Delhi District Court
State vs Sayed Mohd. Ahmed Kazmi on 3 April, 2012
FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI FIR No.: 4/2012 U/s 16/18 Unlawful Activities (Prevention)Act, 3 Explosive Substance Act, 307/323/427/120 B IPC PS Special Cell State V/s Sayed Mohd. Ahmed Kazmi 03.04.2012 Present: Shri Rajiv Mohan, Ld. Special PP for the State alongwith Addl. DCP Sanjeev Kumar Yadav and Inspector Lalit Mohan Negi in person. Shri Gajinder Kumar, Ld. Counsel for accused Sayed Mohd. Ahmed Kazmi/applicant. O R D E R:
This is the first bail application filed on behalf of accused Sayed Mohd. Ahmed Kazmi (hereinafter referred to as "applicant"). Reply to the bail application has been filed. I have heard both the sides and perused the investigation file as also the report filed by IO in this application. The facts of the case relevant for the purpose of disposal of this bail application are that on 13.02.2012 an Israeli Embassy vehicle (Toyota Innova), carrying an Israeli woman, wife of an Israeli Diplomat was targeted at about 3.15 PM, at Aurangzeb RoadSafdarjung Road crossing, by causing explosion through some "Magnetic Explosive Device" after sticking the same to the car. FIR "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 1 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) No.4/2012, U/s 307/323/427/120 B IPC & 3 Explosive Substances Act in this regard was registered at PS Special Cell, New Delhi. Sections 16/18 of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as "UAP Act") were added in the case.
2. On 06.03.2012 applicant was arrested in the case on the allegations that he had conspired with some foreign nationals, to conduct terrorist strike at the aforesaid vehicle of Israeli Embassy and had further facilitated the foreign terrorists in carrying out the said strike. The applicant was remanded to police custody and thereafter he is presently in judicial custody in this case.
3. The learned counsel for the applicant has very vehemently argued that the very fact that investigating agency has not sought further police custody remand of the applicant reveals that whatever information he had with regard to this case, he has already disclosed to investigating agency and is no more required for investigation. It is further argued that the applicant has been arrested in the matter on false charges of conspiring and facilitating the accused persons, who carried out the strike, as there is no evidence in this regard. It is further submitted that the applicant is a renowned journalist and is well known; respected face among the masses, community, professional and private circle, including press circle, within and outside India. He worked as "Urdu News Reader" for Doordarshan. He was sent to Iran to cover the Iraq "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 2 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) war and was awarded "Best Reporter" award for his extra ordinary work in dangerous circumstances. He has been a vocal intellectual and has held conferences and seminars on the topics of "Relation of Western Countries with Iran". He has been an astute writer, speaker to various news channels viz. NDTV, Doordarshan, IBN and is a "Columnist" for various newspapers such as, "Sahafat", "Salar (Bangalore)", "Kashmir Uzma (J&K) Tashkin"
"Awadhnama", Quomi Tanzim" and others. He has been doing assessment of developing political scenario in international affairs and as such has been visiting as a "senior journalist" to several foreign countries and undertaking his reporting work. He runs his own magazine and has been the news reader for Iran Radio for several years and has further been providing news reading services in Hindi language. He had visited Iran in the month of June' 2011 as a special invitee to the death anniversary of Shri Ayatollah Khomeini. It is further argued that the applicant neither has acquaintance with nor has any financial or personal interaction of any nature with the terrorists who conducted the strike and as such, there is no question of applicant facilitating them in such strike. During his police custody remand, nothing incriminating has been recovered from him, showing his involvement in this case. He has fully cooperated with the investigating agency. He has deep roots in society and there are no chances of his absconding or fleeing from justice. The investigation qua applicant which remains in the matter is only technical for which the presence of applicant is not required.
"State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 3 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012)
4. Learned counsel for the applicant has referred to the provisions of Section 437 (1) (i) Cr.P.C, to show that applicant at the most is accused of an offence which could be punishable with imprisonment for life which does not include awarding life imprisonment, if convicted and as such, he is entitled for bail. Reliance has been placed upon the judgment passed by the Hon'ble Delhi High Court in cases reported as, "ILR (2004) (1) Delhi 261"
titled as, "State V/s B.B Singh and Ors." and "AIR 1996 SC 940", titled as, "State of Maharashtra V/s Jugamandir Lal", to which I will advert to a little later. Further, reference has been made to the recent judgment of Hon'ble Supreme Court in case reported as, "2012(1) SCC Page 40", titled as, "Sanjay Chandra V/s CBI", to show that bail is the rule and jail is an exception and denying bail to the applicant solely on the ground of seriousness of the offence and deep rooted conspiracy would be travesty of justice as that would amount to punishment without trial. The reliance has also been placed upon the judgment titled as , "State of Kerala V/s Ranif" (Criminal Appeal No.3/2011, decided by Hon'ble Supreme Court on 03.01.2011); judgment reported as, "1988 (3) SCC 609", titled as, "Kehar Singh & Ors. V/s State of Delhi"; "2005 (11) SCC Page 600", titled as, "State (NCT of Delhi) V/s Navjot Sandhu" and order dated 29.05.2009, passed in "Crl. Revision Petition No.497/2008", titled as, "Saloni Arora V/s State" to bring home the point that before alleging the offence of conspiracy against the applicant there has to be an agreement between him and the "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 4 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) assailants and if there is no evidence of any agreement, then he cannot be saddled with the said charges. It is further argued that even if there is evidence to the effect that the applicant had talked to some of or any of the assailants at or around the date of strike, then for want of actual contents of the mobile phone conversation the presumption of conspiracy cannot be raised against him.
5. It is further argued that even if there is a fleeting evidence giving rise to the suspicion that the applicant had the knowledge about the incident and even his tacit approval thereto, the same cannot take the place of legal proof against him. It is further argued that though the alleged conduct of the applicant may not be above board, yet the court cannot condemn him in the absence of sufficient evidence pointing unmistakably to his guilt. On the strength of "Raneef's" case (supra), it is argued that from the material so far collected by the investigating agency in the matter, at the most it could be said that the applicant is liable for offences punishable U/s 201/202 IPC, as he failed to give information of the crime to the police which are bailable offences. In the end, it is argued that further investigation in the matter and subsequent conclusion of the trial is going to take long time and the applicant cannot be made to remain in jail for all this time and as such, he is entitled for bail.
"State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 5 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012)
6. Per contra, learned Special PP for State has very vehemently argued that the interpretation of Section 437 (1) Cr.P.C propounded by the learned counsel for the applicant is not tenable in the eyes of law, as this Section mandates that persons against whom there are clear and reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, then he shall not be released on bail. As such, this Section includes all those offences where punishment could be upto imprisonment for life or death and cannot be confined to only those sections where punishment is either life imprisonment or death alone. To supplement this argument, reference has been made to Sections 121, 302 and 364 A IPC. In Sections 121 and 302 IPC, the Legislature has used word "punished", whereas in Section 364A IPC, the word used is "punishable". It is argued that had the intention of Legislature been to cover the cases for which the punishment could be upto death or life imprisonment, two different expressions would not have been used in different sections. A plain reading of the aforesaid three sections suggests that for offences U/s 302 and 121 IPC, the court convicting the accused has no discretion but to award either death or imprisonment for life, whereas U/s 364A IPC punishment less than imprisonment for life can be awarded. Here the offences invoked against the applicant interalia are 307 IPC and Sections 16 & 18 of UAP Act, where the punishment provided is "may extend to imprisonment for life" and as such, convicting court is not debarred from imposing life imprisonment. The "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 6 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) reference to "B.B Singh's" case (supra) by the learned counsel for the applicant is of no help to him as in the said case, the Hon'ble High Court was considering the time period for filing the chargesheet, as contemplated U/s 167 (2) Cr.P.C. In "Jugamandir Lal's" case (supra), the Hon'ble Supreme Court had considered the distinction between word "punishable" and "punished" with regard to the sentence of imprisonment passed at the time of conviction in relation to the punishment provided U/s 3 (1) of Suppression of Immoral Traffic of Women & Girls Act, 1956 and the Hon'ble Supreme Court held that it was impossible to construe that by the mere use of word "punishable", a discretion was given to the court in the matter of determining the nature of sentence to be passed in respect of contravention of the said provision and further held that the expression "punishable" means, "liable to punishment" which only means that a person who has contravened a penal provision will have to be punished and that can never be construed to mean that he can be let off with payment of fine only". I agree with the arguments of learned Special PP for the State in this regard. The applicant as such cannot claim the bail as a matter of right.
7. It is next contended by the learned Special PP that before enlarging the applicant on bail, this court has to form an opinion that there are reasonable grounds for believing that the accusations against the applicant are prima facie true and the formation of said opinion is in addition to the "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 7 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) restrictions imposed upon this court for not granting bail, as contemplated under the provisions of Cr.P.C. The case diaries have been produced in court for the perusal of this court. The learned Special PP has hastened to add that since investigation in the matter is at a crucial stage, where the evidence is being collected through the help of international police, the investigation is also contemplated in some foreign countries and disclosure of the material collected during investigation at this stage can hamper the further investigation and as such, a prayer has been made to this court that this court may not discuss the said evidence in this order. I agree with the submissions of learned Special PP that this case has international ramifications and the investigation is at a very crucial stage. Suffice it to say at this stage that on the basis of Call Detail Records (CDRs) of the mobile phone recovered from the applicant and the statement of witnesses, it is clearly apparent that the basis of allegations against the applicant of conspiring with the actual assailants are there, which prima facie show that he had a role to play in this terrorist strike. This court cannot loose sight of the fact that when the investigation is for offences under a Special Statute and that Statute contains specific provisions for dealing with matters arising there under, including the application for grant of bail, these provisions cannot be ignored while dealing with such applications. This court has an onerous duty of forming an opinion at this stage, on the basis of material so far collected by the investigating agency that there are reasonable grounds for believing that the accusation against the applicant is prima facie true and the said satisfaction is not subject "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 8 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) to the limitation imposed U/s 437 Cr.P.C, but is in addition there to. I will consciously not discuss the entire material collected by the investigating agency against the applicant, however, from the perusal of the material it is apparent that the applicant was in touch with the assailants, he probably got money in relation to this conspiracy as well, for which the Enforcement Directorate has already issued Notice to him and his wife and the said proceedings are going on before appropriate forum. Further, the vehicle stated to be used by the assailants for raking the Israeli Embassy was recovered from the residence of applicant. As per the provisions of Section 43 (D) of UAP Act, the investigating agency is entitled to investigate the matter even upto the period of 180 days from the day of arrest of the applicant. A perusal of Sections 16 & 18 of UAP Act reveals that wide amplitude has been given to these sections in reference to terrorist acts; conspiracy in relation thereto; attempt; abetment; advocacy; advice and even facilitation to such crime.
8. The facts of "Raneef's" case (supra) are not applicable in the facts of this case as in that case the organisation namely PFI was not even a banned outfit and there had not been any terrorist activity in that case which could be imputed to the accused in that case. As regards the actual details of the conspiracy between the applicant and the actual conspirators, again this is not the stage to discuss the same in detail. The judgments referred to by the learned counsel for the applicant in "Kehar Singh's" and "Navjot Sandhu's"
case (supra) were considered by the Hon'ble Supreme Court at the stage of "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 9 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012) final appeals and by then the entire material collected by the investigating agency was there before the court, whereas here the investigation still continues.
9. The observations made in "Saloni's case" (supra) are not relevant at this stage, as in this case, the investigation is still in progress and during investigation the material collected so far unerringly discloses at this stage that the applicant was in touch with some of the terrorists who had planned strike in three countries simultaneously upon the diplomats of a particular country.The Hon'ble Supreme Court in "Crl. Appeal No.179/2007", titled as, "Sidhartha Vashisht @ Manu Sharma V/s State (NCT of Delhi)", decided on 19.04.2010, has been pleased to held in paragraphs 93 and 96, which is worth reproducing:
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93. The evidence of the telephone calls in the present case is admissible under Sections 8 and 27 of the Indian Evidence Act.
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96. The above phone call details show that the accused were in touch with each other which resulted in destruction of evidence and harboring. Thus, the finding of the trial court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence. The details of the calls made by the various accused to one another are available in Ex.PW66/B, Ex.PW66/D and Ex.PW66/C". xxxxx "State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 10 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012)
10. There is further evidence that one of the assailant, who was arrested in a different country had applied for Indian Visa simultaneously with one of the accused persons who is suspected of having given effect to the actual strike in this case; but the one who was arrested in a different country did not come to India and had rather moved to another country. The other terrorists who have been arrested in other countries were in touch with each other through applicant.
11. Even "Sanjay Chandra's" case (supra) is of no help to the applicant, as the Hon'ble Supreme Court after discussing the law on the point of bail has put a word of caution for the courts below that each case has to be decided on its own merits and it has been categorically held therein that the severity of the punishment prescribed under the law for the offence complained off and the gravity of offence have to be taken into consideration simultaneously at the time of consideration on bail and the court at that time has to make a balance between the competing factors.
12. I have meticulously perused the case diaries which have been produced in court by the Special Cell of Delhi Police. The arugment of learned counsel for the applicant that the conduct of the applicant was not that of a person with guilty mind in not destroying his laptop and other material is of no help to him at this stage in the teeth of other overwhelming evidence against him.
"State V/s Sayed Mohd. Ahmed Kazmi" ("Order on Bail Application: Dismissed") Page 11 of 12 FIR No.4/2012: U/s 307/323/427/120B IPC, 16/18 Unlawful Activities (P) Act & 3 Explosives Substance Act: PS Special Cell (Date of Order: 03.04.2012)
13. I further find substance in the argument of learned Special PP for State that in view of the observations made by the Hon'ble Supreme Court in case reported as, "AIR 2001 SC 1444", titled as, "Prahlad Singh Bhatti V/s Govt. of NCT of Delhi" that the Magistrate should generally refrain from considering the application U/s 437 Cr.P.C when the offence complained off is punishable with death or imprisonment for life.
14. In view of the above discussion and considering the gravity of offences, the severity of punishment prescribed under the law for such offences, the stage of investigation and the large scale international ramifications of the investigation, I am not inclined to admit applicant on bail at this stage. The application for bail is accordingly dismissed.
Dasti.
Dictated in the open court (Vinod Yadav)
on 03.04.2012 Chief Metropolitan Magistrate:
Delhi
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