Karnataka High Court
Ismail Shafi K vs State By National Investigation Agency on 29 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.A No.1094 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1094 OF 2023 (21(NIA))
BETWEEN:
1. Ismail Shafi K,
S/o. Adam Kunhi K.,
Aged about 39 years,
R/at Ground Floor,
Shafi Apartment,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574212.
2. K. Mahammad Iqbal
@ Iqbal Bellare,
Aged about 36 years,
S/o. Adam Kunhi,
R/at 1-53, Kunhi Gudde,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574 212.
3. Shaheed M.,
S/o. Mohidin U.,
Aged about 40 years,
R/at Kuni Gudde,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574212.
...Appellants
(By Sri. Mohammed Tahir, Advocate)
CRL.A No.1094 of 2023
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AND:
State by National Investigation Agency
Ministry of Home Affairs GOI,
Rep by Spl. Public Prosecutor
Office at High Court Complex,
Opp. Vidhana Soudha,
Bangalore - 560001.
...Respondent
(By Sri. Prasanna Kumar P., Special Public Prosecutor)
****
This Criminal Appeal is filed under Section 21(4) of the
National Investigation Agency Act, 2008, praying to set aside
the impugned order of rejection of bail at Annexure A,
appreciate the bail application filed under Section 439 of
Cr.P.C. at Annexure B and consequently enlarge the
appellants/accused No.9, accused No.10 and accused No.11 on
bail in Special C.C.No.123/2023 for the alleged offences
registered by the respondent Agency under Section 302, 153-A,
120B, 212 read with Section 34 of IPC, Sections 16, 18, 18-A,
19 and 20 of U.A.(P) Act and Section 25-1A of Arms Act,
pending on the file of the 49th Additional City Civil and Sessions
Judge, Special Court for Trial of NIA Cases CCH-50 at
Bangalore in the interest of justice and equity.
This Criminal Appeal having been heard through physical
hearing/video conferencing hearing and reserved on
31-08-2023, coming on for pronouncement of judgment, this
day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the
following :
CRL.A No.1094 of 2023
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JUDGMENT
The appellants herein who are accused No.9, accused No.10 and accused No.11 respectively before the learned XLIX Additional City Civil and Sessions Judge (Special Court for Trial of NIA Cases) (CCH-50) at Bengaluru, (hereinafter for brevity referred to as "the Special Court"), in Special C.C.No.123/2023, have filed the present appeal, challenging the order of rejection of their bail application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C.") dated 29-04-2023, for the offences punishable under Sections 302, 153A, 120B, 212 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC"), Sections 16, 18, 18A and 20 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter for brevity referred to as "the UAP Act") and Section 25(1A) of the Arms Act, 1959 (hereinafter for brevity referred to as "the Arms Act").
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2. The summary of the case of the prosecution in the Special Court was that, the first informant by name Sri. Madhu Kumar was working as a Cleaner in Akshaya Fresh Chicken Farm Shop at Mastikatte area of Bellare Village, Sullia Taluk. The deceased Sri. Praveen Nettaru was the owner of the said Shop. On the date 26-07-2022, at about 8:30 p.m., the deceased Sri. Praveen Nettaru, after closing his business was about to go to his home on his motor cycle. At that time, the first informant went inside the Shop to bring the rain coat and he heard shouting noise outside the Shop. The first informant immediately rushed out of the shop and saw the deceased Praveen Nettaru lying on the road about 50 feet away from his Motor cycle. The first informant also saw three unknown assailants fleeing away on a Splendor Motor Cycle towards Puttur Town along with weapons in their hands. Sri. Praveen Nettaru had sustained injuries on his head and neck area. He was shifted to Pragathi Hospital in Puttur Town in an Ambulance. The Doctors in the Hospital, after examining the injured Praveen Nettaru, CRL.A No.1094 of 2023 -5- declared that he was brought dead. In that regard, the first informant lodged a written first information (complaint) with Bellare Police. The said complaint was registered in FIR No.63/2022 on the date 27-07-2022.
During the course of investigation of the case, the Karnataka State Police invoked Sections 16 and 18 of the UAP Act, besides Section 120B of the IPC against the accused persons alleging that they have killed Praveen Nettaru who was District Executive Committee Member of Bharatiya Janatha Party Yuva Morcha, Dakshina Kannada District, with an intention to strike terror among the people in the locality.
The Central Government received the information regarding the registration of FIR No.63/2022 at Bellare Police Station, Dakshina Kannada District, Karnataka State, and opined that scheduled offences under the National Investigation Agency Act, 2008 (hereinafter for brevity referred to as "the NIA Act") have been committed and considering the gravity of the offences and their inter-state ramifications, the CRL.A No.1094 of 2023 -6- Government of India, Ministry of Home Affairs, CTCR Division, North Block, New Delhi, vide MHA Order No.11011/68/2022/NIA dated 03-08-2022 issued order as per the provisions of sub-section (4) of Section 6 read with Section 8 of the NIA Act and directed the National Investigation Agency, Bengaluru (hereinafter for brevity referred to as "the NIA") to take up the investigation of the case.
Accordingly, the NIA took up the investigation of FIR No.63/2022 of Bellare Police Station, by re-registering it as RC-36/2022/NIA/DLI on the date 04-08-2022 under Sections 120B, 302 read with Section 34 of the IPC and under Sections 16 and 18 of the UAP Act.
During the course of investigation, the NIA came to know that the act of killing of Praveen Nettaru was in retaliation of the killing of one Sri. Masood in an assault at Kalanja village, eight kilometers away from Bellare village on the date 19-07-2022. The NIA arrested fourteen (14) accused persons and filed a preliminary charge sheet against the said fourteen (14) accused and sixteen (16) CRL.A No.1094 of 2023 -7- absconding accused persons before the Special Court, for the offences punishable under Sections 302, 153A, 120B, 212 read with Section 34 of the IPC, under Sections 16, 18, 18A, 19 and 20 of the UAP Act and under Section 25 (1A) of the Arms Act.
During the course of further investigation, the accused No.20 was apprehended and a supplementary charge sheet was filed as against the said accused No.20 and also accused No.21. The further investigation in the matter is still under progress.
The Trial Court has taken cognizance of the aforesaid offences and registered a case as against the accused persons.
3. The present appellants, who are accused No.9, accused No.10 and accused No.11 respectively preferred an application seeking the relief of regular bail under Section 439 of the Cr.P.C., before the Special Court, where the matter is pending in Special C.C.No.123/2023. CRL.A No.1094 of 2023 -8-
4. After hearing the learned counsels from both side, the bail application filed by the appellants came to be rejected vide the impugned order of the Special Court dated 29-04-2023. Aggrieved by the same, the applicants in the aforesaid bail application i.e. accused No.9, accused No.10 and accused No.11 have filed the present appeal under Section 21 (4) of the NIA Act.
5. The appellants (accused No.9, accused No.10 and accused No.11), represented by the learned counsel and the respondent - NIA represented by the learned Special Public Prosecutor are physically appearing before the Court.
6. Heard the arguments from the learned Counsel for the appellants (accused Nos.9 to 11) and the learned Special Public Prosecutor for the respondent - NIA. Perused the materials placed before this Court including the impugned order passed by the Special Court.
7. In their memorandum of appeal, the appellants have taken a contention that the allegations made against CRL.A No.1094 of 2023 -9- them are baseless and lame. They are innocent and have been falsely implicated in the matter. At the initial stage of investigation conducted by the State Police, the appellants' names were not figured out, however, the NIA has created a false story and conducted subjective investigation dragging the appellants. They have further contended that the NIA has falsely alleged that the appellant No.1 and appellant No.2 gave provocative speeches at the funeral of the deceased Masood on the date 22-07-2022 stating that they would take revenge for the killing of Masood by killing prominent Hindu community leaders through their Organisation. The appellants (accused Nos. 9 to 11) contended that they are State leaders of SDPI Party and have no connection whatsoever with other Organisations.
It is further contended by the appellants that from the narration of the charge sheet it appears that it was revenge killing of one innocent Muslim boy, so the motive of murder was very definite and clear. Thus, mere invoking the provisions of the UAP Act for the alleged CRL.A No.1094 of 2023
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offences will not convert a criminal incident into a terror incident.
The appellants further contended that the appellant No.1 (accused No.9) and appellant No.2 (accused No.10) attended the funeral of Masood on the date 22-07-2022 as normal Muslims and accused No.9 addressed the gathering, wherein, by grief, he stated that, the almighty would take revenge of killing of innocent Masood who was killed by communal forces, however, the NIA, without apprehending the real culprits and the conspirators have apprehended the appellants who are innocent and attended the funeral and expressed their grief in pain.
It is also contended in their memorandum of appeal by the appellants that, apart from the statement of approver witnesses, the prosecution has also relied upon the statements of the protected witness 'A'. From the narration, it is evident that this witness is an accomplice and partner-in-crime, such kind of witnesses can be examined only under Sections 305 and 306 of the Cr.P.C., but not under Sections 161 and 164 of the Cr.P.C. CRL.A No.1094 of 2023
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Submitting that they would abide by any reasonable condition that may be imposed by this Court and offer surety to the satisfaction of this Court, the appellants have prayed for their enlargement on bail by allowing the present appeal.
8. The respondent - NIA has filed its Statement of Objections, denying the allegations made by the appellants in their memorandum of appeal and contending that it is after considering all the points canvassed by the appellants even in the Special Court also, the said Court has passed the impugned order and since a prima facie true case is made out by the respondent- NIA, the Special Court has rightly rejected the application for bail filed by the appellants, as such, the impugned order does not warrant any interference at the hands of this Court.
9. Learned counsel for the appellants (accused Nos.9 to 11) in his argument reiterated the summary of the grounds raised by the appellants in their memorandum of appeal. He further submitted that for denying the relief of bail to an applicant/accused under Section 43D(5) of the CRL.A No.1094 of 2023
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UAP Act, for the offences punishable under the provisions of the said Act, a perusal of the case diary or the report made under Section 173 of the Cr.P.C. is a must, which lead the Court to an opinion that there are reasonable grounds for believing that the accusation against the applicant/accused is prima-facie true.
Learned counsel for the appellants further submitted that the First Information Report (FIR) was filed against three unknown accused only who were said to be the residents of Sullia Taluk, however, the present applicants were included/involved based upon the alleged voluntary statement of an accused by name Mohammed Jabir but the said Mohammed Jabir has stated before the Court that he was tortured to give his alleged voluntary statement. Thus, the very inclusion of the present appellants in the case is without any basis and based upon forcible extraction of voluntary statement by the co-accused Mohammed Jabir.
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In support of his arguments, the learned counsel relied upon several judgments which would be referred to at the appropriate places hereafterwards.
10. Learned Special Public Prosecutor for the respondent - NIA in his argument submitted that, the charge sheet clearly mentions the role of the present appellants who are accused No.9, accused No.10 and accused No.11, they being the members of a 'Service Team' which in fact undertakes the work of identifying, keeping a track and killing the identified Hindu people and thus has shown the involvement of the present appellants. The provocation committed by the present appellants has been clearly narrated by the protected witnesses. It was the accused No.10 and accused No.11 who are the two among the present appellants (accused Nos.9 to 11) who prepared the sketch with their own hand and prepared a sketch for killing the deceased Praveen Nettaru. The expert's opinion also shows that the sketch was prepared by accused No.11 with his own handwriting. CRL.A No.1094 of 2023
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Learned Special Public Prosecutor for the respondent
- NIA further submitted that the very act of the accused Mohammed Jabir retracting from his previous statement given under Section 164 of the Cr.P.C. before the learned Magistrate shows that there is deep routed conspiracy in the murder of Praveen Nettaru, in which, the present appellants had played an active role.
Learned Special Public Prosecutor also submitted that to carryout a terrorist act as defined under the provisions of the UAP Act, it is not necessary that there must be a notified terrorist Organisation, even a gang or an association of persons can also carry out such terrorist activities.
Learned Special Public Prosecutor further submitted that, in the instant case, the present appellants have hatched a conspiracy to kill the deceased Praveen Nettaru and have advocated and abetted the commission of murder of Praveen Nettaru and provoked the people to revolt against a particular community and to eliminate CRL.A No.1094 of 2023
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prominent members therein and thus have threatened the unity, integrity and security of the Nation.
Learned Special Public Prosecutor further submitted that the blood stains found on the clothes, vehicles of the accused and the weapons used by them in its DNA test matches with the DNA of the deceased Praveen Nettaru. Thus, a prima facie true case has been made out by the prosecution, considering which, the bail application of the appellants was rejected by the Special Court, as such, the impugned order does not warrant any interference at the hands of this Court.
The learned Special Public Prosecutor also relied upon several of the judgments in support of his argument which would be discussed at the appropriate places hereafterwards.
11. After hearing the learned counsels for the parties and after going through the entire material placed before the Court, the points that arise for our consideration in this appeal are:
CRL.A No.1094 of 2023
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[i] Whether the present appellants who are accused No.9, accused No.10 and accused No.11 in Special C.C.No.123/2023 for the alleged offences punishable under Sections 302, 153A, 120B and 212 read with Section 34 of the Indian Penal Code,1860, under Sections 16, 18, 18A, 19 and 20 of the UAP Act and under Section 25 (1A) of the Arms Act, 1959, on the file of the learned XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) (CCH-50) at Bengaluru, have made out grounds to exercise the discretion under Section 439 of the Code of Criminal Procedure, 1973, in their favour and deserve their enlargement on bail?
[ii] Whether the order of the Special Court dated 29-04-2023 under appeal warrants any interference at the hands of this Court?
12. The charge sheet in the matter mentions that during the investigation, it was revealed that the Popular Front of India (PFI), a registered Society, though has in its objective the promotion of national integration, communal amity, social harmony, uphold democratic set up, etc., however, as an Organisation, it identifies gullible and impressionable Muslim youths and recruits them to PFI Organisations by showing them the videos of demolition of CRL.A No.1094 of 2023
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Babri Masjid, alleged atrocities against Muslims etc. Campus Front of India (CFI), the student wing of PFI acts as feeder Organisations. National Women's Front (NWF) is the women's front of PFI. SDPI is the political Wing of PFI. The said PFI has got teams called as 'Service Teams'. The members of the Service Teams are provided with basic and advanced training in Freedom Community Hall @ Mittur Community Hall of Idikidu village in Bantwal Taluk of Dakshina Kannada District. During training, the Service Team members are trained in assault using sticks, rods, machetes, talwars and knives, etc. The Service Team members are motivated by the speeches of leaders of PFI, that Rashtriya Swayamsevaka Sangha (RSS) and other Hindu Organisations are enemy No.1 of PFI and that it is the duty of every member of the Service Team to identify, list, and keep surveillance on RSS leaders and other prominent Hindu community leaders.
The charge sheet further accuses that the PFI uses its Service Team members as the Personal Security Guards and Drivers to the leaders of SDPI, NWF, PFI and CRL.A No.1094 of 2023
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CFI Organisations of PFI. The Service Team members are tasked to identify, list, recce and keep surveillance on RSS members, members of other Hindu Organisations and prominent Hindu community leaders in the locality. The Service Team members are regularly tasked to store weapons in Madarasas, Masjids, Schools and Houses. The PFI, as an Organisation, with an intent to create a reign of terror in the Country has been involved in the violent terrorist activities, including murder of Hindu community leaders in various States of the Country, thereby endangering the security and public order of the Country. The PFI members are found to have linkages with various terror Organisations in other Countries. It has an agenda to establish Islamic rule in India by the year 2047. It is for this reason, the PFI and its Associates were declared by the Central Government on the date 27-09-2022 as an Unlawful Association under Section 3 of the UAP Act.
13. In the present case, based on the complaint of one Sri. Madhu Kumar in FIR No.63/2022 for the offences punishable under Section 302 read with Section 34 of the CRL.A No.1094 of 2023
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IPC and dated 27-07-2022, which came to be registered in Bellare Police Station of Dakshina Kannada District of this State, the inquest panchanama was conducted and post- mortem examination of the dead body of Praveen Nettaru was also conducted. The Doctor who conducted autopsy noticed as many as thirty fresh injuries on the body of the deceased, seven injuries were found to be by sharp-edged weapons and three of them were fatal in nature. The blood sample of the deceased was said to be found collected for forensic analysis.
14. Based on the initial investigation, accused Zakiar @ Zakir (accused No.18) and Mohammad Shafeek (accused No.12) were arrested on the date 27-07-2022 and two Cell phones were seized in their personal search. During the scene of offence panchanama drawn on the date 28-07-2022, few more articles were shown to have been collected from the spot including the blood stained slippers of the deceased. It was found during investigation that the deceased Praveen Nettaru was a District Committee Member of the Bharatiya Janatha Party CRL.A No.1094 of 2023
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Yuva Morcha, Secretary of the Gejjageri Temple Committee, District Committee Member of Yuva Vahini (Youth Organisation of Billawa community). He was an active Hindu community activist and was a prominent Hindu community leader in Puttur and Sullia Taluks.
15. According to the charge sheet, the initial investigation revealed through statement of the witnesses was that, in order to create terror and fear among the members of the Hindu community, Praveen Nettaru was killed as he was prominent youth leader of Hindu community. It is further mentioned in the charge sheet that, one day prior to his murder, the deceased Praveen Nettaru had called one Sri. Charan Raj and intimated him about he (deceased) being observed by some strangers coming near his Shop with Kerala State registration vehicle and taking photos of his Shop in their mobile phones. He also alleged that he was being followed by those strangers in their vehicles. It is thereafter on the date 01-08-2022, based on the revelations during the investigation, Section 120B of the IPC and Sections 16 and CRL.A No.1094 of 2023
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18 of the UAP Act were invoked in the case. It is then the Government of India, Ministry of Home Affairs, by its order No.11011/68/2022/NIA dated 03-08-2022, directed the National Investigation NIA (NIA) to take up the investigation of the case as per the provisions of Section 6(4) read with Section 8 of NIA Act. Accordingly, the NIA took up the further investigation in the matter.
16. After the NIA took up the further investigation in the matter, few more accused were arrested by it. According to respondent - NIA, one of the accused by name Sri. Mohammed Jabir voluntarily stated before the Special Court at Bengaluru that he is willing to record his statement under Section 164 of the Cr.P.C. Accordingly, his statement under Section 164 of the Cr.P.C. was recorded on the date 22-11-2022 by the XVII Additional Chief Metropolitan Magistrate, Bangalore City, on the directions of the Special Court and in the presence of the Advocate for the said accused Mohammed Jabir. In the meantime, on the date 05-11-2022, searches were conducted in five locations and accused No.9 - Ismail Shafi CRL.A No.1094 of 2023
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K. (appellant No.1) and accused No.10 - K. Mahammad Iqbal @ Iqbal Bellare (appellant No.2) were arrested. Both of them were taken into Police Custody for five days. A drawing in the form of a sketch was seized from the house of accused No.10 - Mahammad Iqbal, which sketch, according to respondent - NIA, was the plan/sketch prepared to target and kill Sri. Praveen Nettaru. According to the prosecution, the Investigating Officer further revealed that the said plan was discussed and explained by Mahammad Iqbal (accused No.10) and Mustafa Paichar (accused No.4) in the conspiracy meeting held on the date 23-07-2022 in the house of accused No.11 - Shaheed M. (appellant No.3 herein). In the said conspiracy meeting, among others, all the present three appellants also participated. According to the prosecution, accused Mohammed Jabir, whose statement under Section 164 of the Cr.P.C. was recorded on the date 22-11-2022, revealed several details about the conspiracy, the Service Teams, their targets etc. He also revealed that in the conspiracy meeting held on the date 23-07-2022, wherein, CRL.A No.1094 of 2023
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apart from the present appellants, he too had participated, it was told by accused No.4 - Mustafa Paichar that, as per the orders of the PFI State Committee, they had to avenge the murder of Masood, as such, they need to kill a Hindu leader for which they were required to identify five to six Hindu community leaders. After the conspiracy meeting, accused No.10 - Mahammad Iqbal @ Iqbal Bellare (appellant No.2 herein) took the sketch along with him. The said accused Mohammed Jabir revealed several other vital information to the Investigating Agency. Based upon the information revealed by him, the NIA intensified its investigation, recorded the statements of several of the witnesses, collected CCTV footages of Jumma Masjid, Gandhi Nagar, Sullia, and new Kamadenu Traders, Bellare. The CCTV footages of new Kamadenu Traders, Bellare Village revealed assault on deceased Praveen Nettaru and the presence of witnesses during assault on him.
17. According to the prosecution, the analysis of data extracted from the Cell phones of accused persons CRL.A No.1094 of 2023
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revealed that several of the accused including the present appellants herein and accused Mohammed Jabir were all members of PFI/SDPI Organisation. The contact lists recovered from the Cell phones of accused persons revealed that the accused persons are known to each other as mobile numbers of other accused persons were found saved in the mobiles of the other accused. The social media extraction of the accused persons and PFI Organisations have also revealed the association of the accused persons with PFI organisation and SDPI party.
It is further the case of the prosecution that the analysis of CDR and IPDR during investigation corroborated the facts that among various other accused, the present appellants i.e. accused No.9 and accused No.10 and accused No.11 participated in the funeral of Masood in Bellare village. These accused along with accused Mohammed Jabir participated in the conspiracy meeting held in the house of accused Shaheed M. (accused No.11). The accused used to switch off their Cell CRL.A No.1094 of 2023
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phones at their mutual meetings including the conspiracy meetings.
With these, the prosecution alleges that the NIA has ascertained the role of each of the accused among which the role of the present three appellants, i.e. accused No.9, accused No.10 and accused No.11 are as follows:
(i) Role of accused No.9 (appellant No.1 - Sri. Ismail Shafeek K.) Ismail Shafi (A-9) is one of the State Secretary of SDPI, Karnataka. He is also member of PFI organisation and conducts motivational classes to PFI Service Team members.
On 22.07.2022, early morning after the funeral of Masood, Ismail Shafi (A-9) along with Mahammad Iqbal (A-10) and accused Jabir Areyadka gave provocative speech that he will avenge death of Masood by killing prominent Hindu community leader through PFI organisation.
On 23.07.2022, he attends conspiracy meeting in the house of Shaheed (A-11), during this he along with Mustafa Paichar (A-4), Mahammad Iqbal (A-10), Shaheed (A-11), Shafeek (A-12) and accused Jabir Areyadka discusses and CRL.A No.1094 of 2023
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supports the plan prepared by Mustafa Paichar (A-4) about killing of deceased Praveen Nettaru.
(ii) Role of accused No.10 (appellant No.2 - Sri.K. Mahammad Iqbal @ Iqbal Bellare) Mahammad Iqbal (A-10) is member of Bellare Grama Panchayath and president of SDPI party for Sullia Legislative Assembly constituency. He is also member of PFI organisation and conducts motivational classes to PFI members, participants in the protests, functions organised by PFI.
On 22.07.2022, early morning after the funeral of Masood, Mahammad Iqbal (A-10) along with Ismail Shafi (A-9) and accused Jabir Areyadka gave provocative speech that he will avenge death of Masood by killing prominent Hindu community leader through PFI organisation.
On 23.07.2022, he attended the conspiracy meeting in the house of Shaheed (A-11), during this he along with Mustafa Paichar (A-4) explains the sketch to co-conspirators about the plan prepared to kill of deceased Praveen Nettaru. This conspiracy meeting is attended by Mahammad Iqbal (A-10) Ismail Shafi (A-9), Shaheed (A-11), Shafeek (A-12) and accused Jabir Areyadka. After the conspiracy meeting, he took the said sketch. CRL.A No.1094 of 2023
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(iii) Role of accused No.11 (appellant No.3 - Sri. Shaheed M.) He is member of PFI organisation in Bellare Village. Shaheed (A-11) along with Mustafa Paichar (A-4) prepared the sketch on plan to kill deceased Praveen Nettaru. Further, on 23.07.2022, conspiracy meeting was held in his house in which accused persons Mustafa Paichar (A-4), Ismail Shafi (A-9), Mahammad Iqbal (A-10), accused Jabir Areyadka and Shafeek (A-12) had attended the meeting. During this conspiracy meeting, discussion was done about plan to kill deceased Praveen based on the sketch prepared by Shaheed (A-11).
It is keeping the above summary of the case of the prosecution, more particularly, the alleged role of the present appellants (i.e. accused No.9, accused No.10 and accused No.11) in the alleged crime, the application of the appellants for bail which has led to the filing of the present appeal under consideration is required to be analysed.
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18. The first point of argument of the learned counsel for the appellants (accused Nos. 9 to 11) was that, unless a perusal of the case diary or the report made under Section 173 of the Cr.P.C. leads the Court to opine that there are reasonable grounds for believing that the accusations against the accused person are prima facie true, the bail cannot be refused to them.
(a) In that regard, how to ascertain 'prima facie true' in the case of the prosecution, the learned counsel for the appellants as well the learned Special Public Prosecutor for the respondent - NIA relied upon a judgment of the Hon'ble Apex Court in the case of NATIONAL INVESTIGATION AGENCY Vs. ZAHOOR AHMAD SHAH WATALI reported in (2019) 5 Supreme Court Cases 1, wherein the Hon'ble Apex Court had an occasion to discuss the proviso to Section 43D(5) of the UAP Act. In that regard, it has made a detailed observation about how the said proviso is required to be read and understood. The relevant portions of the judgment that were brought to the notice of this Court by both side read as below: CRL.A No.1094 of 2023
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"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well.
Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the court that there are reasonable grounds for believing that the accused is "not guilty"
of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true"
would mean that the materials/evidence collated by the Investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other CRL.A No.1094 of 2023
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evidence, and on the face of it shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty"
of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing Sharma V.State of Maharashtra (2005) 5 SCC 294] wherein a three- Judge Bench of this court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus:
(SCC pp.316-17) "36. Does this statute require that before a person is released on bail, the Court, albeit prima facie, must come to the conclusion that he is not guilty of such CRL.A No.1094 of 2023
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offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to meet an offence under the Act and not any offence whatsoever be it a minor or major offence.... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. CRL.A No.1094 of 2023
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The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea."
44. xxx xxx xxx xxx xxx
45. xxx xxx xxx xxx xxx
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities......"
24. A priori, the exercise to be undertaken by the court at this stage - of giving reasons for grant or non-grant of bail - is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise
25. ...........That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 CrPC) and other material CRL.A No.1094 of 2023
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gathered by the investigating agency during investigation.
26. Be it noted that the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the investigating agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is CRL.A No.1094 of 2023
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required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.
27. For that, the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is."
The principle laid down as above would be borne in mind, while considering the relief sought for under the present appeal.
19. The learned counsel for the appellants (accused Nos.9 to 11) also relied upon a judgment of the Hon'ble Apex Court in the case of SEENI NAINAR MOHAMMED Vs. STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE CRL.A No.1094 of 2023
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reported in Docid#IndLawLib/1164529 and drew our attention to paragraph 15 of the said judgment and attempted to draw an anology between the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter for brevity referred to as "the TADA Act, 1987") with UAP Act and submitted that the intention to cause terror in the minds of the people is also very much required under the present Act.
No doubt, in the said case, the Hon'ble Apex Court had an occasion to explain as to what 'terrorism' means and the applicability of TADA, however, thereafter in paragraph 19 of the same judgment, it was pleased to hold that the cases relied upon before it do not help the respondent therein to make a case under the provisions of the TADA in the absence of intention to cause terror in the minds of the people or strike on them with terror.
20. In the instant case, suffice it to say that since the UAP Act is a special enactment and is exhaustive in itself, the essence of the offences alleged under the relevant Section is required to be borne in mind before CRL.A No.1094 of 2023
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coming to a view that the accusations against the accused are 'prima facie true'.
21. The learned counsel for the appellants (accused Nos. 9 to 11) also relied upon a judgment of the Hon'ble Apex Court in the case of THWAHA FASAL Vs. UNION OF INDIA reported in Docid#IndLawLib/1600665, wherein, in a matter falling under the UAP Act, the Hon'ble Apex Court was pleased to observe in paragraph 23 of its judgment that, the restrictions imposed by sub-section (5) of Section 43D per se do not prevent a Constitutional Court from granting bail on the ground of violation of part III of the Constitution.
The above principle also would be borne in mind while analysing the present case.
22. The learned counsel for the appellants (accused Nos.9 to 11) submitting that every alleged recovery at the instance of the accused cannot be accepted as a recovery under Section 27 of the Evidence Act, relied upon a CRL.A No.1094 of 2023
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judgment of the Hon'ble Apex Court in the case of Subramanya Vs. State of Karnataka reported in 2022 SCC OnLine SC 1400 and submitted that, there is a requirement of two independent witnesses to be present while hearing/recording the statement said to have been made by the accused and drawing a recovery panchanama.
The Hon'ble Apex Court in paragraph 84 of its judgment in the said case was pleased to observe as below:
"84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the CRL.A No.1094 of 2023
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accused while in custody makes such statement before the two independent witnesses (panch- witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law......"
However, it cannot be ignored that the Hon'ble Apex Court in the very same judgment, in paragraph 85 of its judgment, was also, after relying upon its another previous judgment reported in Murli V.State of Rajasthan [(2009) 9 SCC 417] pleased to observe that the contents of the panchanama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box.
The principle laid down in the above judgment would also be borne in mind while analysing the present case.
23. Learned Special Public Prosecutor for the respondent - NIA in his argument also relied upon a judgment of a co-ordinate Division Bench of this Court in CRL.A No.1094 of 2023
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the case of IMRAN AHMED Vs. NATIONAL
INVESTIGATING AGENCY in Criminal Appeal
No.124/2023 dated 29-05-2023 wherein, with regard to what the Court may lose sight of in treating bail petitions when the offences arise under the NIA Act, the Court was pleased to observe in page 26 of its judgment as follows:
"(a) Learned SPP is right in telling the court that in bail matters, what the court has to bear in mind is not only the rights & liberties of the accused but also the threat to safety of the civil society, should offenders of the kind be released from confinement. Women & children have to walk on the street; they have to go to milk booths & markets; parents need to take their children to the schools and fetch them back; people have to go to work places; tillers have to till the land and labourers to sweat in the soil. All this may be jeopardized, if accused against whom charge sheet has been filed by the Spl. Investigating Agencies for grave offences, are let out. The argument of possible threat to the witnesses cannot be casually discounted. This apart, there are protected witnesses too, who are waiting to depose in the criminal prosecution; it is the duty of the court to ensure their safety, as well."CRL.A No.1094 of 2023
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24. It is keeping the observations made in the above judgments relied upon from both side, the case on hand is required to be proceeded further in its analysis.
25. The learned counsel for the appellants (accused Nos. 9 to 11) contended that the FIR was filed only against three unknown accused who were residents of Sullia Taluk, however, the present appellants were involved/included based upon the alleged voluntary statement of the accused by name Mohammed Jabir. But the said Jabir on the date 07-02-2023 has stated before the Court that he was tortured to give his statement, as such, the inclusion of the present appellants is proved to be on the harassment of the Investigating Agency upon the said Mohammed Jabir. However, the said Mohammed Jabir retracted his statement later on and has now been arraigned as an accused, as such, his statements cannot be accepted. He therefore submitted that, the documents produced by the NIA are all fabricated, only with an intention to implicate the present appellants falsely in the case.
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26. A perusal of the materials placed before this Court would go to show that, Mohammed Jabir, who was later included as accused No.21 in the case was arrested and produced before the Special Court along with his medical examination records. Upon the request made by the respondent - NIA, he was remanded to the Police Custody. Upon completion of the period of Police Custody, he was produced before the Special Court along with his medical examination records. Neither the medical records nor the said accused (Mohammed Jabir) when produced before the Special Court complained anything about any alleged ill-treatment at the hands of the NIA Police. After remanding to Judicial Custody, he was produced before the Honb'le Court, at the relevant point of time, seeking further remand and extension of Judicial Custody. On none of those dates of his production before the Court, Mohammed Jabir has complained any alleged ill-treatment or torture upon him by the Police or the NIA. It appears from the records that Mohammed Jabir was also facilitated to contact his family members, however, no complaint by CRL.A No.1094 of 2023
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family members about the alleged ill-treatment to Mohammed Jabir was placed before the Court. According to the respondent- NIA, it was the said Mohammed Jabir himself who volunteered to give his statement before the learned Magistrate. Accordingly, he was produced before the learned Magistrate.
27. The materials placed before this Court would also show that Mohammed Jabir was explained about the legal implications of his statement which he was intending to give under Section 164 of the Cr.P.C. before the Magistrate. He was given a reasonable time to reconsider his decision to give his statement. It is only thereafter, on the next day, the Magistrate proceeded to record his statement. The copy of his statement under Section 164 of the Cr.P.C. which is placed before this Court by the appellants would go to show that, he has called himself as the District President of PFI, Puttur, in the year 2020. The said PFI, apart from having several divisions, areas and units also has a Wing called 'Service Team'. The said Service Team selects healthy and fit youths and train CRL.A No.1094 of 2023
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them as per the training Book No.1, Book No.2 and Book No.3. The youths would be shown the videos of Gujarat riots, Babari Masjid. Those trained members would work as Body Guards of PFI and SDPI leaders and work voluntarily for the PFI Organisation.
The Charge Sheet has also shown that Mohammed Jabir has further stated in his Section 164 Cr.P.C. statement before the learned Magistrate that, on the date 23-07-2022, he, joined by the present appellants, i.e. accused No.9, accused No.10 and accused No.11 and few others held a meeting, wherein, as per the direction of the State Unit/Organisation, as a revenge for the killing of one Sri. Masood, these people had to kill a person in which regard, about five to six leaders among Hindu community had to be identified. In that meeting, accused No.10 took a sketch which was in possession of accused Mustafa Paichar (accused No.4). On the date 26-07-2022, the said Mustafa Paichar calling him (Mohammed Jabir) over the Cell phone, stated to him that he need not have to worry and that they have executed their work.
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The said Section 164 Cr.P.C. statement recorded by the Magistrate also certified that accused Mohammed Jabir was told before he proceeded to give his statement that, he was not bound to give his confession statement and that in case if he gives his statement, any of the confessions made therein may be used against him as an evidence. Despite the same, Mohammed Jabir proceeded to give his confession statement which was voluntary. The learned Magistrate has also certified that the statement given by Mohammed Jabir was read over to him and he has admitted the same as true. The statement as given by him in its entirety was recorded. It goes to show that the Magistrate was fully convinced that there was no coercion, force or undue influence or duress upon Mohammed Jabir to give any such statement. It is only after understanding what he is telling and the consequences of the same, Mohammed Jabir has given his voluntary statement. Even though the said confession given by Mohammed Jabir is said to have been retracted by him at a later date, however, the said retracted CRL.A No.1094 of 2023
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confession cannot be totally expunged from the records, but it cannot be made solely the basis of conviction unless the same is corroborated.
28. In a judgment relied upon by the learned Special Public Prosecutor for the respondent - NIA in the case of SUBRAMANIA GOUNDAN Vs. STATE OF MADRAS reported in 1958 SCR 428, the Hon'ble Apex Court, in paragraph 14 of its judgment was pleased to observe as below:
"14. ....The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being Kesava Pillai alias Koralan and Kesava Pillai alias Thillai Kannu Pillai [I.L.R.53 Mad 160] that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may CRL.A No.1094 of 2023
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be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated....."
29. Therefore, it is too early to say that since Mohammed Jabir is said to have retracted from his statement given under Section 164 of the Cr.P.C. and has now been arraigned as one of the accused in the case, his said statement cannot be looked into at all. The said aspect of whether the said statement under Section 164 of the Cr.P.C. can be looked into and considered and if so, to what extent, would all require a detailed consideration during the course of full-fledged trial.
30. Apart from the said confession statement of Mohammed Jabir, the prosecution has relied upon various other materials and evidences claiming that the same would show the active involvement of the present appellants in the commission of the crime. As such, the CRL.A No.1094 of 2023
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argument of the learned counsel for the appellants that in view of the accused Mohammed Jabir retracting from his statement under Section 164 of the Cr.P.C., based upon which the present appellants have been implicated in the matter, the appellants stands proved to be innocent in the matter and that they have been falsely implicated in the matter, cannot be accepted.
31. The learned counsel for the appellants contended that, unless Mohammed Jabir, who was alleged to be an accomplice in the matter was granted pardon under Section 306 of the Cr.P.C., his alleged statement under Section 164 of the Cr.P.C. is of no consequence. In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of CHANDRAN @ MANICHAN @ MANIYAN Vs. STATE OF KERALA and connected matters reported in Docid#IndLawLib/261151 and drew the attention of this Court to paragraph 42 of the said judgment.
CRL.A No.1094 of 2023
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In the said case, the appellants had challenged the confirmation of their conviction made by the Kerala High Court for the offences punishable under Section 57A(1)(ii) under the Abkari Act (State Act for the State of Kerala) along with convictions under Sections 324, 326, 328 and 201 of the IPC as also the other Sections like Section 55(h) and (i) and 58 of the Abkari Act.
One of the point of argument addressed to the Hon'ble Apex Court for the appellants in the said case was that, the evidence of PW-53 therein could not be taken into consideration and it would be inadmissible, because, that witness, though was an accomplice, he was neither granted pardon under Section 306 of the Cr.P.C. nor was he prosecuted and the prosecution unfairly presented him as a witness for the prosecution.
In the same judgment, the Hon'ble Apex Court, after relying upon its previous judgment in the case of Laxmipat Choraria and others Vs. State of Maharashtra reported in AIR 1968 SC 938 and its various other judgments observed as below:
CRL.A No.1094 of 2023
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"This case would bring about the legal position that even if the prosecution did not prosecute PW-53 and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. The contention of Shri. Radha Krishnnan that his evidence would be inadmissible because he was not granted pardon or he was not made accused would, thus, be of no consequence and is rejected. In this backdrop, after considering the whole material and the findings of the Trial Court and the appellate Court, we have no hesitation to hold that the Trial Court and the appellate Court were right in convicting A-7."
32. The learned counsels from both side, on the same aspect, relied upon another judgment of the Hon'ble Apex Court in the case of GIRISH SHARMA AND OTHERS Vs. STATE OF CHHATTISGARH AND OTHERS reported in (2018) 15 Supreme Court Cases 192.
In the aforesaid case also, the question before their Lordships was, whether the prosecution was entitled to cite the accused as a witness even without recourse to Section 306 of the Cr.P.C.? But, Sections 161, 164, 193, CRL.A No.1094 of 2023
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306 and 319 of the Cr.P.C. were considered by the Hon'ble Apex Court referring to Chandran's case (supra). It was submitted before the Hon'ble Apex Court that the procedure under Section 306 of the Cr.P.C. to seek pardon is not the only course available to rely upon the evidence of an accomplice by citing him as a witness instead of arraigning him as an accused.
After considering the matter in detail, the Hon'ble Apex Court in paragraph 6 of its judgment was pleased to observe as below:
"6. The submission made on behalf of the appellants that the prosecution was entitled to cite the three original accused as witnesses, in the given fact situation, having regard to larger interest of justice to strengthen the prosecution case against more serious accused cannot be held to be without substance. This could be done even without recourse to Section 306 CrPC. It is certainly open to the court to finally decide whether cognizance ought to be taken or not after balancing all the relevant considerations. The decision of the Prosecutor to cite them as witnesses does not bind CRL.A No.1094 of 2023
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the court and such decision can be interfered with if interest of justice so requires."
33. In the instant case also, citing the protected witnesses as charge sheet witnesses and examining them as the prosecution witnesses, no doubt, does not bind the Court and can be interfered with, provided, the interest of justice so requires. It is certainly open to the Court to finally decide whether cognizance ought to be taken against such persons, after balancing all the relevant considerations including the decision of the Prosecutor whether or not to cite them as the witnesses rather than as accused would strengthen the prosecution case as against more serious accused.
34. Learned counsel for the appellants also contended that there is no recording of the statement of the eye witnesses/protected witnesses, as such, their evidence cannot be believed. In his support, he relied upon a judgment of the Hon'ble Apex Court in the case of HARBEER SINGH Vs. SHEESHPAL reported in CRL.A No.1094 of 2023
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Docid#IndLawLib/1035427, wherein in paragraph 17 of its judgment, after relying upon its previous judgment in the case of Ganesh Bhavan Patel Vs. State of Maharashtra [(1978) 4 SCC 371], the Hon'ble Apex Court observed that the said case is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 of the Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.
35. The learned Special Public Prosecutor for the respondent - NIA, stating that, in the instant case, there is no delay in recording the statement of the witnesses after the matter was entrusted to the NIA, has relied upon a judgment of the Hon'ble Apex Court in the case of Goutam Joardar Vs. State of West Bengal and connected matters reported in 2021 SCC OnLine SC 910.
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In the said case, with respect to the alleged delay in recording the statement of the alleged eye witnesses, the Hon'ble Apex Court was pleased to observe that, the factum of delay by itself would not result in rejection of their testimonies. In the said case, it was observed that the material on record definitely established the fear created by the accused. If the witnesses felt terrorised and frightened and did not come forward for some time, the delay in recording their statements stood adequately explained.
36. In the instant case, though the incident took place on the night of the date 26-07-2022 and an FIR was made on the date 27-07-2022 and the investigation was commenced by the Karnataka State Police, however, the order by the Ministry of Home Affairs, Government of India, entrusting the matter to the NIA was passed only on the date 03-08-2022. The NIA took up the investigation by re-registering the crime on the date 04-08-2022. The statement of some of the witnesses are said to have been recorded on the 8th and 9th of August 2022. Thus, it CRL.A No.1094 of 2023
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cannot be taken that there is an inordinate delay of two months in recording the statement of the witnesses. Still, assuming that there is some delay in recording the statement of some of the witnesses, it cannot be ignored that according to the prosecution, initially no witnesses were coming forward to give their statement because they were terrorised. It took some time for the Investigating Agency to gather the CCTV footages of the locality, identifying the witnesses and securing them the protection and then to record their statements. Therefore, the contention of the learned counsel for the appellants on this point is also not acceptable.
37. The learned counsel for the appellants (accused Nos.9 to 11) in his argument submitted that, the statement of two witnesses by name Sri. Rakesh Rai and Sri. Padmanabha Shetty recorded by the State Police in their total number of pages does not tally when compared to the index of pages submitted to the NIA. The total number of pages in the index does not tally with the total CRL.A No.1094 of 2023
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number of pages in the actual statement. This establishes that NIA has fabricated things and created the statements.
38. The said argument of the learned counsel for the appellants (accused Nos.9 to 11) is not convincing and acceptable for the reason that, the statement of those two witnesses appears to be containing two pages each. If at all any such discrepancy as alleged is there, then, it is a matter to be properly agitated by the aggrieved party during the trial, in a manner know to law and for the Special Court to consider the same in a full-fledged trial, provided such a contention has been taken by the accused before it, at the appropriate stage, in the trial. As such, the said argument of the learned counsel for the appellants is also not convincing.
39. On the other hand, when the materials placed before this Court is perused carefully, it goes to show that, the offences alleged against the present appellants are not only under the Indian Penal Code alone, but also under the UAP Act and under the Arms Act. The offences alleged CRL.A No.1094 of 2023
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under the UAP Act are Sections 16, 18, 18A, 19 and 20. The materials placed before the Court in the form of statement of the witnesses and the copies of the documents prima facie shows that each of the appellants is shown to have played a definite, active and significant role in the commission of the alleged crime. The role alleged to have been played by each of the accused Nos.9 to 11 has already been observed above. The protected witnesses 'G', 'H', 'I', and 'L' are shown to have given a detailed picture of the participation and involvement of the present appellants in the commission of the crime. The appellants are alleged to have attended the funeral of Masood at Bellare and after the funeral, the appellants (accused No.9 and accused No.10) are alleged to have given provocative speeches that they would retaliate through PFI and takeaway the life of Hindu prominent leaders, which provocative speeches were alleged to have made the accused to conduct a recce (surveillance of the spot) before execution of their alleged plan. On the date 23-07-2022, in the evening, the appellants, joined by CRL.A No.1094 of 2023
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accused No.4, who was the head of the Service Team of Puttur along with others are said to have held a conspiracy meeting in the house of appellant No.3 (accused No.11) at Bellare. It is also alleged that in the said conspiracy meeting, the accused, including the appellants discussed about a sketch already prepared in connection with a plan to attack Sri. Praveen Nettaru. The appellant No.3 (accused No.11) is alleged to have prepared the sketch in his own handwriting. According to prosecution his hand writing on the sketch was confirmed by the expert's opinion. The appellant No.2 (accused No.10) is alleged to have explained the plan to the group in the conspiracy meeting. The said sketch containing the plan for attack on the deceased Praveen Nettaru is alleged to have been recovered from the residence of appellant No.2 (accused No.10). The sketch which is part of the charge sheet prepared, when studied with the statements of the witnesses and the description of the abbreviations used therein would go to show that, the positions to be taken by each of the accused including accused No.10 and CRL.A No.1094 of 2023
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accused No.11 and the mode of executing their plan in attacking and eliminating Praveen Nettaru appears to have been depicted in it. Though among the two sketches finding place in the charge sheet papers, a slight variation appears to be found, however, the contention of the prosecution that the second sketch is with respect to the post execution of the plan showing how it was executed, cannot be ignored at this stage and the same may have to be ascertained in a full-fledged trial.
40. It is not the case of the appellants (accused Nos. 9 to 11) that the accused had any previous enmity against the deceased Praveen Nettaru. However, the said Praveen Nettaru was recognised in the locality as an active Pro Hindu activist. Therefore, the contention of the prosecution that, in retaliation to the alleged killing of one Masood on the date 19-07-2022 in Kalanje village, about eight Kilometers away from Bellare village, the accused had hatched a conspiracy, including the present appellants, cannot be ignored.
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41. Even though the present appellants are not shown to have been physically present and attacked Praveen Nettaru and inflicted injuries upon him, as observed by the Hon'ble Apex Court in its judgment in the case of K. HASHIM Vs. STATE OF T.N. reported in (2005) 1 Supreme Court Cases 237, which judgment was relied upon by the learned Special Public Prosecutor in his argument to argue that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished in order to constitute an indictable offence.
42. No doubt, in order to constitute a conspiracy, meeting of minds of two or more persons to do an illegal act or an act by illegal means is a must. However, as held by our Hon'ble Apex Court in the case of BILAL HAJAR ALIAS ABDUL HAMEED Vs. STATE REPRESENTED BY INSPECTOR OF POLICE reported in (2019) 17 Supreme Court Cases 451 and relied upon by the learned Special Public Prosecutor, it is not necessary that all the conspirators must know each and every detail of the CRL.A No.1094 of 2023
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conspiracy which is being hatched and nor is it necessary to prove their active part/role in such meeting. In other words, their presence and participation in such meeting alone is sufficient.
43. In the instant case, as noticed above, all the present appellants are said to have attended the conspiracy meeting in the house of the present appellant No.3 (accused No.11) of Bellare village and discussed the plan of killing Praveen Nettaru, in which regard, a sketch was also prepared showing which positions, the accused had to take in execution of their plan and how to execute the same.
44. As observed by a Co-ordinate Division Bench of this Court in its judgment dated 26-06-2023 in the case of Sri. Faraz Pasha Vs. State by National Investigation Agency, Bengaluru in Criminal Appeal No.90/2023, while referring to paragraph 23 of the judgment of the Hon'ble Apex Court in Zahoor Ahmad Shah Watali's case (supra), observed that, whenever the Court has to arrive at a CRL.A No.1094 of 2023
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satisfaction that the accusations against an accused appear to be prima facie true, the degree of satisfaction is lighter than the degree of satisfaction to be recorded for considering an application for discharge of an accused or framing charges.
Thus, if the materials placed before the Court are sufficient enough to form an opinion that they cannot be out-rightly rejected as complicity of the accused in the commission of the crime apparently appears, the Court can record a satisfaction that the accusations are prima facie true.
45. In the case on hand, the appellant No.1 (accused No.9) and appellant No.2 (accused No.10) after participating in the funeral of Masood gave provocative speeches that they will avenge the killing of Masood by killing a prominent Hindu community leader through PFI Organisation is shown to have been corroborated by the statements of protected witnesses 'G', 'H, 'I' and 'L'. Further, the Investigating Officer is also said to have collected several call details between the mobile phones of CRL.A No.1094 of 2023
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the appellants regarding the conspiracy and their participation and involvement in the commission of the crime. The alleged provocative speeches of the determination of the accused and their Organisation to eliminate prominent Hindu leaders at random in retaliation of killing of one Sri. Masood could only be with an intent to threaten and strike terror in one particular section of the people in India. As such, it would be a terrorist act under Section 15 of the UAP Act. It is not necessary that such a terrorist act has to be committed only by a terrorist Organisation, only by a terrorist association or a terrorist gang as defined under Section 2 (i) and 2(m) of the UAP Act. Section 15 of the UAP Act since uses the word "whoever" it refers to "any person" committing the act mentioned in the said Section. The conspiracy in which the participation of the present appellants is prima facie found to be true, is an act of advocating, abetting and facilitating the commission of a terrorist act and an act preparatory to the commission of a terrorist act which is punishable under Section 18 of the UAP Act. CRL.A No.1094 of 2023
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46. Thus it can be held that there exists sufficient incriminating evidence against the present appellants (accused No.9, accused No.10 and accused No.11) to show their active involvement in the alleged crime. The materials placed by the prosecution, at this stage, leads us to an opinion that there are reasonable grounds for believing that the accusations against the present appellants (accused Nos. 9 to 11) are prima facie true.
47. It is since considering the materials placed before it in its proper perspective, the Special Court has passed the impugned order, rejecting the bail application filed by the present appellants under Section 439 of the Cr.P.C., we do not find any reason to interfere in the said order.
As such, we proceed to pass the following:
ORDER The present Criminal Appeal stands dismissed as devoid of merits.CRL.A No.1094 of 2023
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Registry to transmit a copy of this judgment to the Court of the learned XLIX Additional City Civil and Sessions Judge (Special Court for Trial of NIA Cases) (CCH-50) at Bengaluru, immediately, for its information.
Sd/-
JUDGE Sd/-
JUDGE BMV*