M.K. Naser v Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941** **CRL.A.No.991 OF 2019** **AGAINST THE ORDER DATED 09-08-2019 IN SC 1/2015/NIA OF SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM.** **APPELLANT/ACCUSED NO.3 :** **M.K.NASER, AGED 49 YEARS, S/O KUNHAN PILLAI, HOUSE NO.VII/276, MARAGATTU HOUSE, KUNHUNNIKKARA, ALUVA, ERNAKULAM DIST.** **BY ADVS. SRI.P.C.NOUSHAD SRI.E.A.HARIS** ## **RESPONDENT/COMPLAINANT :** **UNION OF INDIA, REPRESENTED BY NATIONAL INVESTIGATION AGENCY, KOCHI, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR FOR NIA, HIGH COURT OF KERALA, KOCHI - 682 018.** **BY SRI.M.AJAY, SPL. P.P FOR NIA.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Appeal No.991 of 2019 - 2 - ## A.HARIPRASAD & N.ANILKUMAR, J J. -------------------------------------Crl.Appeal No.991 of 2019 -------------------------------------Dated this the 30th day of September, 2019. ## J U D G M E N T ## A.HARIPRASAD, J Heard Sri.P.C.Noushad, the learned counsel for the appellant and Sri.M.Ajay, the learned Special Public Prosecutor for N.I.A cases. 2. This appeal is filed by a person, who was initially the 28th accused in Crime No.204 of 2010 registered at Muvattupuzha Police Station. After the case has been split up, his rank became 3rd accused in S.C No.1/2015/NIA. The appellant, along with other accused, is alleged to have committed offences punishable under Sections 143, 147, 148, 120B, 323, 324, 341, 427, 506(ii), 201, 202, 153A, 212 and 307 r/w 149 I.P.C, Section 3 of the Explosives Crl.Appeal No.991 of 2019 - 3 - Substances Act and Section 15 r/w Sections 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 (in short 'U.A(P) Act'). 3. After investigation, the State Police filed a final report against 27 accused out of which two were absconding. Later, the National Investigation Agency ( in short 'NIA') took over investigation and filed a supplementary final report on 18-01-2013 for offences punishable under Sections 143, 147, 148, 120B, 323, 324, 326, 341, 427, 506(ii), 153A and 307 r/w 149 I.P.C, Sections 16 and 20 of the U.A(P) Act against nine accused including the appellant. It is the case that the appellant absconded ever since the occurrence till 06-11-2015. 4. In the impugned order, it is mentioned that the trial court tried 31 available accused in S.C No.1/2013/NIA and convicted and sentenced 13 accused for different offences as per the judgment dated 30-04-2015. Appeals therefrom are pending before this Court. 5. A bail application filed by the appellant was dismissed on Crl.Appeal No.991 of 2019 - 4 - 15-01-2019. That order was challenged before this Court in appeal and as per judgment dated 13-03-2019 in Crl.Appeal No.162 of 2019, this Court dismissed the appeal filed by the appellant. 6. The impugned order arises out of the second application filed by the appellant seeking bail. 7. Learned counsel for the appellant contended that this Court as per judgment in Crl.Appeal No.659 of 2019 dated 23-07-2019 granted bail to 5 th accused in SC No.1/2015/NIA by imposing conditions. According to him, the appellant also stands on the same footing and therefore the court below should have released him on bail. Further, it is pointed out that not even charge has been framed in this case and there is no reason to think that trial will commence and conclude within a reasonable time. It is also pointed out by the learned counsel for the appellant that for more than four years he is in judicial custody. Even according to the prosecution case, he has not played any overt act in the alleged incident of chopping the right palm of Professor T.J.Joseph by Crl.Appeal No.991 of 2019 - 5 - a group of assailants alleging blasphemy. 8. Learned counsel for the appellant further contended that the first accused in S.C No.1/2015/NIA is still absconding. Second accused, who surrendered on 02-08-2016 was released on bail on medical grounds on 15-09-2017. Fourth accused had surrendered last week and now he is in judicial custody. Fifth accused, who had been arrested on 12-04-2015 was released on bail on 23-07-2019 as per the judgment of this Court in Crl.Appeal No.659 of 2019. Sixth accused surrendered on 03-03-2016 and he was released on bail on 06-06-2018 as per the judgment in Crl.Appeal No.351 of 2018. It is therefore contended that there is no reason for denying bail to this appellant, who has no direct involvement in the alleged incident. 9. Learned Special Public Prosecutor appearing for NIA contended that the prosecution has a definite case that the appellant is the kingpin in the conspiracy to commit the crime and he arranged people for conducting the gruesome offence of chopping the palm of the victim on the ground of an Crl.Appeal No.991 of 2019 - 6 - alleged blasphemy. According to the investigating agency, the present appellant mobilized people at various levels for executing the nefarious plan and engaged people for various related activities. He had evaded the process of law for a long time and his antecedents do not make him eligible to claim bail at this stage of the matter. Further, it is pointed out in the counter statement filed by NIA that the appellant is the prominent leader of a militant organization and he is the mastermind of the gruesome incident, which can be qualified as a terrorist activity. It is pointed out by the Special Public Prosecutor for NIA that grant of bail in favour of fifth accused cannot be a reason for releasing the appellant on bail since they stand on different footings. 10. It is also pointed out by the Special Public Prosecutor that the agency was under an impression that grant of bail to the fifth accused was only an interim arrangement. From the tenure of the order, it appears that a regular bail has been granted to him. However, that is a matter to be decided Crl.Appeal No.991 of 2019 - 7 - in an appropriate proceedings. 11. Learned counsel for the appellant contended that Section 43D(5) of U.A (P) Act, which restricts grant of bail in cases investigated by NIA has been considered by the Supreme Court in Lt.Col.Prasad Shrikant Purohit v. State of Maharashtra ((2018)2 SCC (Cri)661) and held as follows. “ 30 . Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. 31 . At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of Crl.Appeal No.991 of 2019 - 8 - the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.” 12. It is further contended by the learned counsel for the appellant that the stand taken by the investigating agency that the appellant cannot be released on bail by virtue of the interdictions in the proviso to sub-section (5) of Section 43D is legally unsustainable. 13. Per contra, learned Special Public Prosecutor for NIA contended that the judgment passed by the Supreme Court in Lt.Col.Prasad Shrikant Purohit's case (supra) cannot be applied to this case as the facts are entirely different. According to him, the Supreme court granted bail to the accused in that case on finding that the investigating agency falsely procured evidence to rope him in a serious offence. But in this case, according to the learned Special Public Prosecutor, the materials will eloquently speak against the appellant Crl.Appeal No.991 of 2019 - 9 - that he is the kingpin of the incident. 14. It is further contended by the learned Special Public Prosecutor that the appellant cannot get over the observations in Annexure A order passed by this Court in Crl.Appeal No.162 of 2019 wherein the appellant's application for bail was turned down. In paragraph 10, following observations are made by this Court : “ 10. It appears that the appellant (third accused) was the key instigator and conspirator in attacking Prof.T.J.Joseph for holding him responsible for blasphemy in setting a question paper for college examination. The conspiracy resulted in the Professor being attacked and his right palm being chopped. It is revealed from the investigation that the appellant/third accused along with K.A.Najeeb (fifth accused) had made arrangements as stated above. He had also made arrangements for financing the attack with some of the co-accused and it is as per his instructions that the Crl.Appeal No.991 of 2019 - 10 - original accused Nos.2 and 12 had went on to purchase the Van. He had also arranged the original accused No.29, Kasim, for fixing fake number plate in the Van. There are also indicators regarding involvement of this accused in obtaining mobile phones and sim cards on 03-07-2010 for execution of the assault. All these matters were considered by the learned Special Judge while rejecting the application for bail. The fact that the appellant was absconding for a fairly long period and successfully evading his arrest, indicates that he is capable of going underground again on being released on bail. The fact that he had surrendered before the Police is not a mitigating circumstance for granting of bail. The roles of this accused and the fifth accused, whose application for bail was rejected by this Court, are almost similar. The Prosecutor would rather project this accused as the kingpin behind the conspiracy. The fact that the judgment in the parent case states regarding lack of evidence with respect to the Crl.Appeal No.991 of 2019 - 11 - conspiracy at certain places, will also not extenuate the accusation, for this accused to take advantage of. The Prosecutor has undertaken to expedite the trial and in case there are changed circumstances which warrant this accused to apply for bail again, this rejection will not stand as embargo. With these observations, we dismiss this Criminal Appeal.” 15. It is therefore argued that the appellant without showing any change in the circumstances is not entitled to get bail at this stage of the matter. It is also pointed out by the learned Special Public Prosecutor that records in the case have been sent back to trial court after releasing the convicted accused persons on bail and there is no hindrance in starting trial. It is the submission that this is also a circumstance against the appellant's claim for bail. 16. Relying on Younus Aliyar v. The Sub Inspector of Police (2016 (3) KLT 877), a Full Bench decision of this Court, it is contended by the Crl.Appeal No.991 of 2019 - 12 - learned Special Public Prosecutor that the following principles declared by the Full Bench, if considered, would show that without change of circumstances the appellant cannot claim bail as of right. In paragraph 8, following propositions are laid down : "8. In view of what we have stated above, we answer the reference as hereunder: (i) When the N.I.A. Court or the appellate court dealing with an appeal under S.21 of the N.I.A. Act comes to an opinion that there are reasonable grounds for believing that the accusation against the accused person is prima facie true on the basis of the perusal of the case diary or the report made under S.173 of the Code, the same is not liable to be overlooked while dealing with a subsequent bail application or an appeal, unless there are further materials or circumstances during the course of investigation as is discernible from the case diary of a case where investigation is going on and where the entire materials, which may include Crl.Appeal No.991 of 2019 - 13 - availability of materials in that portion of the case diary that was looked into in the bail application already decided. Therefore, when a subsequent bail application is filed, during the course of investigation, the entire case diary can be looked into afresh to consider the materials and circumstances in the case diary as presented for consideration at the hearing of the subsequent bail application, including any material therein which was left unconsidered in the earlier round. We answer the reference as aforesaid. (ii) In cases where a final report has been placed in terms of S.173 of the Code and when a bail application or an appeal has been considered on the basis of such report to hold that there is a prima facie case to exclude grant of bail in terms of the proviso to sub-s.(5) of S.43D of the U.A.P. Act, a subsequent consideration would stand excluded. However, in cases where further investigation is permitted in terms of sub-s.(8) of S.173 of the Code and a further report comes and is treated as Crl.Appeal No.991 of 2019 - 14 - the final report, for the purpose of sub-s.(2) of S.173, that could also be the subject of a fresh scrutiny for grant of bail. In cases of further investigation in terms of sub-s.(8) of S.173, the course of such investigation may also generate bail applications on materials that come, including materials in case diary during such investigation. (iii) The aforesaid principles are in furtherance of the rights of accused as protected in terms of the judgments of the Honourable Supreme Court interpreting Arts.21 and 22 of the Constitution of India. The reference having been answered as above, list this matter before the Division Bench as per roster." 17. Placing reliance on Jamiruddin Ansari v. Central Bureau of Investigation and Another (AIR 2009 (SCW) 4213) , it is argued by the learned Special Public Prosecutor that mere passage of time in custody cannot be taken as a ground for inferring a change in circumstances. 18. It is contended by the learned Special Public Prosecutor that the Crl.Appeal No.991 of 2019 - 15 - normal rule, jail is an exception and bail is the rule, may not apply in the case of special enactments, where rights of the accused are curtailed by express provisions in the statute itself. To reinforce this submission, reliance is placed on State of Madhya Pradesh v. Kajad (AIR 2001 SC 3317) . The Supreme court was considering the scope of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein it observed thus : “ The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the Crl.Appeal No.991 of 2019 - 16 - accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.” 19. After hearing the learned counsel on both sides, we are of the view that the appellant could not establish any change in circumstances enabling him to claim bail. If we consider the case against the 5th accused, who has been released recently by this Court on bail, and that against the appellant, we do not find any reason to mechanically adopt the same yardstick to grant bail to the appellant, ignoring the clear differences in the nature of allegations. In the result, the appeal is dismissed. The trial court shall try to expedite trial considering the fact that Crl.Appeal No.991 of 2019 - 17 - the case is an old one and the accused is in custody for a long time. It is made clear that the observations in this judgment will not be a bar for the appellant to make a further bail application, if he establishes change in circumstances and if he is otherwise legally entitled to. All pending interlocutory application will stand dismissed. A. HARIPRASAD, JUDGE. ## N.ANILKUMAR, JUDGE amk Crl.Appeal No.991 of 2019 - 18 - ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE-I A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.APL.NO.162/2019 DATED 13-03-2019. ANNEXURE-II A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.APL.NO.659/2019 DATED 23/07/2019.** **RESPONDENT'S ANNEXURES : NIL.**