2199 of 2011, the appellant is remaining in custody from 18.7.2010. Allegations against the appellant have been explained to us. We deem it appropriate to extract the following passage from paragraph 5 of the earlier judgment of this Court dated 24.11.2011 in Crl.A.No.1889 of 2011, which gives this Court an idea of the materials relied on by the investigators against the appellant. We extract below paragraph 5 of the said judgment:
"We are afraid that we are unable to accept the above submission made on behalf of the appellant. A19 had arranged a rented house at Vyttila for harbouring A12 and A45 and they were identified by CW 59. The appellant had obtained on rent a lancer car bearing Reg.No.KL07-AH 1515 from CW 112. The said lancer car was handed over to A35 on 3.7.2010 for transporting the assailants on the directions of A28. After the attack on Professor Joseph whose right palm was chopped of on 4.7.2010, A35 drove the lancer car to Thaikkattukara and he accompanied with the car to shift A1 and A5 who were injured in the occurrence to the house of Abdul Salam for getting them treated by Dr. Raneef. The appellant had also provided financial assistance to A5 at his hideout at Nandiyal in Andhra Pradesh. The appellant is involved in six crimes committed within the limits of Kalady Police Station. He is the unit member of the Kalady unit of the Popular Front of Crl.A.Nos.2198 of 2011 & 2199 of 2011 - 12 -
India and is also the parade instructor. Since 200 the appellant was active in the NDF which was the precursor of PFI. He was the parade commander of the freedom parades conducted by PFI in the year 2006 and 2007. He had participated in the conspiracy from the very beginning".
The learned Prosecutor has placed before us the materials collected by the investigators against accused No.19. In particular, the statements of C.Ws 59, 112, 78 and 79 have been placed before us.
20. The learned Prosecutor further submits that in its crux the allegation against the appellant (A19) is that he had harboured accused No.12 in a house adjacent to a lodge run by him. A vehicle which C.W.112 had entrusted in his possession was allegedly used for transportation of miscreants engaged in the actual operation. He, it is further alleged, was aware of the place where the 5th accused was absconding. He had allegedly taken C.W.78 and 79 to Nandiyal in Andhra Pradesh where A5 was hiding. The learned Prosecutor further points out that the appellant was a co-accused in a murder case along with A5. He is also an accused in several other crimes. He has a history sheet opened in his name in the local police station. The learned Prosecutor submits that release of this accused, A19, on bail at this juncture would seriously jeopardise the further investigation in this case.
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21. We wanted the learned Prosecutor to explain how much time will be required by the investigators to complete the investigation. We cannot afford to ignore the fact that the crime was committed on 4.7.2010 and A19 is remaining in custody from 15.8.2010. The present investigators have taken over investigation as per order dated 1.4.2011. The actual investigation had commenced in May, 2011 only, it is submitted. The learned Prosecutor, after taking instructions, submits that though the investigators are not in a position to exactly specify the further time that is required to complete the investigation, it is expected that the investigation can be completed within a further period of three months.
22. The learned counsel for the appellant (A19) submits that all the cases registered against him except a prosecution under Section 323 IPC have now ended in acquittal. There was no evidence whatsoever to support the allegations raised against the appellant in such prosecutions. The investigation into the crime was already completed by one agency and the present agency continuing the investigation has received sufficiently long time to complete the investigation. At this juncture, it is idle for the investigators to expect unlimited further time from this Court to complete the investigation.
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The learned counsel for the appellant points out that in a system recognising the sacrosanct right of persons for liberty, unlimited detention on the ground that the investigation has not been completed by the NIA will not be justified. This offends the cherished right of personal liberty guaranteed under Article 21 of the Constitution, urges the learned counsel for the appellant. The learned counsel for the appellant places reliance on the observations in paragraphs 14 and 26 of the decision in Sanjay Chandra v. CBI dated 23.11.2011 in Crl.A.No.2178 of 2011 and connected matters.
23. We have considered all the relevant inputs. We take note of the observations of the earlier Bench (extracted above by us) in the judgment dated 24.11.2011. We are not, at this juncture, proceeding to consider afresh whether bail can be granted under the proviso to Section 43D(5). Suffice it to say that in the light of the observations made by the earlier Bench and in the light of the specific material to which our attention has been drawn, we are satisfied that the present investigators deserve to be granted further time to complete the investigation. Investigation cannot evidently go on endlessly. There must be a sense of expedition on the part of the investigators to complete the investigation at the earliest. We are satisfied that the investigators can now be given time till 1.4.2012.
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Investigation will have to be completed at the earliest, at any rate, we are conscious of the challenges before the investigators in a crime like this. It is not our intention to prescribe any rigid time frame for completion of investigation. That the investigators need further time to complete the investigation, and collect materials against the appellant, shall not be reckoned as a relevant circumstance after 1.4.2012. If investigation is not completed by then, needless to say, the appellant shall be at liberty to renew his application for bail and thereupon the question shall be considered afresh as to whether the appellant deserves to be granted bail in accordance with the proviso to Section 43D(5). The question whether there are reasonable grounds for believing that accusations against the appellant are prima facie true, shall be considered afresh by the Courts after 1.4.2012 on the basis of the entire materials which the investigators can collect by then, i.e. 1.4.2012.
24. In the result:
(A). Crl.A.No.2199 of 2011 is dismissed with the above observations.
(B)(i) Crl.A.No.2198 of 2011 is allowed.
(ii) The appellant (accused No.25) shall be released on bail on the following terms and conditions:
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(a) He shall execute a bond for `.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the Special Court.
(b) He shall not leave the Sessions Division of Ernakulam until further orders without further specific orders of the Special Court.
(c) He shall make himself available for interrogation before the investigating officer at their camp office at Kochi on all Mondays, Wednesdays and Fridays until further orders.
(d) We make it clear that the Special Court shall be at liberty to modify the conditions imposed, if sufficient circumstances are revealed.
Sd/-
R.Basant, Judge Sd/-
K.Vinod Chandran, Judge.
vku/-
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P.S to Judge