Kalidas @ Sekhar @ Mani vs Union Of India on 11 April, 2025

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Kerala High Court

Kalidas @ Sekhar @ Mani vs Union Of India on 11 April, 2025

This appeal is preferred invoking Section 21 of the National Investigation Agency Act, 2008 challenging an order passed by the Special Court for Trial of NIA Cases, Ernakulam (the Special Court) dismissing an application for bail submitted by the appellant who is the first accused in SC No.02/21/NIA/KOC.

2. The case was one originally registered by Edakkara Police based on the disclosure made by the appellant during the investigation pursuant to his arrest in connection with another crime. The disclosure made by the appellant was that he and others had organized a training camp during September 2016 in Karulai forest with arms, including automatic rifles for furthering the activities of the proscribed terrorist organization, CPI (Maoist), with a view to wage war against the Government of India. The case was Crl.A. No.443 of 2025

-: 3 :- 2025:KER:31232 later transferred to the Anti Terrorist Squad of the State Government and whilst so, the National Investigation Agency (NIA) took over the investigation and concluded the same by submitting the final report. The offences alleged against the appellant are offences punishable under Sections 120B, 121, 121A and 122 of Indian Penal Code (IPC), Section 27(1)(e)(iv) of the Kerala Forest Act, 1961, Section 7 read with Section 27(2) of the Arms Act and Sections 18, 18A, 20, 38 and 39 of the Unlawful Activities (Prevention) Act (UAPA).

3. The appellant was arrested in connection with the case as early as on 17.10.2017 by Edakkara Police and he is in custody ever since his arrest. The application submitted by the appellant for bail was dismissed by the Special Court placing reliance on Section 43D(5) of the UAPA Act which provides that no person accused of an offence punishable under Chapters IV and VI of the UAPA Act shall, if in custody, be released on bail if the court, on a perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

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4. A written objection has been filed by the NIA in the appeal contending, among others, that the case involves serious offences directly relating to anti-national activities, which require extensive judicial scrutiny; that while the right to a speedy trial is essential, it cannot supersede public safety and national security when the accused concerned are involved in terrorism related activities and that Section 43D(5) of the UAPA bars the court from granting bail to such accused. It was also contended in the objection that the appellant is accused in 19 other cases across multiple States and that his involvement in armed training camps, conspiracy, and other unlawful activities has been conclusively established through multiple forms of evidence collected by the Investigating Agency. The relevant passages in the objection dealing with the evidence collected against the appellant read thus:

"A. Oral Evidence: Statements of witnesses CW-1, 2, 3, 11, 48, 49, 50, 66, 97, 117, and approver Shobha (A-20), confirms his role as an armed cadre of CPI (Maoist). The statement of Shobha (A-20) recorded u/s 164 of CrPC (D No-276) and 161 of CrPC proves the crime and the physical and arms training camp conducted by CPI (Maoist) in the deep reserve forest of Nilambur. It also establishes the participation of A-1 to A-28 in the said training camp during the period from May 2016 to September 2016 and the use of arms for training.

a. The statement of CW-11 confirms the presence of the accused in the video of physical/arms training of CPI (Maoist), which was found in the seized digital devices of accused in Crime No. 536/2016 and analyzed by him.

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-: 5 :- 2025:KER:31232 b. The statements of residents of Mundakadavu colony proving the scene of crime, and the statements of residents of Pulimunda colony identifying A-1 as an armed cadre of CPI (Maoist) and confirming his presence in the video and Protected Witness- S and T. c. The statements of relatives/neighbors of accused Kalidas (A-1), proving his deep influence by Maoist ideology, his long disappearance from home, and his presence in the video containing physical/arms training of CPI (Maoist).

d. The statements of proving the seizure of digital devices from the SOC of Crime No. 536/2016, containing videos related to physical/arms training of Maoist members, including A-1, corroborates the evidence of the approver.

e. The statement of Dy. SP (Arms), Thiruvananthapuram (CW-72), proves that the firearms used for training in the forensically extracted video are prohibited arms.

B. Material Evidence: Seizure of prohibited arms MO-91 (Tapacha gun and ammunition) during his arrest in Crime No. 153/2017. Four numbers of 303 rifles were seized from crime scenes of Exchange of Fire (EOF) between Maoists and the Thunderbolts unit of Kerala Police in Crime 291/2019 (MO No-

92) and Crime 292/2019 of Agali P.S. (MO No-93) and another in Crime 531/2020 of Padinjarathara P.S. (MO No-94).

C. Digital & Scientific Evidence: Seized laptop and memory card containing videos of arms training camps (MO NO-97, 98, 99 and 100).

a. Forensic examination of videos from Crime 536/16 of Edakkara, confirming his participation. The video comparison analysis by SFSL, Thiruvananthapuram, matching the Appellant's image to arms training footage. (D No-277).

b. The video path (VID-20160719-141109) retrieved from the digital device seized from the crime scene of Crime No. 536/16 of Edakkara P.S, showing the appellant carrying a prohibited 303 rifle along with other co-accused, who were armed with a double-barrel gun, AK-47 and other deadly weapons.

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                 D.      Documentary Evidence: Seizure mahazars, digital

evidence reports, and other documents proves his active role. Arrest Memo (D No-3), Seizure mahazar (D No.8), Search list (D No-113), D No. 114 to 118, Certified copies of FIR of crime No-153/2017 (D No.353), seizure mahazar (D No.354), Arrest Memo (D No-355), and other documents (D No. 356), FIR in Crime No. 536/2016 of Edakkara P.S (D No.320), Scene Mahazar (D No.321), Seizure Mahazer (D No.322), and other documents (D No. 323 to 329) proves the seizure of digital devices (Asus Laptop, external Hard-disk, and one Memory card) which contain videos of physical/arms training organized by CPI (Maoist) in the instant crime. Forensic examination report of video comparison from SFSL, Trivandrum which provides positive result regarding the video of accused doing arms training (D No. 397). The disclosure cum pointing out proceedings of A-1 (D No.4), A-4, A-11, A-18, A-19, A-20, A-21, A-22, and A-24, proving the incident, scene of crime (SOC), and corroborating the 164 statement of A-20. The video identification proceedings (D No.277) prepared as disclosed by A-20, confirming the active participation of the accused in the training camp organized by CPI (Maoist)."

In short, according to the NIA, this is not a case where the court should extend indulgence to enlarge the accused on bail.

5. Heard Adv.Kaleeswaram Raj, the learned counsel for the appellant as also Sri.AR. L.Sundaresan, the learned Additional Solicitor General of India.

6. The learned counsel for the appellant pointed out that even though the final report in the case was submitted as early as on 22.05.2015, the trial is yet to begin and even if the trial begins shortly, its completion is unlikely for a considerably long period as there are as many as 274 witnesses to be examined in the case in terms of the final report. According to the learned counsel, inasmuch Crl.A. No.443 of 2025

-: 7 :- 2025:KER:31232 as the appellant is in custody for almost 8 years now, his continued detention would violate his right to life guaranteed under Article 21 of the Constitution. It was argued by the learned counsel that the provisions in the nature of Section 43D(5) of the UAPA is not an impediment for this court in enlarging the appellant on bail, once it is established that he is being subjected to long incarceration and that the trial is unlikely to be completed for a considerably long period.

7. Per contra, the learned Additional Solicitor General supported the impugned decision pointing out that inasmuch as the case involves serious offences which are directly related to anti- national activities, the Special Court is justified in rejecting the request of the appellant for bail. It is all the more so, in the light of the evidence collected by the Investigating Agency, submitted the learned Additional Solicitor General. The fact that the appellant is a person involved in 19 other cases across multiple States has also been highlighted by the learned Additional Solicitor General, to justify the argument that the impugned decision is in order. As regards the argument advanced by the learned counsel for the appellant based on the fundamental right guaranteed to the Crl.A. No.443 of 2025

-: 8 :- 2025:KER:31232 appellant under Article 21 of the Constitution, the learned Additional Solicitor General contended that inasmuch as the appellant is involved in terrorist activities, the delay in the trial is not a ground to seek bail. The learned Additional Solicitor General relied on the decisions of the Apex Court in Gurwinder Singh v. State of Punjab, (2024) 5 SCC 403 and Sk. Javed Iqbal v. State of U.P., (2024) 8 SCC 293, in support of his contentions.

8. In the course of the arguments, the learned Additional Solicitor General has made available, the particulars of various other cases in which the appellant is involved and the same would show that out of the 20 cases including the present one, the appellant was enlarged on bail in 18 cases and the said cases include even cases registered under Sections 124A and 121 IPC as in the case on hand.

9. We have examined the arguments advanced by the learned counsel for the parties on either side.

10. Bail cannot be refused to an accused who is subjected to long incarceration, if the trial is unlikely to be completed within a reasonable time. This proposition applies even to accused in cases involving offences punishable under penal statutes Crl.A. No.443 of 2025

-: 9 :- 2025:KER:31232 containing clauses restricting grant of bail. There cannot be any doubt to these propositions. A Division Bench of this Court has reiterated these propositions in a recent case namely, Nassar v. Union of India, 2025 KHC OnLine 410. The relevant passages in the said decision read thus:

8.2. In Shaheen Welfare Assn. v. Union of India ((1996) 2 SCC

616), the Apex Court taking note of the long incarceration suffered by the accused, granted bail to the accused by categorising them into different groups based on their involvement and role and ordered their release if the conditions are satisfied. Reference was also made to the observations in Kartar Singh v. State of Punjab ((1994) 3 SCC

569), wherein it was held that no one can justify the gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Art.21. It was held that there is a need to adopt a pragmatic and constitutionally sensitive approach in situations where an undertrial is deprived of personal liberty for an extended period and there is no reasonable prospect of the trial concluding within a foreseeable timeframe. In paragraph 14 of the said judgment, the Supreme Court observed that where undertrials are not directly accused of engaging in terrorist acts, but are instead booked under S.120B or 147 of the Indian Penal Code, or merely found in possession of allegedly incriminating material, a lenient view may be taken taking note of the long period of incarceration that has been undergone. The Court further held that in such cases, release may be considered if the undertrials have been in custody for periods of three years and two years, respectively.

8.3. In Union of India v. K.A. Najeeb (supra), the Apex Court has clarified that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. Reliance was placed on the judgment in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India ((1994) 6 SCC 731), wherein it was held that undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the Crl.A. No.443 of 2025

-: 10 :- 2025:KER:31232 accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. The Apex Court went on to observe that the presence of statutory restrictions like S.43D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at the commencement of proceedings, the courts are expected to appreciate the legislative policy against the 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.43D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of the constitutional right to a speedy trial. (emphasis supplied) 8.4. In Javed Gulam Nabi Shaikh (supra), the Apex Court reiterated that the presence of statutory restrictions like S.43D(5) or S.37 of the NDPS Act, per se, do not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. In the said case, the accused had been undergoing incarceration for about 4 years. The following pertinent observations were made:

16. Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Art.21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Art.21 of the Constitution applies irrespective of the nature of the crime.

18. We may hasten to add that the petitioner is still an accused;

not a convict. The over - arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

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19. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Art.21 of the Constitution. 8.5. In Athar Parwez (supra), the facts were that Athar along with the co - accused were arrested on the ground that he was an active member of the PFI and that they were planning to cause disturbance during the proposed visit of the Prime Minister to Patna. During the raid that was carried out certain recoveries were carried out, prominent amongst them was a document titled "India 2047 towards rule of Islam in India. His application for bail having been dismissed, he approached the Apex Court seeking bail. One of the contentions was prolonged incarceration without trial. In the said case, the accused had been undergoing incarceration for 2 Years and 4 months at the time of consideration of the Appeal by the Apex Court. While allowing the application on the ground of prolonged incarceration, the Apex Court observed as under:

32. The Appellant was arrested on 12/07/2022. He has undergone custody for more than two years and four months. Chargesheet was filed on 07/01/2023 but till date charges have not been framed which is an admitted position. There are 40 accused and 354 witnesses cited by the prosecution to be examined. There can be no doubt that the trial is not likely to complete soon, and as has been laid down by various judgments of this Court as has been referred to above, the Appellant cannot be allowed to languish in jail indefinitely and that too without a trial. If such an approach is allowed Art.21 of the Constitution of India would stand violated.

The ratio as laid down by this Court in Union of India v. K.A. Najeeb (supra) as also the other judgments in Javed Ghulam Nabi Shaikh v. State of Maharashtra (supra) and Thwaha Fasal v. Union of India (supra) would be applicable to this case and would squarely apply entitling the Appellant for grant of bail.

Reverting to the facts of the case on hand, the appellant was arrested on 17.10.2017, and since then, he is in custody. In other words, the appellant is in custody for almost 8 years. The appellant has by now, completed the maximum term of imprisonment provided for some of the offences charged against him. No doubt, as Crl.A. No.443 of 2025

-: 12 :- 2025:KER:31232 already noticed, some of the offences charged against him are offences for which either life imprisonment or capital punishment is provided for. But that does not justify incarceration for such a long term without the trial being commenced. The greater the severity of the offence, the more expeditious the trial ought to be. Failure to adhere to this principle yields detrimental consequences to both the accused as also the society. For the accused, prolonged delay particularly in custodial cases, infringe upon his right to life and liberty and significantly impair the ability to mount a robust defence. For society, such delays erode public trust in the justice system, fostering a perception of inefficiency and undermining the rule of law. The next aspect concerns the trial. There is no dispute to the fact that the trial in the case is yet to begin. Similarly, there is also no dispute to the fact that as many as 274 witnesses have been cited in the final report, even though it was pointed out by the learned Additional Solicitor General that all the cited witnesses may not be examined. Even if the examination of some of the witnesses is dispensed with, having regard to the nature of allegations, we have no doubt in our minds that the trial is not likely to be concluded any time soon.

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11. Be that as it may, the accusation against the appellant as contained in paragraph 18.1 of the final report reads thus:

"That, the accused Kalidas @ Sekhar @ Mani @ Thyagu @ Ramachandra @RC (A-1), being a District Committee member of the proscribed terrorist organisation CPI (Maoist) and the Commander of the Shiruvani Dalam (Squad) of CPI (Maoist) organisation, active in Tri-Junction of Kerala, Karnataka and Tamil Nadu, conspired with co-accused inside deep reserve forest of Malappuram District of Kerala, during different occasions in the year 2016, for conducting and participating in physical and arms training so as to commit terrorist acts and to wage war against the Government of India, collected arms and men and abetted waging war. Being a member of proscribed terrorist organisation CPI (Maoist) which is involved in terrorist acts and also being an in-charge of the training camp of CPI (Maoist), he along with co-accused trespassed into the reserve forest of Malappuram District in Kerala and actively participated in the physical and arms training using prohibited arms, in the period between last week of May 2016 to last week of September 2016, to strengthen the proscribed terrorist organisation CPI (Maoist) with intention to commit terrorist acts for furthering the activities of CPI (Maoist) and thereby to wage war against the Government of India."

As revealed from the extracted passage, the accusation against the appellant, in essence, is that he has participated in physical and arms training so as to commit terrorist acts and to wage war against the Government of India as also collected arms and men and abetted waging war against the Government of India. The particulars of the evidence stated to have been collected by the Investigating Agency as narrated in the written objection, if true, would make the allegations more serious. On a specific query by this Crl.A. No.443 of 2025

-: 14 :- 2025:KER:31232 court as to whether there are any allegations against the appellant in any of the cases registered against him that he participated in any armed rebellion, the answer of the learned Additional Solicitor General was in the negative. As noted in Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616, referred to by this Court in Nassar, the Apex Court has observed that a pragmatic and constitutionally sensitive approach has to be taken where an undertrial is deprived of personal liberty for an extended period and that there is no reasonable prospect of the trial concluding within a reasonable time frame. It was also observed by the Apex Court in Shaheen Welfare Assn. that where undertrials are not directly accused of engaging in any terrorist acts, but are instead booked under Section 120B IPC, or booked merely on the ground that they are found in possession of incriminating materials, a lenient view has to be taken. Similarly, as already mentioned, Section 43D(5) of the UAPA does not by itself bar constitutional courts from granting bail, especially when the continued detention amounts to violation of the rights guaranteed under Part III of the Constitution of India. In Sk. Javed Iqbal, the Apex Court has held that bail cannot be denied in such cases on the ground that the charges are serious.

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12. True, in Gurwinder Singh referred to by the learned Additional Solicitor General, the Apex Court has observed that mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail. In Gurwinder Singh, the Apex Court has referred to Union of India v. K.A.Najeeb, (2021) 3 SCC 713 and distinguished the same on the facts of that case. In other words, the observation aforesaid has to be understood as one made in the facts of that case. Gurwinder Singh cannot, therefore, be understood as one diluting the proposition of law laid down in K.A.Najeeb.

13. Paragraph 42 of the judgment in Sk. Javed Iqbal relied on by the learned Additional Solicitor General reads thus:

"42. This Court has, time and again, emphasised that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us."

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-: 16 :- 2025:KER:31232 As seen from the extracted passage, the proposition laid down is that even in a case involving interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which, liberty is an intrinsic part. No doubt, it is observed in Sk. Javed Iqbal that in the given facts of a particular case, a constitutional court may decline to grant bail. But the said observation was made to hold that merely on account of that reason, it is wrong to say that bail cannot be granted under a particular statute. The said judgment, according to us, does not in any manner, help the respondent to sustain the impugned order.

In the result, the appeal is allowed, the impugned order is set aside and the appellant is enlarged on bail on executing a bond for Rs.1,00,000/- with two solvent sureties each for the like sum to the satisfaction of the Special Court. It shall be open to the Special Court to impose such additional conditions as it may deem fit and necessary in the interests of justice. It is made clear that in the event of breach of any of the conditions, it shall be open to the prosecution to move for cancellation of the bail granted to the appellant before the Special Court, notwithstanding the fact that bail Crl.A. No.443 of 2025

-: 17 :- 2025:KER:31232 was granted by this Court. Upon such application being made, the Special Court shall consider the same on merits and pass appropriate orders in accordance with law.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

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