Crl.A.344/2016; Crl.A.657/2016; Crl.A.1058/2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938 CRL.A.No. 344 of 2016 --------------------------------AGAINST THE ORDER IN C.M.P.29/2016 IN SC 2/2011(NIA) SPL.COURT FOR NIA CASES II EKM) ## APPELLANT/PETITINER/A13: ------------------------------------- MOHAMMAD ASIF AGED 23/10, S/O.MOHAMMED KADIR, 11/13-45, NETAJI NAGAR, BEST AVERPET, KARNATAKA. (NOW IN JUDICIAL CUSTODY IN VIYYUR CENTRAL PRISON.) BY ADVS.SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI RESPONDENT/RESPONDENT: ----------------------------------------- STATE, REP. BY NATIONAL INVESTIGATION AGENCY, KOCHI. THROUGH SPL. PUBLIC PROSECUTOR NIA, HIGH COURT OF KERALA. 682031. BY SRI.M.AJAY, SPL. P.P FOR NIA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-12-2016, ALONG WITH CRL.A.1058/2016 & CRL.A.657/2016. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal Nos.344, 657 and 1058 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of December 2016 ## JUDGMENT ## **C.K.ABDUL REHIM J.,** Accused Nos.13, 11, 28 and 30 in S.C. No.2/2011 (NIA) on the files of the Special Court for NIA cases II, Ernakulam are the appellants herein, challenging 3 orders passed by that court, rejecting their applications for bail. The order in C.M.P. No. 29/2016 relating to 13[th] accused is challenged in Crl. Appeal No.344 of 2016. The order in C.M.P. No.64 of 2016 relating to 11[th] accused is challenged in Crl. Appeal No.657 of 2016. The order in C.M.P. No.1211 of 2016 relating to 28[th] and 30[th] accused is Crl.A.344, 657 & 1058/2016 : 2 : challenged in Crl.Appeal No.1058 of 2016. 2. The prosecution case is that the accused Nos.1 to 38, hailing from different states in India, namely; Jharkhand, Madhya Pradesh, Maharashtra, Karnataka, Gujarat, Uttar Pradesh, and Kerala, who are members of a banned organisation named 'SIMI' came to Thangalpara at Vagamon in Kottayam District and organised a secret training camp to impart training to fight against India, from 10.12.2007 to 12.12.2007. In the said training camp the accused were imparted training in arms and ammunition, manufacture of destructive bombs and similar to the weapons, and also underwent physical training, drill etc. with the intent to wage war against the Government of India and to disturb peace and tranquility in India by Crl.A.344, 657 & 1058/2016 : 3 : stirring up the communal feelings and promoting enmity among religions. 3. Originally the case was registered by the local police at the Mundakayam Police station, as crime No.257 of 2008. Subsequently, the investigation was taken over by the National Investigation Agency (N.I.A.) and the case was re-registered under Sections 120B, 122 and 124(A) of I.P.C. and Sections 3, 5, 10 and 13 of the Unlawful Activities (Prevention) Act (for short 'UA(P) Act') and also under Sections 25 and 27 of the Arms Act. The N.I.A. had completed the investigation and filed final report in the case. Initially the charge was laid against accused Nos.1 to 29 under Sections 120B, 122, 124A and 153A read with Section 34 of I.P.C., Sections 10(a)(i) and 13(1)(a) of the Crl.A.344, 657 & 1058/2016 : 4 : UA(P) Act and Sections 25 and 27 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act. Subsequently, final report was filed against 6 more accused for the very same offence. A further final report was filed arraying accused Nos.37 and 38 alleging the same offences and including sections 18, 20 and 38 of UA(P) Act against all the accused. 4. Through the orders which are impugned in the above appeals, the Bail Applications of the appellants were rejected by the court below. It is contended that, trial of the case is being delayed indefinitely and that there is no chance of concluding the trial in the near future, because various accused in the case are confined at different jails at various parts of the country in different states, and they Crl.A.344, 657 & 1058/2016 : 5 : were implicated in various other cases also. It is specifically pointed out that, some of the accused in this case, who are now confined in the jail at Ahemedabad are undergoing trial in more than 30 cases, trial of which were clubbed together by virtue of an order passed by the honourable Supreme Court. It is pointed out that, in order to complete trial of those cases, it will take considerable time since more than 4,000/- witnesses need to be examined. According to learned counsel for the appellants, trial in the present case can be started only after completion of the trial of those cases in Ahemdabad, and therefore there is no chance of the trial being commenced or completed within any reasonable time. 5. It is evident from the records that the appellant in Crl.A.344, 657 & 1058/2016 : 6 : Crl. Appeal No.344 of 2016 had already approached this Court in Crl.Appeal No.708/2015, challenging an earlier order passed by the trial court in Crl.M.P. No.113/2015. While dismissing the said appeal, this court observed that, on the ground that some of the accused involved in the present case are also accused in other cases in other states, it would not be proper that the appellants should be detained in jail indefinitely. The appellant has got a right to get an expeditious trial of the case. Accordingly, the court below was directed to ensure that trial of the case is commenced and completed without delay. This court further observed that, if concrete steps are not taken within six months to frame the charge, then the appellant would be entitled to approach the court below praying for granting Crl.A.344, 657 & 1058/2016 **==> picture [21 x 10] intentionally omitted <==** bail, in such situation. It is on the basis of the said liberty reserved, that the present application was moved before the trial court. 6. After dismissal of the earlier appeal (Crl. Appeal No.708 of 2015), N.I.A. had moved the court below for invoking provisions contained in Section 12 of the N.I.A. Act, for conducting sitting at Ahemedabad, wherein majority of the accused are lodged, for the purpose of framing the charge. The trial court has allowed the said petition and decided to conduct a sitting at Ahemedabad for framing charge against 26 accused, who are confined at Ahemedabad central prison. But when the said order was brought to notice of this court, a _suo-motu_ revision was registered as Crl.R.C.No.22 of 2015 and operation of the Crl.A.344, 657 & 1058/2016 : 8 : said order was stayed. Subsequently, facility for video conferencing was established in the special court for N.I.A. cases and the charge in the case was framed through video conferencing. Accordingly, the _suo-motu_ revision was also dismissed as infructuous. 7. The court below had rejected the application for bail mainly pointing out that, the appellants are not entitled to bail considering the statutory provisions in Section 43D (5) of the UA(P) Act. It was observed that, contention regarding the continued pre-trial detention and the consequential hardships and injuries, is not a matter which could be considered in view of gravity of the offences alleged and the statutory prohibitions contained in the relevant provisions. It is contended by learned counsel for Crl.A.344, 657 & 1058/2016 : 9 : the appellants that, there is no justification in denying bail considering provision of section 43D(5) of the UA(P) Act and the court below ought to have taken note of the circumstances, from which it is explicit that there is no possibility of concluding the trial within any near future. 8. While considering the issue, this court takes note of the fact that the accusations against the appellants are of very serious nature, which affects sovernity and integrity of the country and there are reasonable grounds for believing that the accusations are _primafacie_ true. The accusations are to the effect that the accused are members of a banned organisation and that they were engaged in anti - national activities to the extent of hatching criminal conspiracy against the country itself. It is also admitted that there are Crl.A.344, 657 & 1058/2016 **==> picture [28 x 10] intentionally omitted <==** other cases registered against most of the appellants. Under such circumstances, we do not find any ground to interfere with the decision of the trial court which rejected the bail, especially taking into consideration of the restrictions imposed through Section 43D(5) of the UA(P) Act. 9. Learned counsel for the petitioners placed heavy reliance on a decision of the Honourable Supreme Court in **State of Kerala v. Raneef [2011(1) KLT 242 (SC)]** . In the said decision, the Honourable Supreme Court observed that, in deciding bail applications, an important factor which should certainly be taken into consideration by the court is about the delay in concluding the trial. The court observed that, often it takes several years and if the accused is denied of bail, but is ultimately acquitted, who Crl.A.344, 657 & 1058/2016 : 11 : will restore so many years of his life spent in custody. The Honourable Apex Court posed a question as to whether Article 21 of the Constitution, which is the most basis of all the fundamental rights, has not violated in such case. But the court further observed that, of course this is not the only factor, but it is certainly one of the important factor in deciding whether to grant bail. This court takes note of the fact that **Reneef's Case** (cited supra) is an appeal filed by the State before the Supreme court for cancellation of the bail granted to one of the accused, in a case where the offence under UA(P) Act was alleged. On the facts of the said case the honourable Supreme Court observed that, even though offence under UA(P) Act was alleged against the assailants, there was no allegation that the respondent Crl.A.344, 657 & 1058/2016 **==> picture [28 x 10] intentionally omitted <==** was one of the assailants. It is specifically found that there is no _primafacie_ proof that the respondent therein was involved in the crime. Hence it is found that proviso to 43D(5) has not been violated. But on the facts of the case at hand, this court is not persuaded in any manner to arrive at a conclusion that the accusations are _primafacie_ untrue, that there exists any reasons to grant bail in violation of the restrictions contained in the proviso to section 43D(5) of the UA(P) Act. This is especially because, the acquisitions are to the effect that the appellants were participating in a camp conducted by a banned organisation to train people on the usage of arms and ammunition and on the manufacture bombs using explosive substances, in order to wage war against the nation. Crl.A.344, 657 & 1058/2016 : 13 : 10. Therefore, this court is of the opinion that the court below was right in rejecting the bail applications. In the result, the appeals fail and the same are hereby dismissed. Sd/- **C.K.ABDUL REHIM, JUDGE** Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/8.12.16_ _// True Copy //_ _PA to Judge_