Karnataka High Court
Syed Ali vs State By Vyalikaval P S on 21 July, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 363/2022
BETWEEN :
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Syed Ali
S/o Syed Mohammed
Aged about 33 years
R/at No.86, Satta Pelliyar street
Kalladai Kurchi, Behind CSI Church
Melapudikudi, Tirunelveli
Tamilnadu - 627 356. ...APPELLANT
(By Sri. Mohammed Tahir, Advocate)
AND :
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State by Vyalikaval P S
Rep by Spl. Public Prosecutor
High Court Complex
Opp. Vidhana Soudha
Bangalore - 560 001.
(NIA cases). ... RESPONDENT
(By Sri. V.S. Hegde, SPP-II)
2
This Criminal Appeal is filed under Section 21 of N.I.A.
Act praying to set aside the impugned order of rejection of
bail at Annexure-A, consequently enlarge the
appellant/accused No. 23 on bail in S.C. No. 1347/2016
c/w. S.C. No. 381/2015 for the alleged offences registered
by the respondent Police under sections 307, 332, 435 of
IPC and Sections 3, 4, 5, 6 of Indian Explosives Substances
Act, Sections 3 and 4 of Prevention of Damage to Public
Property Act, pending on the file of the XLIX Additional and
Sessions Judge (Special Court for trial of NIA cases), (CCH-
50), Bengaluru by considering the Apex Court Judgment
which is similar to that of facts and circumstances of this
case.
This Criminal Appeal having been heard and reserved
for orders, this day, Shivashankar Amarannavar J,
delivered the following;
JUDGMENT
This appeal is filed by appellant - accused No. 23 challenging the order dated 21.09.2021 passed in S.C. No. 381/2015 clubbed with S.C. No. 1347/2016 on the file of XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) Bengaluru rejecting the bail application filed under Section 439 Cr.P.C.
2. Brief facts of the case are that the accused persons involved in this case are the activist of the forbidden 3 organisation called AL-UMMA which is banned organization under the Unlawful Activities (Prevention) Act, (for short hereinafter referred to as the UAPA) by the Government of Tamil Nadu. The said organization is an Islamic Fundamental organization which advocates liberalization of India by converting the same as an Islamic land by declaring religious war styled as Jihad against India. Further, by forced conversion and by violation. It is alleged that in order to carryout Jihadi activities, accused No. 3, accused No. 8, accused No. 9 and accused No. 10 hatched criminal conspiracy with accused Nos. 2, 5, 6, 7, 11, 12, 13, 14, 16 and 18 for conducting various blasts and thereby to wage war against the India. It is further alleged that in furtherance of the said conspiracy, several meetings were held by the accused persons between October 2012 and April 2013 at Coimbatore, in Tamil Nadu and hatched a plan to cause a bomb blast, to take revenge against ruling B.J.P. Government in the Karnataka. It is further stated that in 4 furtherance of the said conspiracy, the accused secured explosive materials and caused blast at B.J.P. Office, at Malleshwaram, Bengaluru, on 17.04.2013 at 10.20 am. In the blast, the KSRP Van bearing No. KA-01-G-8473 suffered damage and 12 KSRP Police personnel sustained injuries and six civilians also sustained multiple bleeding injuries. The motor cycle bearing No. TN-22-R-3739 in which the bomb was planted, also crumbled into pieces.
3. In this regard, Sri. C.R. Nanjappa, the PSI of Vyalikaval Police Station filed a complaint and based on the same, the SHO of said Police Station registered the same in Crime No. 118/2013 for the offences punishable under Sections 3, 4, 5 and 6 of Explosive Substances Act, 1908, Sections 121, 121A, 120B, 123, 201, 435, 307 and 332 of the IPC, Sections 3 and 4 of Prevention of Damage to Public Property Act, and further, under Sections 3, 10, 11, 13, 16, 17, 18, 19 and 20 of Unlawful Activities (Prevention) Act, 1967 against the unknown persons and issued FIR. 5 Initially, the charge-sheet was filed against accused Nos. 2, 3, 5 to 7 and accused Nos. 11 to 14, showing accused Nos. 8 to 10, 16 and 18 as absconding. This accused No. 23 and accused Nos. 16 and 22 were secured in split-up case bearing C.C. No. 4885/2015 on the file of learned 1st ACMM Court, Bengaluru, and case against them was committed as per the order dated 17.10.2016.
4. The appellant - accused No. 23 filed bail application under Section 439 Cr.P.C. before the trial/Special Court contending that this accused No. 23 was arrested on 22.03.2016 at Poonamalee Trunk Road, Karaiyan Chavadi Bus Stand and he was arrayed as accused No. 23 in this case as per the supplementary charge-sheet filed on 18.06.2016.
5. This accused No. 23 filed bail application under Section 439 Cr.P.C. contending that he is innocent of the alleged offence and that he has got valid and tenable 6 defence. He has been falsely implicated in this case without any iota of truth. The allegations put forth against this accused is baseless as neither this accused played any role in the alleged offences nor extended any assistance to the alleged offences. There is no material to establish that this accused has directly involved or has assisted the other accused for any sort of criminal act involved in this case. The accused never facilitated the meeting between accused Nos. 16 and 21, who consequently, procured explosive substances from accused No. 21. The voluntary statement of accused No. 21 revealed that he is familiar and acquainted with accused No. 16 prior to commission of the said meeting and this accused has no role whatsoever, in connecting with accused Nos. 16 and 21. The accused No. 23 has been falsely implicated with accused No. 21 to grandiose entire incident for the political benefit of one class. The respondent Police have not gathered any evidence against this accused. The witnesses to the spot 7 mahazar dated 29.03.2016, conducted at Tamil Nadu regarding the alleged procurement of explosives and passed on the accused herein are belonged to Bengaluru locality and they are star witnesses. Even as per the allegation of the NIA, the accused has no direct role in carrying out the blast involved in this case and he is not a member of CTM Trust nor acquainted with any other accused in this case. The sanction obtained in this case is not in accordance with the requirement of Section 45(2) of UAPA, which negate the entire proceedings. Accused No. 23 is ready to abide by any reasonable conditions imposed by this Court and offer surety to the satisfaction of this Court. The trial Court after giving an opportunity to the Special Public Prosecutor, heard the matter and rejected the said application. Hence, appellant - accused No. 23 filed the present appeal seeking setting aside the said order and grant of bail.
6. In the memorandum of appeal it is stated that the appellant was arrested in the year 2016 and since his arrest 8 he has been languishing in jail for nearly 6 years. He has spent considerable time in incarceration just on the basis of lame and baseless allegations put forth against him. The appellant - accused No. 23 is innocent of the alleged offence leveled against him and he has got a valid and tenable defence. More over he has been falsely implicated without an iota of evidence. The allegations put forth by the respondent agency is baseless as the appellant - accused No. 23 has neither played any role in the alleged offence nor extended any assistance to the alleged offence as alleged by the respondent - agency. The allegation against him is that he has facilitated the meeting between accused No. 16 and 21, who consequently procured explosive substances from accused No. 21, whereas it is evident from the voluntary statement of accused No. 21 that he is familiar and acquainted with accused No. 16 prior to the said meeting. The appellant - accused No. 23 has no direct role in execution of the said blast. The sanction in this case 9 according to the mandate of Section 45(2) of UAPA which negate the entire proceedings under the UAPA. The appellant - accused No. 23 has sought liberty to urge upon the additional grounds at the time of arguments.
7. Heard the arguments of Sri. Mohammed Tahir, learned counsel for the appellant - accused No. 23 and Sri. V.S. Hegde, learned SPP-II appearing for the respondent and perused the records.
8. Learned counsel appearing for the appellant - accused No. 23 contended that the offence under the UAPA are not invoked against the appellant - accused No. 23. They are invoked against the other accused. Accused No. 22 pleaded guilty and 7 years imprisonment has been awarded. But, accused No. 23 who is appellant herein is in judicial custody since 6 years 4 months and therefore on that ground he is entitled for grant of bail. There are 297 witnesses and out of them only 4 witnesses have been 10 examined and the trial is not concluded. The appellant - accused No. 23 is from Tamilnadu and the witnesses are from Karnataka State and therefore there is no question of tampering the witnesses.
9. Per contra, learned SPP-II appearing for the respondent - State in his arguments contended that the earlier bail application filed by the appellant - accused No. 23 has been rejected and this is a successive bail application and no new grounds are made out in the present application. The appellant - accused No. 23 is a member of AL-UMMA and it is at Sl.No. 9 of the schedule of UAPA and it is a terrorist organization. It is his further contention that the bail application filed by accused No. 18 has been rejected by the Special Court and the appeal preferred challenging the said order has been dismissed by this Court in Crl.A. No. 1444/2021. It is his further submission that the trial Court considering all the charge sheet material has rightly rejected the bail application of 11 the appellant - accused No. 23 and there are no grounds to interfere with the said order.
10. In reply to the said arguments the learned counsel for the appellant - accused No. 23 has submitted that accused Nos. 21, 22 and 23 are charged with offence under IPC, offences under the Indian Explosives Substances Act, offences under the UAP Act are not charged against accused Nos. 21, 22 and 23. It is his further submission that organization at Sl.No. 9 of Schedule of UAPA is some other organization and not AL-UMMA.
11. Having regard to the arguments of the learned counsel for the appellant - accused No. 23 and learned SPP-II appearing for the respondent - State and perusing the material on record, the point that arises for our consideration in this appeal is :
12Whether the appellant - accused No. 23
has made out a ground to set aside the impugned order and to enlarge him on bail?
12. On perusal of the impugned order it is clear that the said order came to be passed as if the offences alleged against the appellant - accused No. 23 are under the provisions of the UAPA. The trial Court taking into consideration the decision in the case of NATIONAL INVESTIGATION AGENCY Vs. ZAHOOR AHMAD SHAH WATALI reported in 2019 (5) SCC 1 and consideration the provisions contained in Section 43-D(5) of UAPA has held that the accusations leveled against the appellant - accused No. 23 is prima facie true and therefore he is not entitled for grant of bail.
13. The learned counsel for the appellant - accused No. 23 contended that the appellant - accused No. 23 is not charged with offence under UAPA. The learned counsel for 13 the appellant - accused No. 23 has facilitated photocopy of the charge framed by the trial Court in S.C. No. 1347/2016 clubbed with S.C. No. 381/2015. The charge is framed against accused Nos. 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 18, 21, 22 and 23. On perusal of the said charge it is seen that the charge framed against appellant - accused No. 23 are for the offences under Section 121-A read with Section 120-B of IPC, Sections 332, 333, 307, 435 of IPC and Sections 3 and 5 of Explosive Substance Act, 1908 and Section 4 of Prevention of Damage to Public Property Act, 1981. The charges are framed against accused Nos. 2, 3, 5 to 14, 16 and 18 for offences under the UAPA. On perusal of the said charge framed on 19.09.2019 no offence under the UAPA are charged against the appellant - accused No.
23. The learned SPP-II has not submitted anything regarding whether any additional charge has been framed by the Court in the said case against the appellant - accused No. 23 for the offence under the UAPA. The Special 14 Court in the impugned order has considered the bail application of the appellant - accused No. 23 considering the case as charge framed for offence under the UAPA against the appellant - accused No. 23 and also taking into consideration the restrictions placed in grant of bail under Section 43-D(5) of UAPA. For considering whether the appellant - accused No. 23 is entitled for grant of bail considering the accusations/charges framed against him for the offence under the IPC, Explosive Substance Act and Prevention of Damage to Public Property Act, the Court has to go through the charge sheet materials. The charge sheet materials are not placed before this Court either by the learned counsel for the appellant - accused No. 23 or by the SPP-II for the respondent - State. More so if an order is passed by this Court either granting or rejecting the bail it will affect the right of the parties for preferring an appeal under the relevant provision. Therefore, we restrain ourselves from passing an order on the bail application of 15 the appellant - accused No. 23 for the said reasons and deem it appropriate to set aside the order and to remand the matter to the trial/Special Court for fresh consideration of the bail application filed by the appellant - accused No. 23.
14. For the reasons stated above, we proceed to pass the following;
ORDER I. Appeal is allowed in part.
II. The impugned order dated 21.09.2021 passed in S.C. No. 381/2015 clubbed with S.C. No. 1347/2016 on the file of XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) Bengaluru is hereby set aside.
III. The matter is remanded to the trial/Special Court for fresh consideration of the bail application in the light of the observations made in the order.
16IV. The trial/Special Court shall dispose of the bail application of the appellant - accused No. 23 within a period of three weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE.
Sd/-
JUDGE.
LRS.