O.P.(Criminal) Nos. 30 of 2021 and 60 of 2021 — Muhammed Ali v. Central Bureau of Investigation (CBI), Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 OP(CRL.) NO. 30 OF 2021** **CRL.M..P. NO. 41/2020 AND CRL. M.P. NO. 42/2020 IN S.C. 370/2016 IN R.C.11(S)/08/CBI/SCB/CHENNAI OF THE COURT OF THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO. 2:** **MUHAMMED ALI AGED 41 YEARS S/O.KUNJU KAMMU, RESIDING AT PREM NAGAR, SOUTH ANDAMAN, PORT BLAIR, PIN - 744 104. BY ADVS.ASHRUTH NASER SMT.ANUROOPA JAYADEVAN** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESIGATION SCB, THIRUVANANTHAPURAM, REP. BY INSPECTOR OF POLICE.** **BY ADVS.SHRI.P.VIJAYAKUMAR, ASG OF INDIA MANU S., ASG OF INDIA** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07.12.2021, ALONG WITH OP(Crl.) NO.60/2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** O.P.(Crl.)Nos.30 & 60 OF 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943** **OP(CRL.) NO. 60 OF 2021** **CRL.M..P. NO. 44/2020 IN S.C. NO. 370/2016 IN R.C.11(S)/08/CBI/SCB/CHENNAI OF THE COURT OF THE SPECIAL JUDGE** **(SPE/CBI), THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED NO. 2:** **MUHAMMED ALI AGED 41 YEARS S/O. KUNJU KAMMU, RESIDING AT PREM NAGAR, SOUTH ANDAMAN, PORT BLAIR, PIN-744104.** **BY ADVS.ANUROOPA JAYADEVAN SMT.ANIMA M. SHRI.ASHRUTH NASER SRI.K.GOPALAKRISHNA KURUP (SR.)** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION SCB, REPRESENTED BY INSPECTOR OF POLICE, THIRUVANANTHAPURAM.** **BY ADVS.SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.SUVIN R.MENON, CGC SRI. S.MANU** **THIS OP (CRIMINAL) HAVING HAVING BEEN FINALLY HEARD ON 07.12.2021, ALONG WITH OP(Crl.)NO.30/2021, THE COURT ON 17.12.2021 DELIVERED THE FOLLOWING:** O.P.(Crl.)Nos.30 & 60 OF 2021 3 ## **JUDGMENT** These are original petitions filed under Article 227 of the Constitution of India. As the parties in both the petitions are the same and questions involved are identical, both the cases were heard together and are being disposed of by this common judgment. 2. Petitioner is the second accused in S.C. No. 370/2016 on the file of the Special Court for the trial of CBI/SPE cases, Thiruvananthapuram. Originally, a case was registered in Medical College police station, Thiruvananthapuram for man missing. Facts are as follow: On 13.10.2005, Syamal Mandal, a final year B.Tech Applied Electronic student of College of Engineering, Trivandrum (CET) got a telephone call from a person calling himself as Alok Biswas, who claimed that he was his schoolmate in Andaman Islands; he called Syamal Mandal over phone and asked him to reach Sree Bala Theatre in East Fort, O.P.(Crl.)Nos.30 & 60 OF 2021 4 Thiruvananthapuram within Fort police station limits. After intimating the matter to Digambaram, a junior student of Syamal Mandal, both belonging to Andaman & Nicobar Islands, he proceeded to the said Sree Bala Theatre. Digambaram also accompanied him. Even though both of them waited for sometime at East Fort, Thiruvananathapuram, may be smelling the presence of Digambaram, Syamal Mandal was contacted again and asked him to reach a particular place. By the time he crossed the road, Digambaram lost touch with him and after sometime, Syamal Mandal informed Digambaram that he is travelling in a vehicle along with his friend and asked Digambaram to go back, that he will reach back hostel soon. Even though Digambaram returned and tried to contact Syamal Mandal, somebody else picked up the phone and said that he is attending a party and that he would return next day. Next day, or on 14[th] or 15[th] , they could not trace Syamal Mandal and thus on 15.10.2005, Digambaram and his friends went to Medical College police station and informed O.P.(Crl.)Nos.30 & 60 OF 2021 5 about the missing of Syamal Mandal: a case for man-missing was registered there as Crime No. 667/2005. Since he went missing from East Fort limits, later a crime was re-registered in East Fort police station as Crime No. 738/2005. Meanwhile on 15.10.2005, Basudev Mandal, father of Syamal Mandal got calls from Chennai demanding a ransom of Rs. 20 lakhs for the release of Syamal Mandal. He immediately rushed to Thiruvananthapuram, informed the City Police Commissioner. As directed by the City Police Commissioner, himself and two police officials proceeded to Chennai and even though they were misled from different telephone numbers, at last on 24.10.2005 they decided to strike the deal for Rs. 10 Lakhs. Basudev Mandal was directed to deposit the amount in a given account of the HDFC Bank, but before that he insisted that he should see his son, thus that attempt was spoiled. By the time on 23.10.2005, an unidentified body of a male was found in a pit filled with water in an isolated place near Vallar in Thiruvallam police station limits. Later, the hostel-mates O.P.(Crl.)Nos.30 & 60 OF 2021 6 identified it as the body of Syamal Mandal, his parents also identified it and thus a crime was registered in Thiruvallam police station which was transferred to Fort police station and thus offence under Sections 120B, 364A, 379 and 302 read with 34 of the Indian Penal Code was registered and the investigation was transferred to Crime Branch. As Crime Branch could not make any lead into the death of Syamal Mandal, at the instance of the father of Syamal Mandal, this Court intervened and the investigation was handed over to CBI and thus Chennai unit of the CBI registered a crime and investigation was carried on. The investigation came down to accused Nos. 1 and 2. The first accused is still at large and the second accused alone could be nabbed. The second accused is the petitioner. On conclusion of investigation, charge sheet was laid before the Chief Judicial Magistrate's Court, Ernakulam from where the case was committed and thus it reached the Special Court, Thiruvananthapuram. 3. Meanwhile, the father of the deceased again moved O.P.(Crl.)Nos.30 & 60 OF 2021 7 this Court and the Court directed the trial court to dispose of the case within a period of six months. 4. It is the common case that there are 66 witnesses in the charge sheet. The trial has already commenced and about 20-22 witnesses have already been examined. Meanwhile, the Investigating Officer filed two petitions Exts. P6 and P8 in O.P. (Crl.) No. 30/2021 on 11.03.2020. Ext.P6 is under Section 91 of the Code of Criminal Procedure to call for certain documents and Ext.P8 is an application under Section 311 of the Cr.P.C., to summon three witnesses mentioned in the petition. 5. By Annexure P10 order dated 18.03.2020, the court allowed both the petitions under Sections 91 and 311 of the Cr.P.C. and directed to summon the witnesses and the documents. Ext.P10 in O.P.(Crl.) No. 30/2021 is the subject of challenge in that petition. 6. Similarly, on 16.03.2020, the Investigating Officer filed two petitions under Sections 311 and 91 of the Cr.P.C. O.P.(Crl.)Nos.30 & 60 OF 2021 8 calling to issue summons to the Nodal Officer of BSNL, Port Blair, Andaman Nicobar Islands and to summon prepaid enrolment forms in respect of certain telephones and the CDR of Mobile No. 9434267609 registered in Port Blair. By Annexure P8 order dated 09.11.2020, Crl.M.P. No. 44/2020 was also allowed by the trial court and aggrieved by the same, the petitioner has moved this Court with O.P.(Crl.) No. 60/2021. 7. I heard the learned counsel for the petitioner and the learned Central Government Counsel for the respondent. 8. The grievance of the petitioner is that such documents were not produced, nor mentioned in prosecution records, that already 30 witnesses out of 66 witnesses have been examined in three schedules, that the matters were not heard in open court and orders were passed behind their back, that there is no meaning in summoning the Nodal officers for producing the CDR because such call data records are preserved only for a period of one year. Now after more than O.P.(Crl.)Nos.30 & 60 OF 2021 9 15-16 years, it is a wasteful exercise to summon such witnesses from different parts of the country and no purpose will be served and considerable prejudice would be caused to the defence. 9. According to the learned counsel for the petitioner, even though such orders have been passed, especially the order challenged in O.P.(Crl.) No. 60/2021 they were not given opportunity to oppose the application, they came to know about it only on subsequent point of time, the Court did not take care to give them opportunity to object the applications. 10. I shall consider the contentions separately. As noticed earlier, the subject matter of challenge in O.P.(Crl.) No. 30/2021 is the Ext.P10 order whereby the learned Special Judge allowed Crl.M.P. Nos. 41/2020 and 42/2020 filed by the prosecution in the Sessions Case. The petitioner cannot be heard to say that they were not given opportunity before passing this order, because he himself has produced copy of the petition as well as the objection filed by him before the court. O.P.(Crl.)Nos.30 & 60 OF 2021 10 Ext. P6 in O.P.(Crl.) No. 30/2021 is a petition under Section 91 of the Cr.P.C. seeking to summon ten witnesses. In the objection, it is admitted that the documents shown against Serial Nos. 28, 39, 13, 14, 35, 36 and 37 of the list of documents produced along with the final report are the documents now sought to be produced again by the prosecution in the above petition. Therefore, they say that as per the TRAI Regulations, call details are preserved by the service provider only for a period of one year; beyond said period, they are not bound to preserve the same, so that is their objection. As rightly pointed out by the learned Central Government Counsel for the CBI, let the Nodal Officers appear before court and say that such materials now summoned from them are not available, that they have not preserved it etc. Before examining, therefore, no opinion can be formed on those matters. 11. The other application under Section 311 of the Cr.P.C. is to summon two Nodal Officers of the Vodafone Idea O.P.(Crl.)Nos.30 & 60 OF 2021 11 Ltd. and Bharati Airtel Limited and the Sub Divisional Engineer, OCB 28, BSNL Telecommunications, Vishakhapattanom. The objection dated 16.03.2020 is that perusal of the witness list would show that witness Nos. 41, 42, 49 and 50 are the same persons who are now sought to be examined in the petition dated 11.03.2020. Therefore, those who are included in the witness list before the court are not to be summoned separately. In other words, in both the objections they have not raised any substantial ground for opposing the application for summoning the witnesses. The defence has no case that they were not given opportunity to file objection. 12. From the two applications filed on 16.03.2020, it is true, it cannot be inferred that the court had given opportunity to the petitioner to file objections to both the applications. But beyond the objections raised on 16.03.2020 i.e., Exts. P7 and P9 in O.P.(Crl.) No. 30/2021, what more objection they can raise is the doubt raised by the Central Government Counsel for the CBI. This Court also agrees with the said proposition. O.P.(Crl.)Nos.30 & 60 OF 2021 12 13. During the course of argument, it was also submitted that the certificate under Section 65B(4) of the Indian Evidence Act was not produced and therefore, there is no point in asking the Nodal Officers to produce the same. There is no substance in this contention also. Of course, the prosecution is bound to produce all the documents and witnesses they propose to rely before committal and that is required to be supplied to the accused under Section 207 of the Cr.P.C. As noticed earlier, the petitioner has no case that by filing those applications under Sections 91 and 311 of the Cr.P.C., the prosecution is trying to cause prejudice to the defence. 14. As mentioned earlier, the petitioner has a case particularly Ext.P8 order in O.P.(Crl.) No. 60/2021 was passed behind their back. According to the learned counsel, on the date of passing the said order, name of Arun Antony is shown as the Public Prosecutor, but that day, he had not even entered appearance for the prosecution at all. Whatever it may be, the O.P.(Crl.)Nos.30 & 60 OF 2021 13 most vital consideration to be borne in mind is whether examination of the said witnesses are essential for the just decision of the case. From the showing of the petitioner itself, it is clear that the prosecution has not introduced any new case nor any new document is being imposed on the petitioner. On the other hand, it is the definite case of the prosecution that various telephone calls were made to the telephone number of the Basudev Mandal, the father of the deceased, to the mobile phone of the deceased which were recovered later from one Keshab Kumar Khatwal in Chennai to whom the same was sold by Durga Bahadur, the first accused. It is also alleged that everything was done in the process of demanding and extracting ransom for the release of Syamal Mandal. We cannot forget the fact that it is a case built up fully on circumstantial evidence, there is no direct evidence as to the alleged murder committed by the accused persons. The first accused Durga Bahadur is still at large; the petitioner alone was nabbed and everything depends upon the chain of circumstances being O.P.(Crl.)Nos.30 & 60 OF 2021 14 relied on by the prosecution. The telephone calls received by the father and the deceased into the mobile phones carried by him and friends of the deceased in their bid to trace him are vital links. That can be proved only by calling and proving the call data records of the phones. 15. I have no doubt that such call data records and prepaid enrolment forms of particular phones are vital pieces of evidence which require to be produced and proved. It is true that certificates under Section 65B of Evidence Act were not produced. But as rightly pointed out by the learned Central Government Counsel, at that time the investigation was conducted by the State Crime Branch and only on later point of time that the CBI had taken over. They could not collect certificates under Section 65B of the Act at that time. But such documents can also be entertained at subsequent point of time as held by the Hon'ble Supreme Court in **State of Karnataka v. M.R. Hiremath [(2019) 7 SCC 515]** . Here the decision in **Union of India v. Ravindra V. Desai [(2018) 16 SCC 273]** O.P.(Crl.)Nos.30 & 60 OF 2021 15 has been reiterated by the Supreme Court. There is no proposition that certificate under Section 65B of the Act cannot be received on subsequent point of time. Even at the risk of repetition, it must be stated that the petitioner has no case that fresh matters are introduced through these applications and petitions for recalling witnesses. The allegations against the petitioner are very clear and cogent. Sufficient materials have been furnished to them in advance so that he could chalk out the defence. No prejudice is caused by calling such witnesses and documents. Even if it is stated that the call data records are preserved for one year, whether the data in respect of these particular calls have already been preserved, can be decided only after examining the Nodal Officers and other officials of the service providers. The most vital question is whether these documents and examination of witness would cause any prejudice to the prosecution. I have no doubt that no prejudice will be caused to them. Only thing is that they should be given sufficient opportunity to cross examine the witnesses and I O.P.(Crl.)Nos.30 & 60 OF 2021 16 have no doubt that, that would be afforded by the trial court. On these considerations, I do not find any reason to interfere with the orders under challenge and both the Original Petitions are dismissed. SD/- **K.HARIPAL JUDGE** **DCS/13.12.2021** O.P.(Crl.)Nos.30 & 60 OF 2021 17 ## **APPENDIX OF O.P.(Crl.)No.30 OF 2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF FINAL REPORT FILED BY THE CBI ON 28/10/2010 IN SC 370/2016. EXHIBIT P2 TRUE COPY OF THE LIST OF WITNESSES CONTAINING THE NAMES OF 66 WITNESSES SUPPLIED TO THE ACCUSED ALONG WITH THE FINAL REPORT. EXHIBIT P3 TRUE COPY OF THE LIST OF DOCUMENTS CONTAINING 43 DOCUMENTS RELIED ON BY THE PROSECUTION AND SUPPLIED TO THE ACCUSED ALONG WITH THE FINAL REPORT. EXHIBIT P4 TRUE COPY OF THE COURT CHARGE IN S.C.NO.370/2016 OF COURT OF SPECIAL JUDGE, CBI, THIRUVANANTHAPURAM. EXHIBIT P5 TRUE COPY OF THE B DIARY IN SC NO.370/2016 OF THE SPECIAL JUDGE, CBI, THIRUVANANTHAPURAM. EXHIBIT P6 TRUE COPY OF THE PETITION CRL.M.P.NO.41/2020 FILED BY THE PROSECUTION UNDER SECTION 91 CR.P.C. IN SC 370/2016. EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 16/3/2020 IN CRL.M.P.NO.41/2020. EXHIBIT P8 TUE COPY OF THE PETITION DATED 11/3/2020 FILED AS CRL.M.P.NO.42/2020 IN SC 370/2016. EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CRL.M.P.NO.42/2020. EXHIBIT P10 TRUE COPY OF THE COMMON ORDER DATED 18/3/2020 IN CRL.M.P.NOS.41 AND 42 OF 2020 IN SC 370/2016 OF THE SPECIAL COURT, CBI, THIRUVANANTHAPURAM. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 12/8/2020 IN RP NO.552/2020 IN O.P.(CRL) NO.36/2020.** O.P.(Crl.)Nos.30 & 60 OF 2021 18 ## **APPENDIX OF O.P.(Crl.)No.60 OF 2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE LIST OF WITNESSES CONTAINING THE NAMES OF 66 WITNESSES SUPPLIED TO THE ACCUSED ALONG WITH THE FINAL REPORT. EXHIBIT P2 TRUE COPY OF THE LIST OF DOCUMENTS CONTAINING 43 DOCUMENTS RELIED ON BY THE PROSECUTION AND SUPPLIED TO THE ACCUSED ALONG WITH THE FINAL REPORT. EXHIBIT P3 TRUE COPY OF THE COURT CHARGE IN S.C.NO.370/2016 OF COURT OF SPECIAL JUDGE, CBI, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE B DIARY IN S.C.NO.370/2016 OF THE SPECIAL JUDGE, CBI, THIRUVANANTHAPURAM. EXHIBIT P5 TRUE COPY OF THE LIST OF WITNESSES SUBMITTED BY THE PROSECUTION ON 1.2.2021. EXHIBIT P6 TRUE COPY OF THE CRL.MP.NO.44/2020 IN S.C.NO.370/2016 U/S 311 CRPC. EXHIBIT P7 TRUE COPY OF THE PETITION IN CRL.MP.45/2020 IN S.C.NO.370/2016 U/S 91 CRPC. EXHIBIT P8 TRUE COPY OF THE ORDER IN CRL.MP.NO.44/2020 IN S.C.NO.370/2016 DATED 9.11.2020. EXHIBIT P9 TRUE COPY OF THE DOCUMENT SERVED TO THE ACCUSED ON 29.1.2020. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 9.11.2020 IN CRL.M.P. NO. 45/2020 IN S.C. NO. 370/2016 ON THE FILE OF THE COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM**