Noor Muhammed v. State of Kerala and The Station House Officer, Town South Police Station, Palakkad District

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 8856 OF 2023 ``` ``` CRIME NO.1989/2021 OF PALAKKAD TOWN SOUTH POLICE STATION, ``` ``` PALAKKAD ``` ``` ARISING FROM BAIL APPL.NO. 2408/2023 OF HIGH COURT OF KERALA PETITIONER/S: ``` ``` NOOR MUHAMMED AGED 31 YEARS S/O.SHAHUL HAMEED, NAVAKKODE, KODUVAYUR, PALAKKAD DISTRICT, PIN - 678501 BY ADVS. SUNNY MATHEW ANOOJ.J ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER TOWN SOUTH POLICE STATION, PALAKKAD DISTRICT, PIN - 679101 BY ADVS. SRI.GRASHIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION. ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.12.2023, THE COURT ON 04.01.2023 PASSED THE FOLLOWING: ``` B.A. No.8856 OF 2023 2 ## ORDER The petitioner is the 11[th] accused in Crime No.1989/2021 of Town South Police Station, Palakkad. The offences alleged against the petitioner and the other accused are under Sections 120B,143,144,147,148,341,302,109,115,116,118,201,212,465,471 r/w.149 of IPC and also under Section 27(3) r/w. Section 7(a)(b) of the Arms Act. 2. The crime was registered in connection with the murder of one Sanjith, a member of Rashtriya Swayamsevak Sang (RSS), on 15.11.2021 at 8.45 p.m. The prosecution case is that, at the relevant time, when the deceased was travelling on a motorcycle along with his wife, accused Nos.1 to 5 came in a Maruti 800 car and rammed the said motorcycle. Thereafter, accused Nos.1 to 5 attacked the deceased with swords and sticks, thereby inflicting severe injuries on him, which led to his death. The crime was initially registered against five unknown persons. During the course of the investigation, it was revealed that the murder was committed in a pre-planned manner by members of an organization, viz. B.A. No.8856 OF 2023 3 Popular Front of India (hereinafter referred to as ‘PFI’), which the Government of India later banned. During further investigation, the petitioner was found to be an active conspirator, and accordingly, he was implicated as the 11[th] accused. The petitioner was absconding for a long time and was ultimately arrested on 21.01.2023. Since then, he has been under judicial detention. Even though he approached for bail before this Court by filing B.A.No.2408/2023, the same culminated in Annexure A2 order dated 21.8.2023, by which the same was rejected. This is the second application submitted before this Court seeking bail. 3. Heard Sri. Sunny Mathew, the learned counsel appearing for the petitioner, Sri.Grashious Kuriakose, the learned Senior Counsel and Additional Director General of Prosecution (ADGP), assisted by Sri.C.K.Suresh, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. It is also contended that even according to the prosecution, his involvement is in participating in three conspiracies out of the seven conspiracies for committing the alleged murder. It was contended that there is absolutely no evidence showing the B.A. No.8856 OF 2023 4 petitioner's participation in any of the said conspiracies. The petitioner is also a person with no criminal antecedents, and now more than eleven months have elapsed since the date of his arrest. The trial of the case is not likely to be completed soon; therefore, his detention is completely unwarranted. With regard to Annexure A2 order by which his earlier application was rejected, it was pointed out by the learned counsel for the petitioner that, at the time when the said bail application was moved, the petitioner did not have in his possession the final report and other connected documents relied on by the prosecution and therefore the entire contentions with reference to the materials contained in the final report could not be brought to the notice of this Court. 5. The learned Additional Director General of Prosecution stoutly opposes the said application by mainly highlighting that, the application itself is not maintainable in view of Annexure A2 order. It was pointed out that, in Annexure A2 order, a detailed examination of the prosecution materials was made by this Court, and thereafter, came to a definite conclusion that a prima facie case had been made out. In the present B.A. No.8856 OF 2023 5 application, apart from reiterating the contentions raised by the petitioner in the earlier application as to the merits of the allegations raised against him, no contentions are raised pointing out any material change in circumstances so as to warrant the entertainment of the second bail application. The learned ADGP places reliance upon Kalyan Chandra Sarkar v. Pappu Yadav [(2005)2 SCC 42], Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director [(2007)1 SCC 70] and Pradeep @ Kuttan v. State of Kerala and Another [2021(4) KHC 358]. The learned ADGP also made available the copy of the order passed by this Court in B.A.No.6431/2022 filed by the 10[th] accused in this case and contended that taking note of the similar contentions raised in that case, this Court rejected his application. 6. I have carefully gone through the records as the learned ADGP made available the Case Diary. The specific contention raised by the learned ADGP is with regard to the maintainability of the second bail application on the grounds that this Court considered on an earlier occasion. Of course, it is true that, in Annexure A2 order, this Court, in paragraphs 9 to 11, specifically dealt with the materials in the final report B.A. No.8856 OF 2023 6 as to the role of the petitioner and came to a conclusion that a prima facie case has been made out. The learned counsel for the petitioner would submit that, when the Annexure A2 order was passed, he was not equipped with the entire set of materials to highlight the lacuna in the prosecution case. It is to be noted in this regard that the manner of appreciation of materials to be made when a subsequent bail application is submitted by the accused after dismissal of the earlier applications was considered by this Court in Kalyan Chandra Sarkar’s case (supra). In paragraph 20 of the said decision, it was observed as follows: “20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country.” ## In the said decision, it was also observed in paragraph 18 as follows: “18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a B.A. No.8856 OF 2023 7 constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing require that such persons be released on bail, in spite of his earlier applications being rejected, the courts can do so.” In Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004)7 SCC 528] , it was observed by the Hon’ble Supreme Court that, the mere fact that the accused has undergone a certain period of incarceration, by itself would not entitle the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. In Pradeep @ Kuttan’s case (supra), this Court also considered the same issue, and after referring to various decisions rendered by the Hon’ble Supreme Court, it was observed that B.A. No.8856 OF 2023 8 ‘when successive bail applications are considered, the Court has a duty to consider reasons and grounds on which earlier bail applications were rejected. In such circumstances, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. Bail application in a case where earlier applications have been rejected is maintainable only when there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.’ 7. Thus, in the light of the aforesaid principles, the application made by the petitioner in this case has to be considered. While doing the said exercise, the fact that, in Annexure A2 order passed by this Court, a detailed examination of the nature of the allegations raised against the petitioner and the materials the prosecution relies on to substantiate the same were considered, cannot be ignored. As observed above, the allegation of the prosecution that, out of the seven conspiracies, the petitioner had participated in three conspiracies has been specifically taken note of. It was also considered that the petitioner was the Secretary of the Popular Front of India at Puthunagaram, and the specific case of the B.A. No.8856 OF 2023 9 prosecution is that the said organization was behind the said attack. 8. However, since the petitioner raised a specific contention that they were not adequately equipped with the materials to submit a proper reply when the earlier application was considered, I deem it appropriate to make a deeper inquiry into the matter. In the objection raised by the learned ADGP, it was specifically alleged that the petitioner participated in three conspiracies, viz. first, third and fourth conspiracies, that took place on 14.08.2021 at Puthunagaram Udaya College ground on 10.09.2021 at Alathur in the Shawarma shop of the 1[st] accused and at Menonpara at Athicode on 24.10.2021. Besides the same, the learned ADGP made available the call data records of the petitioner herein for the period from 9[th] May 2021 to the date of the incident, which is on 15.11.2021. It was pointed out that the petitioner was in regular contact with the other accused persons, including the persons who physically participated in the offence and the other accused persons who were implicated based on the allegation of conspiracy. On going through the contents of the said call data records, it can be seen that, on all the dates of conspiracies, there were telephone contacts between the petitioner and some of the accused persons B.A. No.8856 OF 2023 10 who participated in the said conspiracies. The learned counsel for the petitioner would submit that the call data records submitted by the learned ADGP would indicate that on all dates, i.e. 9[th] May, 2021 to 15[th] November 2021, there were regular contacts with the other accused persons and, therefore, the fact that the contacts were made by the petitioner with the other accused persons on the date of conspiracies, cannot be given much significance. According to him, since he was one of the office bearers of the PFI and the other accused persons were either the members of the said organization or the office bearers thereof, it was natural to have regular contact with each other over the phone. The learned counsel for the petitioner also pointed out that, out of three conspiracies in which the petitioner had allegedly participated, the first conspiracy, reportedly made on 14.08.2021, occurred at Puthunagaram Udaya College ground. It was pointed out that, admittedly, on that day, a function was organized by the SDPI, a political party affiliated with the Popular Front of India, in which hundreds of persons participated. The petitioner, one of the organizers of the said function, was present at the function and had contact with several members of the organization, including the accused persons. Therefore, his B.A. No.8856 OF 2023 11 presence and the contacts made on that day with the other accused cannot be treated as a material to support the contention that he participated in the conspiracy allegedly entered between the accused persons. It is also pointed out that, regarding the other two conspiracies, there is no material evidence forthcoming to substantiate the same. 9. On the other hand, the prosecution mainly relies on call data records and the petitioner's tower location details to substantiate his involvement. The fact that the petitioner was one of the office bearers of PFI is not disputed. The tower location details made available by the learned ADGP would indicate that he was physically present at the places at the relevant time when the first, third and fourth conspiracies took place. Besides the same, even on the dates when the other conspiracies took place, the contact of the petitioner through mobile phone with some of the participants in the conspiracy is also evident from the call data records. In the last conspiracy that took place on 14.11.2021 in which accused Nos.1 to 6 and 8 had participated the petitioner had contacted the 1[st] accused at 10.30 p.m. and had a conversation for 55 seconds. The incident occurred on the next day. Besides the same, on that day, he contacted the B.A. No.8856 OF 2023 12 10[th] accused, another key conspirator of the crime, on seven occasions between 7 a.m. and 11.43 p.m. Another crucial aspect to be noticed is that immediately after the incident on 15.11.2021, the petitioner absconded and went to his sister’s place in Coimbatore. CW124 is the husband of the petitioner's sister, in whose residence, the petitioner resided for one year. From the statement of CW124, it is evident that, after the petitioner reached Coimbatore, the petitioner was using a mobile phone bearing No.9994737023, registered in the name of CW124. The prosecution has a specific case that, while the petitioner was absconding, he was in regular contact with one Abdul Thahir, the 15th accused, who was also absconding at the relevant time after the commission of the crime. It is also discernible from the records that the petitioner herein was implicated as one of the accused based on a confession statement given by 1[st] accused when he was arrested. when the was Subsequently, petitioner arrested, he also gave a confession statement. The specific case of the prosecution is that the materials they could collect, i.e. the call data records and the tower location details of the petitioner, are perfectly in tune with the confession statement made by the 1[st] accused and the petitioner himself. Of course, it is true that the B.A. No.8856 OF 2023 13 confession statement given by the accused or co-accused cannot be relied on to establish the guilt of any person. However, when there are other materials that substantiate the contents of the confession statement, it is a matter that cannot be ignored, at least at the time of considering the bail application. 10. There is yet another aspect. In B.A.No.6431/2022, this Court considered the bail application submitted by the 10th accused, and after an elaborate discussion, the same was dismissed. A careful scrutiny of the case diary would indicate that the allegations against the petitioner and the 10th accused were almost similar, and both were implicated based on conspiracy. This Court specifically found a prima facie case against the 10[th] accused and rejected the application. As mentioned above, the call data records indicate regular contact between the petitioner and the 10[th] accused. Therefore, the reasons which were considered by this Court when the application submitted by the 10[th] accused was dismissed are also applicable in the case of the petitioner as well, except the fact that the 10[th] accused had criminal antecedents. As regards the contention of the prima facie case, there are materials against the petitioner. B.A. No.8856 OF 2023 14 11. Thus, when considering all the relevant aspects, the only irresistible conclusion possible is that the bail Application now submitted by the petitioner cannot be considered. First of all, as rightly pointed out by the learned ADGP, this Court has already arrived at a finding concerning the existence of a prima facie case against the petitioner in Annexure A2 order after an elaborate discussion on the materials. It is also a well-settled position of law that a second bail application could be maintained only when there are material changes in the factual position that warrants interference and not on the question already decided in the earlier bail applications. In this case, no such change in circumstances was brought to my notice by the petitioner, but instead, the contentions raised are about the lack of materials in support of the allegations raised against the petitioner, which were already considered. Despite the same, this Court has already made an endeavour to consider the case diary once again, but finds that the materials are sufficient to make out a prima facie case against the petitioner. The fact that the petitioner had undergone a long incarceration of more than 11 months by itself cannot be a ground to grant bail to the petitioner, particularly because the allegations raised are very B.A. No.8856 OF 2023 15 serious. The severity of punishment is also a relevant aspect. While taking the said view, I have also taken note of the fact that the petitioner was absconding for a period of more than one year after the incident, and his arrest could be secured much belatedly. In such circumstances, I do not find any merits in this application, and accordingly, this bail application is dismissed. Sd/ZIYAD RAHMAN A.A. JUDGE pkk