Mansoor s/o Aliyar v. Deputy Superintendent of Police, National Investigation Agency (NIA), Kochi Branch Office & National Investigation Agency, Kochi Branch Office

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 CRL.A.No. 214 of 2018 (B) AGAINST THE ORDER DATED 31.01.2018 OF THE SPECIAL COURT FOR NIA CASES, ERNAKULAM IN Crl.M.P.No.29/2018 IN S.C.No.02/2017/NIA APPELLANR/PETITIONER/ACCUSED No.4 : - -------------------------------------------------------------- MANSOOR, S/O ALIYAR, AGED 48 YEARS, KANHIRATHUNKAL HOUSE, KUNNATHERI, CHOORNIKKARA, ALUVA, ERNAKULAM DISTRICT. BY ADVS.SRI.P.K.MOHAMED JAMEEL SRI.P.C.NOUSHAD RESPONDENTS/COMPLAINANTS : - ---------------------------------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, NIA, KOCHI BRANCH OFFICE. 2. THE NATIONAL INVESTIGATION AGENCY, KOCHI BRANCH OFFICE, RESPONDENTS 1 & 2 REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, NATIONAL INVESTIGATING AGENCY, HIGH COURT OF KERALA, ERNAKULAM. R1-2 BY ADV. SRI. M. AJAY, SPECIAL PUBLIC PROSECUTOR FOR NIA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2018, THE COURT ON 11.04.2018 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------Crl.Appeal No.214 of 2018 -----------------------------------------------Dated this the 11[th] day of April, 2018 ## J U D G M E N T ## **Somarajan, J.** Against the order dated 31.01.2018 of the Special Court for NIA cases, Ernakulam, in Crl.M.P.No.29/2018 in Sessions Case No.02/2017/NIA, the fourth accused came up with this appeal. 2. The impugned order was passed on a bail application moved by the appellant. The learned Sessions Judge dismissed the application by its order dated 31.01.2018, against which this appeal is preferred. 3. The appellant is the fourth accused. The offences alleged against the accused are punishable under Sections 148, 341, 427, 324, 326, 506(ii), 201, 202, 212, 153A, 307 read with Section 120B of the Indian Penal Code, Sections 3 and 6 of the Explosive Substances Act and Sections 16(1)(b), 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. The allegation is in connection with the attack alleged to have been unleashed on one Professor T.J.Joseph at 8.00 a.m. on Crl.Appeal No.214 of 2018 2 04.07.2010, while he was returning to his house from church after the Sunday Mass in his Maruti Wagon-R Car bearing Registration No.KL-17-E 1795, by accused Nos.1 to 7 by intercepting and causing damages to the Maruti Wagon-R Car. They took the victim forcefully out of the car and unleashed attack on him with choppers, knife and a small axe. The prosecution version is that the attack on the victim was the result of a conspiracy hatched by the accused persons in connection with the preparation of question paper for the internal examination for second semester B.Com students for the academic year 2009-2010, wherein there were some derogatory remarks against Prophet Muhammed. The accused are active workers of Popular Front of India (PFI)/Social Democratic Party of India (SDPI) having links with the organization of Students Islamic Movement of India (SIMI) proscribed under the Unlawful Activities (Prevention) Act, 1967. After the investigation, the State Police filed a final report against 27 accused persons. As per the direction of Ministry of Home Affairs, Government of India, the Crl.Appeal No.214 of 2018 3 investigation was taken over by NIA and re-registered the case as R.C.No.01/2011/NIA/DLI. Further investigation was conducted and a supplementary final report was filed against nine accused persons and it was taken on file of the Special Court for NIA Cases, Ernakulam in S.C.No.01/2013/NIA and the judgment was pronounced on 30.04.2015. The case as against the absconding accused was refiled and NIA conducted further investigation and a supplementary final report was filed which was taken on file as S.C.No.2/2017/NIA in which the present appellant is shown as the fourth accused. The fourth accused was arrested on 05.08.2017 and thereafter he is in judicial custody. 4. The allegation levelled against the appellant is that he participated in the three criminal conspiracy meetings held at Seemas Auditorium, Perumbavoor on 28.03.2010, at the residence of CW281 on 03.07.2010 and at the house of A20 Anas on 04.07.2010. 5. The main contention raised by the appellant is that there is no specific overt act alleged against the appellant. 4 Crl.Appeal No.214 of 2018 The Special Court for NIA cases disbelieved the allegation of conspiracy meetings in its judgment dated 30.04.2015 in Sessions Case No.01/2013/NIA. The bail application was strongly opposed by the prosecution mainly on the reason that the offence was committed on 04.07.2010, but they could not apprehend the appellant till 05.08.2017 due to the absconding for a period of about 7 years. It was also alleged that in the trial of Sessions Case No.01/2013/NIA, about 100 witnesses turned hostile. The first accused, an active worker of the Popular Front of India and the then District Secretary, was sitting behind the curtain and participated in the conspiracy meetings held at three different places, which has resulted in the commission of offence on 04.07.2010. 6. The Special Court for NIA Cases, Ernakulam had pronounced judgment on the first supplementary report and rendered a finding disbelieving the conspiracy alleged, based on it, it was contended that there is no evidence to show that the conspiracy as alleged by the prosecution and the only allegation raised against the present appellant is based on the Crl.Appeal No.214 of 2018 5 charge of conspiracy. The learned Judge of the Special Court rejected the said contention relying on the legal position settled by a Full Bench of this Court in **Moosa v. Sub Inspector of Police** [2006 (1) KLT 552]. Even an acquittal of a co-accused may not have much impact on the trial of the remaining accused persons. But in the matter of conspiracy, being an offence involving more than one accused, the legal position may be different on satisfying certain conditions. But, we are afraid, it is not at all necessary to have a discussion on the legal impact of finding on conspiracy in a judgment on a later proceeding initiated against the remaining accused persons, especially at the time of consideration of bail application. 7. The first report under Section 173(2) Cr.P.C. was submitted against 27 accused persons in connection with the very same incident by the State Police. It is thereafter, as per the directions of the Ministry of Home Affairs, Government of India, NIA took over the investigation and re-registered the case as R.C.No.01/2011/NIA/DLI and a supplementary charge 6 Crl.Appeal No.214 of 2018 was filed against nine accused persons. Later on, on 01.06.2017, another supplementary final report was submitted in which the appellant herein is the fourth accused. After the submission of the first supplementary report in R.C.No.01/2011/NIA/DLI, the case was taken on file in S.C.No.01/2013/NIA and the judgment was pronounced on 30.04.2015. It is thereafter on 01.06.2017 a second supplementary final report was filed, in which the present appellant is the fourth accused. It was submitted by the learned counsel for the appellant that he was not cited as an accused in the earlier report submitted under Section 173(2) Cr.P.C. due to paucity of evidence. But, in the second supplementary report, nothing was included as the evidence which was collected subsequent to the submission of the earlier report under Section 173(2) Cr.P.C. It was also submitted that the scope of further investigation and submission of a supplementary report under Section 173(8) Cr.P.C. would arise only when the investigating officer/agency obtains further evidence, oral or documentary. But, in the 7 Crl.Appeal No.214 of 2018 second supplementary report, nothing was mentioned with reference to further evidence, either oral or documentary, obtained subsequent to the submission of the first supplementary report, and hence, the earlier position of the prosecution while submitting the first supplementary report without including the appellant herein in the array of accused due to paucity of evidence, remains unchanged even at the time of submission of the second supplementary report. We are unable to accept this contention simply for the reason that Sections 173(2) and 173(8) Cr.P.C. have to be read and appreciated as person centric in the commission of an offence and not as offence centric in relation to the persons involved. In other words, in connection with the commission of an offence there can be separate final report against different accused persons. The application of Section 173(8) Cr.P.C. would come into play only when the investigation obtains further evidence, either oral or documentary, against the person arrayed as accused under a report submitted under Section 173(2) Cr.P.C. In other words, unless there is a Crl.Appeal No.214 of 2018 8 report under Section 173(2) Cr.P.C. against a particular accused, there cannot be application of Section 173(8) Cr.P.C., more precisely there should be further evidence as against any of the accused against whom a report under Section 173(2) Cr.P.C. was submitted. A subsequent report against a person who is not arrayed as an accused in the earlier report under Section 173(2) Cr.P.C., hence cannot be considered as one under Section 173(8) Cr.P.C. and hence the question of further evidence, either oral or documentary, would not arise in the instant case, since the appellant was arrayed as accused only in the second supplementary report and hence it should be a report submitted under Section 173(2) Cr.P.C. The fact that the trial was conducted and the judgment was pronounced based on the earlier supplementary report would support that the second supplementary report submitted was not under Section 173(8) Cr.P.C, but under Section 173(2) Cr.P.C. So, no question of obtaining further evidence would arise in the instant case. Crl.Appeal No.214 of 2018 9 8. But, the fact that earlier a report was submitted, the trial was conducted and the judgment was pronounced without arraying the appellant as an accused and his name was included as fourth accused in the second supplementary report would be relevant to the extent of reasons, if any, available why his name was not included in the first supplementary report submitted after the investigation was taken over by NIA. The appellant was arrested on 05.08.2017 and languishing in jail for the last more than 6 months. It was also brought to our notice that bail was granted to some of the accused. It is also submitted that the allegation of absconding is not true though it was disputed by the prosecution by producing certain documents. Taking note of all these facts, we are of the view that no purpose will be served by detaining the appellant in judicial custody and hence bail is granted, but subject to the following conditions: (i) The appellant shall execute a bond for Rs.5,00,000/- (Rupees five lakhs only) with two solvent Crl.Appeal No.214 of 2018 10 sureties each for the like sum to the satisfaction of the learned Special Judge. (ii) The appellant shall not leave the territory of the village in which his residential house is situated, except for the purpose of reporting before either the Investigating Agency or the Special Court. (iii) The appellant shall not, in any way, tamper with the evidence involved in the case and shall not intimidate or influence, either directly or indirectly, any of the witnesses involved in the case. (iv) The appellant shall not involve in any such offence in future and shall not use any means of communication including mobile phone for any such purpose. The appellant shall not use mobile phone or any instruments of communication belonging to any other person during the bail period. (v) The appellant shall not, in any way, make any open declaration, press meeting, media/channel discussion or discussion or communication through social media, either Crl.Appeal No.214 of 2018 11 directly or indirectly, and shall not indulge in any open discussion/seminar, during the period of bail. (vi) The appellant shall report before the Investigating Agency or any Police Officer, as directed by the Investigating Agency in writing, on all Mondays and Thursdays in between 8.00 and 10.00 a.m. (vii) Violation of any of the aforesaid conditions would visit with the consequences as laid down in **P.K.Shaji v. State of Kerala** [AIR 2006 SC 100] and the Investigating Agency is at liberty to approach the Special Judge, NIA in that behalf. Criminal Appeal is allowed accordingly. Sd/- ## **A.M.SHAFFIQUE (JUDGE)** Sd/- ## **P. SOMARAJAN (JUDGE)** DMR/-