Kerala High Court
Azeez Odakkali vs Deputy Superintendent Of Police on 29 June, 2017
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY,THE 29TH DAYOF JUNE 2017/8TH ASHADHA, 1939
CRL.A.No. 311 of 2017
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APPELLANT/PETITIONER/ACCUSED NO.6:
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AZEEZ ODAKKALI,
AGED 31 YEARS, S/O BAVA, KIZHAKKEYIL HOUSE,
VII/403, EKKUNAM, PALLIPADY,
ASMANNOOR VILLAGE, KURUPUMPADI,
ERNAKULAM DISTRICT.
BY ADVS.SRI.P.K.MOHAMED JAMEEL
SRI.P.C.NOUSHAD
RESPONDENTS/COMPLAINANTS.:
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1. DEPUTY SUPERINTENDENT OF POLICE
NIA, KOCHI BRANCH OFFICE.
2. THE NATIONAL INVESTIGATION AGENCY
KOCHI BRANCH OFFICE, RESPONDENTS 1 &2
REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR,
NATIONAL INVESTIGATING AGENCY,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.M.AJAY, SPL. P.P FOR NIA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.K.ABDUL REHIM & A.M.BABU, JJ
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Crl.A.311 of 2017
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Dated : 29th June, 2017
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JUDGMENT
A.M.Babu, J
1.Appellant is the 6th accused in S.C.1/2015 NIA. The case is pending before the Special Court for NIA cases, Ernakulam. The appellant is in custody. He sought bail under Sec.439 of Cr.P.C. The special court dismissed his application. Aggrieved thereby, the appeal is filed under Sec.21(4) of the National Investigation Agency Act.
2.The accused persons including the appellant allegedly committed various offences. Those are offences punishable under Secs 120B, 143, 147, 148, 149, 153A, 201, 202, 212, 307, 323, 324,326, 341, 427 and 506 of IPC, Sec.3 of the Explosive Substances Act and Secs 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act (the UA(P) Act for short).
Crl.A.311/17 2
3.The prosecution case is briefly this : A professor by name T.J.Joseph prepared a question paper for an internal examination in his college. It contained a question which was allegedly profane as there was a derogatory remark against Prophet Mohammed. The accused persons got offended. They decided to take law into their hands. They conspired to do away with Joseph. The conspiracy hatched at a meeting held on 28.3.2010 in Seemas Auditorium, Perumbavoor. There was another such meeting on 3.4.210. It was held in the Inspection Banglow of the Kerala Water Authority at Muvattupuzha. The appellant was one of the conspirators. The conspiracy was translated into action. An unlawful assembly was formed. The members thereof attacked prof.Joseph with the intention to finish him off. His right palm was chopped off by the assailants. They caused hurt to the family members of Joseph. It was at 8.05 am on 4.7.2010 the incident. It was a terrorist act within the meaning of Sec.15 of the UA(P) Act. The conspirators and the assailants Crl.A.311/17 3 belonged to an organization called the Popular Front of India. The terror created by them caused communal disharmony and fear in the minds of general public.
4.The appellant stated his grounds for bail in his application filed before the court below. He reiterates those contentions in the appeal. The National Investigation Agency filed objections before the special court as well as this court against the grant of bail to the appellant.
5.Heard the learned counsel for the appellant. Heard the learned special public prosecutor for the National Investigation Agency.
6.There are a few admitted facts. The appellant was arraigned in the case as one of the conspirators. He was shown in the charge-sheet as accused no. 33. Cognizance was taken by the special court. The case was numbered S.C.1/2013 NIA. The case against the appellant and some others had to be split up as Crl.A.311/17 4 they could not be arrested. The case against them was re-filed as C.C.1/2015 NIA. The special court disposed of S.C.1/2013 NIA. Among the accused persons who faced trial, some were convicted and the others were acquitted. Some of the persons who were absconding surrendered before the special court. The appellant surrendered on 3.3.2016. Thereafter further investigation was conducted under Sec.173(8) of Cr.P.C. The appellant was given to police custody for three days. A supplementary police report has been filed after the further investigation. The appellant is in custody since his surrender on 3.3.2016.
7.The appellant seems to have been implicated not as an actual assailant who attacked prof.Joseph, but as a conspirator. The former therefore highlights that the persons who faced accusation of a similar nature were acquitted by the special court in S.C.1/2013 NIA. But acquittal of a few co-accused is not a sure ground for the appellant to get bail. Matters do not appear to be that simple as attempted to be simplified by the appellant. Crl.A.311/17 5 Further investigation was conducted after the disposal of S.C.1/2013 NIA. The prosecution contends that the appellant was the president of the Muvattupuzha Division Committee of the Popular Front of India. As such, according to the prosecution, the appellant participated in the recruitment of other accused persons for the terrorist act which took place on 4.7.2010. The submissions of the learned special public prosecutor in the above lines cannot be brushed aside. The appellant is not entitled to be enlarged on bail just because of the acquittal of a few accused persons in S.C.1/2013 NIA.
8.The appellant is, no doubt, in custody since 3.3.2016. He contended before the special court that since the further investigation was going on there was no possibility of he being tried in the near future. The further investigation has been completed and the supplementary police report has been filed. To our query as to when the trial could be commenced, the learned special Judge submitted a Crl.A.311/17 6 report that it could be commenced in December, 2017. December, 2017 is not far off. Therefore, one of the grounds urged before the special court ceased to exist by now.
9.The incident was on 4.7.2010. The appellant could not be arrested by the two investigating agencies who investigated the case. It cannot be disputed that the appellant was absconding. The special court dismissed his application holding that he who absconded for a long time could not be granted bail. There is no whisper in his memorandum of appeal that he did not abscond. He proved himself to be a person capable of hiding for a long period of six years. The possibility of him again fleeing from justice cannot be ruled out. We uphold the decision of the court below refusing bail.
10.The learned counsel for the appellant cited the decision of the apex court in Umarmia v. State of Gujarat [(2017) 2 SCC 731]. That was a case where the accused therein was suffering incarceration for more than 12 years and there was no likelihood of Crl.A.311/17 7 completion of the trial in the near future. The situation is not so in the present case. The trial of the appellant who is in custody since 3.3.2016 could be begun in December, 2017. The learned special public prosecutor submitted that the trial of the appellant would not be as lengthy as it was in S.C.1/2013 NIA, And, the appellant himself is responsible for the delay in his trial as he absconded for more than six years.
11.The appeal fails. The same is devoid of merit. It deserves only a dismissal.
12.Dismissed.
Sd/-
C.K.ABDUL REHIM Judge Sd/-
A.M.BABU Judge Mrcs/19.6 //True Copy// P.S.To Judge