Shafeer C vs Union Of India on 28 July, 2025

[Cites 17, Cited by 0]

Kerala High Court

Shafeer C vs Union Of India on 28 July, 2025

This criminal appeal is preferred impugning the order of the Special Court for the trial of NIA cases, Ernakulam, in Crl. M. P. No.80/2025 in R.C.No.1/2011/NIA. The appellant herein is accused No.55 in R.C.No.1/2011. By the impugned order, the learned Special Judge dismissed the bail application filed by the appellant/accused No.55.

Prosecution Case 2. The prosecution case in brief is that, on 04.07.2010, PFI/SDPI activists attacked Prof. T. J. Joseph of Newman's College, Thodupuzha, Idukki District, and chopped off his right palm and threw it into a nearby compound as part of executing their vengeance.

3. The case was initially taken up for investigation by the Kerala Police. Later, the National Investigating Agency (NIA) took over the investigation and laid the charge sheet. The Special Court tried the case and convicted some of the accused persons. However, the first accused in the above case, Savad @ Savadh Crl.Appeal No.765/2025 3 2025:KER:54700 @ Shajahan, absconded. The case against him was split up and refiled as S.C.No.3/2023/NIA. Later, Savad @ Savadh, the prime accused, was arrested from Beram, Mattannur, Kannur on 10.01.2024.

4. Further investigation of the case revealed that the appellant was an active cadre of the Popular Front of India (PFI), Kannur District. In pursuance of a larger conspiracy among the accused, who are members of the PFI, the appellant wilfully arranged shelter and other logistical support for the first accused at Chakkad and Mattanur in Kannur District, from 2020 until his arrest on 10.01.2024. Therefore, the prosecution alleges that the appellant has committed offences punishable under Sections 212 and 120B of the Indian Penal Code, and Section 19 of the Unlawful Activities (Prevention) Act, 1967 (for the sake of brevity, 'the UA(P) Act')."

5. The appellant was arrested on 23.08.2024. After the completion of further investigation, the NIA filed a supplementary charge sheet on 17.02.2025 against him. The specific allegation against accused No. 55, Shafeer, is that he had provided shelter to the first accused for about two years and also facilitated the meetings of accused No.1 with his parents and siblings.

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The Charge


      6.    Shafeer C., Accused No. 55, is a known SDPI/PFI cadre from Kannur

District and has criminal antecedents related to his involvement in PFI-related cases in the same district. He voluntarily harboured Savad @ Savadh @ Shajahan (Accused No. 1), knowing that the said accused had committed a terrorist act. With the intention of screening Savad @ Savadh, an absconding accused, from arrest, legal proceedings, and punishment, the appellant arranged shelter for him in a rented house owned by one Kunjimoosa at Chakkad, Kannur District, wherein Savad resided in a pseudonym as 'Shajahan' from 2020 to 2022. 7. He has also arranged shelter in a rented house owned by one Khadeeja at Mattannur, Kannur, from 17.12.2022 onwards. During that period, Accused No. 55, Shafeer, arranged a job for Savad @ Savadh as a carpenter at a shop in Narayanpara, Kannur District, and frequently visited him at both his residence and workplace. During 2021 and 2022, the appellant also arranged meetings between Savad @ Savadh and his parents and siblings near a mosque and crematorium in Koratty, Thrissur District, Kerala.

Crl.Appeal No.765/2025 5 2025:KER:54700 Submissions of the learned counsel for the appellant 8. The learned counsel for the appellant submitted that the order of the Special Court rejecting bail is legally unsustainable. The appellant was arrested on 23.08.2024. The learned counsel further submitted that there is nothing in the supplementary charge sheet to prima facie attract the offence under Section 19 of the UA(P) Act. It was argued that the appellant is innocent and has been falsely implicated in the case based on concocted and unreliable evidence. Moreover, the alleged offence of harbouring or concealing a terrorist, even if assumed to be true, does not amount to a grave offence warranting continued detention.

9. The learned counsel for the appellant further argued that the allegation of the investigating agency that huge funds were transacted through the account of the appellant is false and fabricated.

10. The learned counsel for the appellant further argued that two rounds of trial have already been completed by the Special Court. Considering the lengthy duration of the proceedings, the appellant is unduly burdened, primarily due to the bar under Section 43D(5) of the UA(P) Act. It was submitted that the case involves numerous witnesses, voluminous documents, and material objects.

Crl.Appeal No.765/2025 6 2025:KER:54700 In such circumstances, continued incarceration of the appellant without bail would amount to a denial of his fundamental rights. The learned counsel submitted that, considering the nature, gravity of the offence and period of detention, the appellant can be enlarged on bail with stringent conditions. 11. The learned counsel pointed out that further incarceration of the appellant is unwanted. Considering the numerous witnesses, voluminous documents, and material objects, the trial court would not be able to complete the trial in the near future. In order to fortify the contention, the learned counsel placed reliance on the judgments of the Apex Court in Union of India v. K.A Najeeb1. The learned counsel submitted that the prolonged custody of the appellant violates his right guaranteed under Part III of the Constitution of India. The learned counsel has also placed reliance on the dictum laid down in Javed Gulam Nabi Shaikh v. State of Maharashtra2, Jalaluddin Khan v. Union of India3, and Ankur Chaudhary v. State of Madhya Pradesh4. Submissions of the learned Deputy Solicitor General of India (DSGI) 12. Smt. O.M. Shalina, the learned Deputy Solicitor General of India 1 (2021) 3 SCC 713 2 2024 SCC OnLine SC 1693 3 2024 KHC 6431 4 2024 KHC 8248 Crl.Appeal No.765/2025 7 2025:KER:54700 (DSGI), submitted a detailed objection, vehemently opposing the contentions of the appellant.

13. The learned DSGI submitted that the appellant was charge sheeted for offences punishable under Section 212 of the IPC and Section 19 of the UA(P) Act. The aforesaid case is related to the notorious, brutal attack of Prof. T. J. Joseph at Muvattupuzha in Ernakulam district, Kerala, on 04.07.2010 by PFI/SDPI activists alleging blasphemy in the question paper prepared by Prof.T. J. Joseph in the internal examination conducted in Newman College, Thodupuzha. The allegation against the accused was that they chopped off the right palm of the victim after inflicting brutal injuries and that they had thrown the severed palm away to the nearby compound. She further submitted that the trial against 42 accused was completed, and the Special Court found 19 accused guilty of various offences, including those under the UA(P) Act.

14 The learned DSGI submitted that the investigation has revealed that the appellant had harboured the first accused, Savad @ Savadh, and had also arranged employment for him in Kannur while he was absconding, allegedly acting under the directions of PFI activists. The learned DSGI further submitted that there are sufficient materials on record which prima facie establish that the Crl.Appeal No.765/2025 8 2025:KER:54700 appellant harboured the first accused with full knowledge that he was the prime accused in a case involving a terrorist act, under the UA(P) Act. 15. The prosecution has produced sufficient materials, including witness statements and documents, which would establish the involvement of the appellant in harbouring the accused No.1. The statement of witnesses produced along with the charge sheet before the Hon'ble Special Court for the Trial of NIA cases such as CW-1 to 4, CW-12 and CW-13 will prove that the appellant harboured the first accused, Savad @ Savadh @ Shajahan. From the statements of CWs 5 to 11, it is revealed that the appellant had arranged a job for the absconding accused No.1 and frequently visited him. The statement of protected witness B would indicate that the meeting of Savad @ Savadh with his family was in the presence of the appellant. CWs-56 and 57 stated about the Look Out Notice issued against accused No.1, Savad @ Savadh, pasted at Mattanoor Police Station limits and Iritty Police Station limits in Kannur District, Kerala, respectively. The statements of witnesses, the CDRs, and other documents point out the connection between the appellant and the Savad @ Savadh, who had absconded for more than 14 years after the alleged commission of a terrorist act. It is submitted that the photograph of Savad @ Savadh @ Shajahan was circulated through Look Out Circulars as well as through the media.

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      16.   The learned DSGI further submitted that the bank account

statements of the appellant would reveal dubious financial transactions during that period. The bank account statements [D24 and D25] would further show that substantial amounts were deposited into the account of the appellant during the relevant period.

17. The learned DSGI further submitted that the investigation would reveal that the appellant, Shafeer, is an active cadre of PFI and involved in various criminal cases, including a murder case and agitations of PFI, a prohibited organization. He is a henchman of PFI, having strong connections across, both at personal level as well as through the international wing of PFI - India Fraternity Forum (IFF). The learned DSGI would further point out that if the appellant is released on bail, there is every chance that he would tamper with evidence by threatening the witnesses and is likely to abscond. The learned DSGI has also pointed out the criminal background and antecedents of the appellant. The appellant has been involved in four other cases:

a) Accused number 1 in Crime No. 1247/2012 of Iritty Police Station for offences under sections 447, 308, 353 r/w 34 IPC and 2(1C) r/w 25 of Arms Act, (D-19).

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b) Accused number 10 in Crime No. 48/2018 of Peravur Police Station for offences under sections 143, 147, 148, 120B, 109, 341, 302, 201 r/w 149 IPC and Section 4 r/w 25(1B) and (b) of Arms Act (D-20).

c) Accused number 14 in Crime No. 316/2022 of Iritty Police Station for offences under sections 143, 145, 283 r/w 149 IPC (D-21).

d) Accused number 5 in Crime No. 1216/2015 of Iritty Police Station for offences under sections 143, 147, 148, 323, 324, 326, 308, 506(ii) r/w 149 IPC (D-22).

18. The learned DSGI submitted that there are prima facie and reasonable grounds to believe that the appellant has committed the offence. Since the nature and gravity of the charge are so severe that it affect the sovereignty and integrity of the nation, the appellant shall not be released on bail. The Special Court has rightly placed reliance on Gurwinder Singh v. State of Punjab5. The learned DSGI has placed reliance on the judgment in Saheer v. National Investigation Agency [Crl.Appeal No.5272/2024 dated 13.12.2024].





5
    2024 KHC 6062
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Analysis


     19.   We have carefully considered the submissions advanced by the

learned counsel for the appellant and the learned DSGI. 20. In the case on hand, the appellant has been in custody for the last 10 months and 16 days. He was arrested on 23.08.2024. The allegation against the appellant is that he is an active cadre of PFI/SDPI and that he harboured accused No.1, Savad @ Shajahan, at Mattanoor in Kannur district. The appellant had arranged a job for the prime accused in the hand-chopping case of Prof.T. J. Joseph of Newman's College, Thodupuzha, Idukki District. 21. The offences charged against the appellant are under Section 212 of the IPC and Section 19 of the UA(P) Act. Section 212, harbouring under the Indian Penal Code, is a bailable offence, and the punishment prescribed for the said offence is three years. However, under Section 19 of the UA(P) Act, if the offence of harbouring a terrorist is proved, the punishment prescribed is imprisonment for a term not less than three years, which may extend to imprisonment for life.

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   22.       In Najeeb's case (supra), paragraphs 15, 17, 18, and 20 read thus:

"15. The facts of the instant case are more egregious than these two above - cited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27/11/2020. Still further, two opportunities were given to the appellant - NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co - accused who have been convicted, none have been given a sentence of more than eight years' rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two - third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice.

16. .....................

17. As regard to the judgment in NIA v. Zahoor Ahmad Shah Watali (supra), cited by learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had re - appreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant rejection of bail. The High Court had practically conducted a mini - trial and determined admissibility of certain evidences, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under S.43 - D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail.

18. It is thus clear to us that the presence of statutory restrictions like S.43 - D(5) of UA(P)A per - se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statute as well Crl.Appeal No.765/2025 13 2025:KER:54700 as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like S.43 - D (5) of UA(P)A being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

19....................... 20. Yet another reason which persuades us to enlarge the Respondent on bail is that S.43 - D(5) of the UA(P)A is comparatively less stringent than S.37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such pre - condition under the UA(P)A. Instead, S.43 - D(5) of UA(P)A merely provides another possible ground for the competent Court to refuse bail, in addition to the well - settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc."

23. In Najeeb's case (supra), the respondent was a PFI worker who was charged under various sections of the Indian Penal Code and UA(P) Act. The allegation against the respondent in that case was that he had attacked a Professor and hurled a bomb at him. The specific allegation against the Crl.Appeal No.765/2025 14 2025:KER:54700 respondent was that he was a conspirator in the crime. He was in jail for more than five years. The Apex Court held that the statutory restrictions like 43-D(5) of UA(P) Act would not oust the ability of the constitutional Court to grant bail on the ground of violation of Part III of the Constitution, while holding that the accused has the right to a speedy trial and if the same is not possible, Courts are obligated to enlarge him on bail.

24. In Javed Gulam Nabi's case (supra), the Court reiterated the same principle. In this case, the appellant/accused was an under-trial prisoner for about four years without any charges being framed. Paragraphs 7 and 9 of the said judgment read thus:

"7. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. Over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.

8. ...............................

9. The same principle has been reiterated by this Court in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the object of Crl.Appeal No.765/2025 15 2025:KER:54700 bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment."

25. In Jalaluddin Khan's case (supra), the appellant was charged with UA(P) Act and various offences under the Indian Penal Code and was in custody for a period of two years and one month. The relevant paragraphs are extracted hereunder:

"19. Therefore, on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UA(P)A is prima facie true. We have taken the charge sheet and the statement of witness Z as they are without conducting a mini - trial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UA(P)A was prima facie true. No antecedents of the appellant have been brought on record. 20. The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant. 21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a Crl.Appeal No.765/2025 16 2025:KER:54700 grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution."

26. In Harpreet Singh Talwar v. State of Gujarat6 it was held that prolonged incarceration in jail, by itself, is not a ground for the grant of bail. Each case is to be evaluated independently in the light of specific facts and risks associated with each case. The learned DSGI referred to paragraphs 23 and 24 of the case, which read as under:

"23. It may merit to discuss at the outset, the the scope and application of Section 43D(5) of UAPA whereunder the court, at the stage of bail is not required to meticulously examine the admissibility and reliability of evidence. The degree of satisfaction required under this provision has to be lower than the proof beyond reasonable doubt, but must still be rooted in material that is not inherently improbable or ex facie unreliable.





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    MANU/SC/0675/2025
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24. The rigour of Section 43D(5) of the UAPA would, however, in an appropriate case yield to the overarching mandate of Article 21 of the Constitution, especially where the trial is inordinately delayed or where the incarceration becomes punitive. However, such relaxation cannot possibly be automatic and must be evaluated in light of the specific facts and risks associated with each case, as has been previously clarified."

27. We have carefully considered the charge, statement of witnesses, and the documents relied on by the Investigating agency. 28. In K. A Najeeb's case, Javed Gulam Nabi Shaikh's case, and Jalaluddin Khan's case (supra), the Apex Court observed that the embargo under Section 43D(5) of UA(P) Act would not curtail the powers of the Constitutional Courts to grant bail where there is a violation of rights enshrined under Article 21 of the Constitution of India. The learned counsel submits that, if a speedy trial is not possible, it is obligatory on the Constitutional Court to release the accused on bail.

29. The materials relied on by the prosecution would indicate that the appellant has harboured the prime accused in a terrorist case, knowing well the nature and quality of the act. He has extended all logistic support to accused No.1 so as to screen the offender from legal punishment. The incident of hand Crl.Appeal No.765/2025 18 2025:KER:54700 chopping of Prof. T.J.Joseph was on 04.07.2010. Prof. T. J. Joseph allegedly included blasphemous content in a question paper prepared by him for an internal examination of Newman's College, Thodupuzha. It appears that in R.C.No.1/2011, two trials in connection with this case were already concluded, and 19 accused persons have been convicted. The arrest and trial of the prime accused were delayed for several years due to the involvement of the appellant herein. In order to prove the supplementary charge against the appellant, the prosecution relied on the statements of 61 witnesses and 33 documents. It appears that there is a likelihood of the trial being completed in the near future, as there are only 61 witnesses cited in the supplementary charge sheet.

30. The charge against the appellant is that he is an active cadre of the PFI and voluntarily harboured Accused No. 1, Savad @ Shajahan, knowingly with the intention to screen him from arrest and legal punishment. It appears that he arranged shelter at a rented house owned by one Kunjimoosa at Chakkad, Kannur District, where accused No. 1 stayed under the pseudo name 'Shajahan.' Further, he arranged a job for the prime accused, Savad, as a carpenter in a shop at Narayanpara, Kannur, and frequently visited him at both his residence and workplace. It is also alleged that the appellant arranged meetings between Savad @ Savadh and his parents and siblings near a mosque in Koratty, Thrissur District, Crl.Appeal No.765/2025 19 2025:KER:54700 Kerala.

31. CW1, Savad, stated to the NIA that accused No. 1 stayed in his ancestral house from 2020 to 2022, and that the appellant frequently visited accused No. 1. CW4 stated that accused No. 1, Savad, stayed in CW1's ancestral house at Chakkad, and that this arrangement was made by the appellant (Shafeer). CW5, Abdul Nasar, stated that he is the owner of the building where CW6, Nasar, runs a carpentry shop, and that accused No. 1, Savad, had worked there as a carpenter 32. CW6 (Nasar) stated that the appellant (Shafeer) used to visit the shop to meet accused No.1, Savad. Likewise, CWs. 7 to 11 stated that accused No.1 worked as a Carpenter in the shop of PW6, and appellant used to visit accused No.1. CWs. 12 and 13 stated that the accused No.1 was arrested from the house of Khadeeja, which was leased to accused No.1 as per the request of the appellant. 33. On perusal of the chargesheet, the statements of witnesses, and the documents relied upon by the prosecution, we concur with the view taken by the learned Special Judge that there are reasonable grounds for believing that the allegation against the accused is prima facie true. It is further noted that the Crl.Appeal No.765/2025 20 2025:KER:54700 appellant is involved in four other criminal cases, which are of a serious nature. However, in the case on hand, the appellant has been in judicial custody for the last 10 months and 16 days, and there is a likelihood of completion of the trial in the near future.

34. The records would reveal that the appellant herein is involved in four other crimes. Considering the grave and serious nature of the offences alleged against the appellant, the criminal antecedents of the appellant, and the facts and circumstances of the case, we are not inclined to grant bail to the appellant.

Therefore, we do not find any good reasons to interfere with the findings of the Special Court. The Criminal Appeal stands dismissed.

                                          

                                               Sd/-

                                     RAJA VIJAYARAGHAVAN V,
                                                   JUDGE




                                                      Sd/-
                                              K.V. JAYAKUMAR,
                                                    JUDGE
 Crl.Appeal No.765/2025          21               2025:KER:54700


Sbna/

                   APPENDIX OF CRL.A 765/2025


PETITIONER ANNEXURES

Annexure A1            THE TRUE COPY OF THE RELEVANT PAGES OF THE
                       SUPPLEMENTARY    CHARGE     SHEET    DATED
                       17.02.2025 IN SC NO.2/2023 OF SPECIAL
                       COURT FOR TRIAL OF NIA CASES, KERALA AT
                       ERNAKULAM

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