JAMAL v. THE SUB INSPECTOR OF POLICE, MOOVATTUPUZHA POLICE STATION & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE** **& THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932** **CRL.A.No. 2434 of 2010()** **---------------------------------** **CRL.M.C.No.1897/2010 OF SESSIONS COURT, ERNAKULAM CRIME No.704/2010 OF MUVATTUPUZHA POLICE STATION** **....................** **APPELLANT(S)/ACCUSED NO.49 :-** **----------------------------------------------** **JAMAL, S/O. HASSAN,AGED 40 YEARS, KALAPURAKKAL HOUSE, THEKKUMBHAGAM KARA, SREMOOLANAGARAM, CHOVVARA VILLAGE.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT(S)/COMPLAINANT & STATE :-** **--------------------------------------------------------------** **1. THE SUB INSPECTOR OF POLICE, MOOVATTUPUZHA POLICE STATION.** **2. THE DEPUTY SUPERINTENDENT OF POLICE, MOOVATTUPUZHA.** **3. STATE OF KERALA REPRESENTED BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADDL.DGP SRI.P.N.SUKUMARAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011 ALONG WITH CRA NO. 2438 OF 2010 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ.** **---------------------------------Crl.A.Nos.2434, 2438, 2465, 2466, 2467, 2468 of 2010 & 44 of 2011 ---------------------------------------------Dated this the 14[th] day of January 2011** ## **J U D G M E N T** ## N.K.Balakrishnan, J. The appellant in Crl.A.No.2434 of 2010 is the 49[th] accused in Crime No.704 of 2010 of Muvattupuzha Police Station registered under Sections 143, 147, 148, 120 B, 341, 427, 323, 324, 326, 506 (ii) 201, 202, 153 A, 307 r/2 149 IPC and Sec.3 of Explosive Substance Act and Sec.15 r/w 16, 18, 18(B), 19 and 20 of Unlawful Activities (Prevention) Act, 1987. Accused Nos.43 and 48 are the appellants in Crl.A.No.2438 of 2010 and Crl.A.No.44 of 2011. Accused No.14 is the appellant in Crl.A.No.2465 of 2010. The 27[th] accused is the appellant in Crl.A.No.2466 of 2010. Accused No.3 is the appellant in Crl.A.No.2467 of Crl.A.Nos.2434 of 2010 & Connected Cases. -: 2 :- 2010. Accused No.31 is the appellant in Crl.A.No.2468 of 2010. 2. The case of the prosecution can be stated in brief, as follows : While setting question papers for the internal examination of B.Com students, Professor T.J.Joseph at New Men's College, Thodupuzha included certain questions allegedly insulting Prophet Mohamed and Islam Religion. Activists of Popular Front of India (PFI) and its political wing called Social Democratic Party of India (SDPI) became intolerant. Though appropriate legal action was taken against Prof.Joseph, the activists as mentioned above were not satisfied. Thus they conspired together to take revenge against Prof.Joseph by attacking his house and also to murder Prof.Joseph or to amputate his right palm with which the question paper was set. The intention was to strike terror. It is allegedly pursuant to the criminal conspiracy hatched at different places and different times, 7 among such activists who were identifiable persons and Crl.A.Nos.2434 of 2010 & Connected Cases. -: 3 :- later identified as accused Nos.14, 27, 28, 37, 49, 50 and 51 formed themselves into an unlawful assembly with deadly weapons like hatchet, chopper, explosives etc. and reached near the house of Prof.Joseph at Muvattupuzha in a Maruthi Omni Van bearing a false registration number. While Prof.Joseph was returning along with his sister Stella, who is a nun and their mother Elikutty aged 81 years from Nirmala Matha Church, Muvattupuzha after the Sunday Holy Mass in a Wagon R Car bearing Registration No.KL17-E-1795, the assailants intercepted the above car with the Omni Van in which the assailants reached there. The assailants got down and smashed the window panes of the car in which Prof.Joseph was travelling. They pulled Prof.Joseph out of the car, dragged him to the road and repeatedly chopped on the right palm with hatchet and thus, the right palm of Prof.Joseph was amputated and the amputated palm was thrown into the nearby compound. Prof.Joseph was also chopped at various parts of his body Crl.A.Nos.2434 of 2010 & Connected Cases. -: 4 :- with the intention to murder him. Even though his sister Stella and aged mother Elikutty attempted to rescue they were not left free but were attacked by the assailants. Salomi, wife of Prof.Joseph along with their son Midhun, hearing the hue and cry, rushed to the scene. The assailants then threw a country bomb against them, which exploded and thus created an atmosphere of terror. Not only that Midhun was lifted by the assailants and thrown down to the nearby compound lying in a lower level. When the neighbours and other people returning from the Church rushed to the scene, the assailants escaped in the van in which they reached the spot. Immediately Prof.Joseph was lifted to the hospital by the people who gathered there. His wife Salomi rushed to Muvattupuzha Police Station and gave the First Information Statement. Pursuant there to Crime No.704 of 2010 was registered alleging commission of offences under Sections 143, 147, 148, 120 B, 341, 427, 323, 324, 326, 506 (ii) 201, 202, 153 A, 307 r/2 149 IPC and Crl.A.Nos.2434 of 2010 & Connected Cases. -: 5 :- Sec.3 of Explosive Substance Act and Sec.15 r/w 16, 18, 18 (B), 19 and 20 of Unlawful Activities (Prevention) Act, 1987. The Station House Officer, Muvattupuzha conveyed information to the adjacent police stations and higher authorities and alerted them. The Sub Inspector of Police, Perumbavoor on getting information as aforesaid, while on vigil could detect the van in which the assailants were travelling. On inspection of the vehicle, the Sub Inspector noticed blood stains inside and outside the vehicle. Broken glass pieces were seen inside the vehicle. Thus, the vehicle and the driver were taken into custody. It was the first accused who was driving the van at that time. On interrogation of the first accused by the Circle Inspector of Police, Muvattupuzha, he revealed the conspiracy hatched and the brutal attack executed pursuant to that conspiracy. 3. The prosecution contends that on further investigation altogether 53 persons were found involved in the offence alleged. Crl.A.Nos.2434 of 2010 & Connected Cases. -: 6 :- 4. The prosecution gives a history of the scheming and planning. When the question papers were supplied to the students, a protest march was held by Muslim organisations on 25.3.2010 against Prof.Joseph for preparing such a question paper. On 26.3.2010, a case was registered at Thodupuzha Police Station as Crime No.327/2010 against the Professor under Sections 153A and 295 IPC. On 28.3.2010 district level conspiracy was held at Seemas Auditorium, Perumbavoor to revenge upon the Professor in which accused Nos.4, 5, 22, 29 and others also participated and they were stated to be main conspirators. On 29.3.2010, accused No.4 Younas along with accused No.16 Sikkandar, who is an auto driver, located the house of Professor and the route to his house. As entrusted by accused No.4 Younas, route sketch to go to the house of the Professor was prepared by accused No.16 and it was handed over to Younas on 31.3.2010. Accused No.16 in turn handed over that sketch to accused No.5, M.K.Nazar Crl.A.Nos.2434 of 2010 & Connected Cases. -: 7 :- along with the list of apt and able bodied men selected by accused No.4 Younas and accused No.12 from their division. On 1.4.2010, Prof.Joseph was arrested by Thodupuzha Police and was remanded to judicial custody. On 2.4.2010, accused No.4 showed the house of Prof.Joseph to accused No.3. It was pursuant to the conspiracy to set fire to the house of Prof.Joseph on the night of 4.4.2010. On 3.4.2010 also another conspiracy was hatched at Water Authority IB, Muvattupuzha, an isolated place, to set fire to the house of Prof.Joseph as directed by accused No.4. In that conspiracy, accused Nos.29, 4, 3, 27, 28, 20, 16 and others had participated. It was stated that there were several phone calls between those persons on the same day in between 6.30 AM and 1.06 PM. Subsequently, the decision to set fire to the house of Prof.Joseph was given up as directed by accused No.5. Accused No.4 accordingly informed the same to others. On 7.4.2010 Prof.Joseph was enlarged on bail. A conspiracy was again held on 4.5.2010 Crl.A.Nos.2434 of 2010 & Connected Cases. -: 8 :- under the leadership of accused No.5 and in that conspiracy they decided to attack Prof.Joseph on a very near day. On 6.5.2010 those persons decided to commit the offence, on that day itself. Accused Nos.5, 14, 27, 28, 49, 50 and 51 were stated to be the prime conspirators. Pursuant to the conspiracy on the same day, that is on 6.5.2010 itself, an attempt on the life of Prof.Joseph was made by the accused but they could not succeed in that attempt as the Professor was not available in his house. The accused persons had actually enquired to Salomi, the defacto complainant about the Professor on the pretext of collecting an article from the Professor for the Souvenir. A second attempt was made on 17.5.2010 on which day the accused went to the house of the Professor on the pretext of collecting aid from the Professor for the treatment of the child of accused No.49. Since the Professor did not come out from the house, that attempt failed. Again on 27.5.2010 accused Nos.5, 14, 27, 28, 49, 50 and 51 assembled at Muvattupuzha Municipal Crl.A.Nos.2434 of 2010 & Connected Cases. -: 9 :- Park and took a pledge to attack the Professor. Pursuant to that decision those accused persons reached the house of the Professor in Motorcycles. On that day also they could not succeed in carrying out their mission. A complaint was preferred by the Professor before DySP, Muvattupuzha regarding the earlier incident. As per the direction of DySP, police patrolling was arranged. On 15.6.2010 at 8 AM, accused No.5 met accused No.4 at Kothamangalam and entrusted Rs.1 lakh to accused No.4 in order to handover the same to accused No.3 for the purpose of purchasing an Omini van from Thrissur which was intended exclusively for the purpose of attacking the Professor. Accused No.3 approached an auto consultant for the purpose of purchasing an Omini van. An agreement was executed pertaining to the van bearing Registration No.KL-07/AH 8768. On the same day the vehicle was handed over to one Amanulla as directed by accused No.4. Subsequently accused No.5 collected that vehicle from Amanulla on the Crl.A.Nos.2434 of 2010 & Connected Cases. -: 10 :- same day. On 1.7.2010, accused Nos.14, 27, 28, 37, 49, 50 and 51 who took part in this attack assembled in the house of accused No.5 at Kunjunnikara and decided to attack the Professor in terms of the conspiracy hatched on the next day itself. Thus, on 2.7.2010 those accused persons waited near Govt. Hospital, Muvattupuzha with the Omini van fitted with false registration Number. Since they could not get any information regarding the movement of the Professor they returned. On 3.7.2010 they waited with the Omini van near KSRTC bus stand. That plan also could not be materialised. On the same day at night they again entered into a conspiracy in which the decision was taken that on 4.7.2010 after Sunday morning prayer when Professor would be returning from the Church he should be dealt with. 5. Thus, pursuant to that conspiracy on 4.7.2010 the accused persons who were actually involved in the incident left in the Omini van driven by accused No.51. On the way Crl.A.Nos.2434 of 2010 & Connected Cases. -: 11 :- accused No.14 also got into the van in front of Carmal Hospital, Ashokapuram as his wife was stated to have been admitted for delivery. Accused No.27 waited near the Nirmala College, Muvattupuzha. He was stated to be holding the weapons for the attack. He also joined. After getting information, the assailants proceeded towards Nirmala HSS, Muvattupuzha. Prof.Joseph was coming back to his house in his Wagon R Car along with his sister (Nun) and mother Elikutty. On the way the assailants intercepted the car using their Omini van and they smashed the window panes of the car, dragged the Professor out and chopped his right palm with hatchet. Further narration of the incident was also given by the learned Addl. Director General of Prosecution. 6. The appellant in Crl.A.No.2434/10 who is the 49[th] accused was arrested on 28.8.2010. It is stated that he was directly involved in the three earlier aborted attempts on the life of Prof.Joseph carried out by proceeding to the spot Crl.A.Nos.2434 of 2010 & Connected Cases. -: 12 :- on motorcycles. Those attempts happened to fail. He was directly involved in the present attack on Prof.Joseph. The allegation against him is that he smashed the window panes of the car after Prof.Joseph was pulled out from the car. This appellant also inflicted cut injury on the victim by using a chopper. The victim and witnesses were stated to have identified this appellant. The learned counsel for the appellants has also not argued much in this appeal. 7. Mahinkutty (A48) who is one of the appellants in Crl.A.No.2438/10 was arrested on 7.8.2010. This was done on the basis of the statement earlier given by accused No.4. The active association of A48 with the SDPI/PFI etc. have been stated in the report filed by the learned ADGP. It was further stated that during the course of interrogation various facts were unearthed by the Investigating Officer from this accused and other accused persons regarding the conspiracy and commission of the offence. Rasheed (A43) who is the other appellant, was arrested on 7.8.2010. That Crl.A.Nos.2434 of 2010 & Connected Cases. -: 13 :- was also done based on the statement given by accused No.4. His connection and association with the organisation and political party mentioned above have been stated in detail. It was stated that he had also actively participated in the conspiracy from the very beginning. He was a member of the team constituted by M.K.Nazar (accused No.5) for disposing the bikes used by the assailants after removing the fake number plates. It is stated that in the investigation it was revealed that he had also participated in the three aborted attempts mentioned earlier. 8. Accused No.14 who is the appellant in Crl.A.No.2465/10 was arrested on 20.8.2010. He was reported to be the Secretary of PFI, Vengola area. It is stated that he was directly involved in the three earlier aborted attempts carried out by using motorcycles and omini van and was also directly involved in the commission of the offence which took place on 4.7.2010. It was stated that the victim and witnesses have identified this accused. Crl.A.Nos.2434 of 2010 & Connected Cases. -: 14 :- There is specific allegation that even sister Stella was attacked by this accused when she had attempted to save her brother Prof.Joseph. Moreover there is also allegation that even her aged mother Elikutty was not spared by the accused as he inflicted injury to that old woman also. Further allegation is that Midhun, the son of Prof.Joseph who tried to intervene was thrown out by this accused into the nearby compound lying at a lower level. Therefore, according to the prosecution there are strong materials against this appellant also. 9. Accused No.27, the appellant in Crl.A.No.2466/10 was arrested on 7.9.2010. It is reported that this accused was also directly involved in the three earlier aborted attempts carried out by using motorcycles and omini van and also in the commission of offence on 4.7.2010. It is reported that he had taken active participation in the conspiracy held at Water Authority IB, Muvattupuzha and other places and that he was also a member of the team Crl.A.Nos.2434 of 2010 & Connected Cases. -: 15 :- constituted to destroy and set fire to the house of Prof.Joseph. The further allegation is that this accused assisted accused No.19 to prepare the location and route of residence of Prof.Joseph to carry out attack and that he had also got weapons with him for attacking the Professor. According to the prosecution this accused had used his own motorcycle in the three earlier aborted attempts. That apart it is also alleged that in the earlier attempt made on 28.5.2010 this accused and accused No.28 had entered the house of Prof.Joseph and searched for him to attack. There is also allegation that he broke the front glass of the car of the victim using a chopper. The further allegation is that he threatened the persons who reached there showing or wielding chopper and thereby prevented them from coming to the scene to save the victim. He along with accused No.37 was stated to have forcibly laid Prof. Joseph on the road and chopped off his right palm. 10. The role of accused No.3 who is the appellant in Crl.A.Nos.2434 of 2010 & Connected Cases. -: 16 :- Crl.A.No.2467/10 has also been stated in detail by the learned ADGP. It was stated that he is the Secretary of PFI, Muvattupuzha and had taken part in the conspiracy from the very beginning itself. It was stated that the Omini van was bought by him for commission of this offence using the money given by accused No.4 who received it from accused No.5. He had also taken part in the conspiracy which was hatched at Water Authority IB, Muvattupuzha on 3.4.2010 in which decision was taken to destroy and set the house of the Professor on fire and for that purpose this accused had bought 5 litres of petrol as directed by accused No.4. But that decision was subsequently given up. The report shows that this accused and accused No.36 absconded well in advance and was protected by certain persons and made certain other persons who were not actually involved in the commission of the offence to surrender before the police instead of the actual accused and thereby to beguile the investigating agency and thereafter he stayed in the safe Crl.A.Nos.2434 of 2010 & Connected Cases. -: 17 :- hideouts arranged by other accused till his arrest. The prosecution contends that sufficient materials have been collected to prove the complicity of this accused in the commission of this crime. 11. Accused No.31, who is the appellant in Crl.A.No.2468/10 was arrested on 15.8.2010. It is reported that he was an active worker of the political party and organisation referred to earlier since 2000 and was the commander of freedom parades conducted by PFI in 2006 and 2007 and had also participated in the conspiracy from the very beginning. It was stated that as directed by accused No.5 this accused had handed over the Lancer car to accused No.18 in the afternoon of 3.7.2010 particularly for the use of the assailants. The tower locations of the mobile phone used by this accused corroborated his presence and role in the criminal conspiracy in which the decision to attack Prof.Joseph was taken. It is also reported that this accused had arranged hide outs to accused Nos.3 Crl.A.Nos.2434 of 2010 & Connected Cases. -: 18 :- and 36. So many other details have also been mentioned by the learned ADGP in his report. 12. Accused Nos.43 and 48 are the appellants in Crl.A.No.44/2011. They are also the appellants in Crl.A.No.2438/10. The role of these two accused and various acts done by them pursuant to the conspiracy have already been stated earlier. 13. The learned counsel for the appellants in all these cases would submit that in the absence of any direct or substantial evidence regarding the conspiracy in which the appellants were stated to have participated, they cannot be denied bail. In this connection, the learned counsel has also relied upon certain observations made by the Apex Court when the request for cancellation of bail made by the State was considered. That accused was granted bail by this Court. That was challenged by the State by filing special leave to appeal. The allegation against that accused was that he had treated one of the injured assailants, by Crl.A.Nos.2434 of 2010 & Connected Cases. -: 19 :- suturing his wound at a place 45 kilometres away from the place of incident. The facts dealt with therein are not identical to the facts reported against each of the accused in these bail applications. The role played by the appellants in this case have already been stated in detail. It is not a case where these appellants were roped in merely for the reason that they happened to be members of the organisation or a particular party but on specified grounds supporting their active involvement in the conspiracy hatched at several places and at different times. The submission made by the learned counsel for the appellants is that the request for bail projected by accused persons other than who were actually involved in the direct attack of Prof.Joseph on 4.7.2010 may have to be separately considered and at any rate they should be granted bail. According to the learned counsel for the appellants, further incarceration of the appellants would amount to denial of human rights. This submission made by the learned counsel Crl.A.Nos.2434 of 2010 & Connected Cases. -: 20 :- for the appellants is stiffly opposed by the learned Addl. Director General of Prosecution and points out the role of each of the appellants. Even if some of them were not directly involved in the attack of Prof.Joseph on 4.7.2010, there are sufficient materials to show their complicity. The learned ADGP submits that accused No.5, who is the kingpin of the whole machination could not be arrested so far and other accused persons are also yet to be arrested. It is further submitted that the offence was committed in broad day light on the public road creating a feeling of insecurity among the public at large and thus the perpetrators could strike terror in the mind of the people. It is further submitted that the attack was planned and executed in such a manner in order to create the feeling that it would be a lesson for all such persons like Prof.Joseph and that nobody should venture to insult or say anything touching their feelings and that if anybody ventures to do so they would be dealt with in a brutal Crl.A.Nos.2434 of 2010 & Connected Cases. -: 21 :- manner. The learned ADGP also submits that the very nature of the act of chopping off the right palm of the Prof.Joseph with which he set the question papers would sufficiently show the terrorizing effect which the perpetrators had actually intended to create. The learned counsel for the appellants has stoutly refuted all these submissions. The learned ADGP has also pointed out that similar criminal appeals filed by some of the other accused as Crl.A.No.2228/10 series were dismissed by this Court as per judgment dated 23.12.2010. True, if the allegations against the appellants are different and the degree of rigour or complicity of these appellants is less than that of others, they cannot be treated like other accused who had actually participated in the crime. But here it is not so. The learned ADGP would submit that sufficient materials have already been collected to show the complicity of these appellants as well which would show the gravity of the crime committed by them and the horrifying effect and impact it had on the Crl.A.Nos.2434 of 2010 & Connected Cases. -: 22 :- peace loving persons. Their horrendous act has in fact the effect of hacking or shattering the social and secular fabric of our democracy, the learned ADGP submits. 14. It is further submitted by the learned ADGP that if the appellants are enlarged on bail, they would intimidate or terrorize the witnesses and would tamper the evidence. It is also stated that it will hamper the investigation itself since even the Investigating Officer (C.I. of Police) was threatened by the members of the group or organisation which has been mentioned earlier and that if the Police Officer himself is threatened, what can be the fate of an ordinary person who has to depose as a witness in this case is the pertinent question posed by the learned ADGP. It is further submitted that some of the other accused are yet to be arrested and some more materials are also to be collected against those accused persons and if these accused are enlarged on bail the further investigation would be stalled and it would impede the fair trial also. Since the Crl.A.Nos.2434 of 2010 & Connected Cases. -: 23 :- possibilities of the accused and their men to terrorize the witnesses and their family members is more, the learned ADGP submits that this Court should not show sympathy to the accused only because they happened to be in remand for about 90 days. A Single Judge of this Court in **Mohammed Navas A.** v. **Station House Officer** [2009(3) KHC 545] has observed in an identical matter as : “[T]he question is not whether how long a person is in judicial custody, but whether it is feasible to release him on bail in the facts and circumstances of the case. Counting of the days of detention is not the criterion to be adopted in all cases. Facts and circumstances may vary in each case. Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers. It may strike anybody at any time. Any amount of precautionary measures and security arrangements may prove futile to combat terrorism. Fundamental right to individual liberty is certainly valuable. But when it is pitted against the life and liberty of the people at large, it becomes insignificant. Terrorism affects the growth of the nation; the resources of the nation have to be utilised for combating terrorism; it could be utilised in better ways for the betterment of the people. Offences against individuals are to be distinguished from offences affecting the nation Crl.A.Nos.2434 of 2010 & Connected Cases. **==> picture [37 x 10] intentionally omitted <==** and the people at large. Parameters to be adopted in the matter of considering the plea for bail would also be different in these two types of cases. A strict approach in the latter category of cases is justified. Sympathy has no role in dealing with such cases.” We are in perfect agreement with the view taken by the learned Single Judge. 15. That apart, as per the proviso to Section 43D(5) of the UA(P) Act, 1967, the accused person shall not be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. The relevant Section can be quoted : “(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release : Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” Crl.A.Nos.2434 of 2010 & Connected Cases. -: 25 :- The learned ADGP submits that as against all the appellants herein sufficient materials have already been collected. We find, there are reasonable grounds for believing that the accusations against the appellants are prima facie true. Therefore, the appellants are not entitled to be released on bail. The appeals are accordingly dismissed. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt