IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935
## **CRL.A.No. 1434 of 2013 (D)**
AGAINST THE ORDER IN C.M.P.NO.38/2013 IN S.C.NO.1/2013 DATED 10.9.2013 PASSED BY THE SPECIAL COURT FOR THE TRIAL OF NIA CASES, ERNAKULAM.
## APPELLANT/PETITIONER/ACCUSED NO.37:
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P.V. NOUSHAD, S/O.BEERAN ASOKAPURAM, PAREKATTIL VEEDU ASOKAPURAM AMSOM, CHOORNIKKARA VILLAGE ERNAKULAM DISTRICT.
BY ADV. SRI.SUNNY MATHEW
## RESPONDENT/RESPONDENT/COMPLAINANT:
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THE NATIONAL INVESTIGATION AGENCY, NEW DELHI REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
## SRI.M.AJAY, SPECIAL PUBLIC PROSECUTOR FOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.**
## **---------------------------------------------------Crl.A. NO.1434 OF 2013 D**
## **---------------------------------------------------Dated this the 24[th] day of October, 2013**
## **JUDGMENT**
## **K.T.Sankaran, J.**
The accused No.37 in S.C.No.1 of 2013 on the file of the Special Court for the trial of NIA cases, Ernakulam challenges the order dated 10.9.2013 in C.M.P.No.38 of 2013, by which the court below dismissed the application for bail submitted by the appellant under Section 439 of the Code of Criminal Procedure.
2. The prosecution case is that on 4.7.2010, the accused persons formed themselves into an unlawful assembly and chopped away the right hand of Prof.T.J.Joseph, Newman College, Muvattupuzha at a place near his house at Thodupuzha. The prosecution alleges that the crime was committed against the victim on the ground that he set a question paper in the Newman College which contained some questions of blasphemous nature against Prophet Muhammed and Islam.
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3. The crime was registered by the Sub Inspector of Police, Muvattupuzha against certain identifiable persons under Sections 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(ii), 153A, 201, 202, 212 and 307 read with Section 149 of the Indian Penal Code and Section 3 of the Explosive Substances Act. Later, accused Nos.7 to 54 were added in the array of accused and offences under Sections 15, 16, 18, 18B, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 were additionally incorporated.
4. As per the order dated 9.3.2011, the investigation of the case was entrusted with the National Investigation Agency ('NIA' for short). NIA registered the case as RC.No.1/2011/NIA/DLI. The Court permitted further investigation of the case under Section 173 (8) of the Code of Criminal Procedure as well.
5. According to the prosecution, the appellant was absconding and he was not available in India. He was arrested on 16.10.2012 and he was remanded to judicial custody. He continues to be in judicial custody.
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6. It is submitted by the learned Special Public Prosecutor for NIA cases that the trial of the case commenced and 64 witnesses were examined.
7. Sri.Sunny Mathew, the learned counsel appearing for the appellant, submitted that the appellant is in jail since 16.10.2012 and there is no shred of evidence against him in the case. The learned counsel submitted that the victim was examined as PW2. Photocopy of the relevant pages of his deposition were produced for our perusal. The learned counsel submitted that on going through the evidence of PW2, there is nothing to indicate that he mentioned to the investigating officer any of the things which he deposed for the first time in Court. It is submitted that PW2 deposed before Court that two persons followed him on 2.7.2010 while he was going to the Bishop's house along with his sister Lilly. On suspicion, he slowed down the vehicle and even thereafter, the two persons on the bike did not overtake and go. Then he raised the speed of his vehicle and even thereafter, they followed. After following the car for a few kilometres, the persons who rode on the bike turned to another lane.
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It is submitted by the learned counsel that such an incident was not mentioned to the investigating officer by PW2 in spite of the specific direction by the police that any untoward incident should be reported to the police. The learned counsel also submitted that the other witness cited by the prosecution to prove a part of the incident as against the appellant is CW53. CW53 passed away. As such, there is no prospect of any evidence being let in which would show that the appellant is guilty of the offence.
8. Sri.M.Ajay, the learned Special Public Prosecutor for NIA cases, submitted the following: There was a conspiracy to deal with Prof. T.J.Joseph as he was allegedly indulging in anti-Islamic activities. The accused persons were involved in that conspiracy. All the accused did not know what specific task was entrusted to different persons. The appellant was given a specific task of locating the house of Prof.T.J.Joseph and preparing a sketch for that purpose. He was also assigned the duty of overseeing the events and movements of the police. It is also alleged that he was also entrusted with the duty to collect mobile phones from accused No.28 and hand it over to accused Nos.32 and 33. The learned Special
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Public Prosecutor submitted that once it is proved that there is criminal conspiracy and the accused acted in furtherance of their common object, it is not necessary to prove the particular overt act committed by a particular accused.
9. The court below held that the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act would operate as a specific bar in granting bail to a person accused of an offence punishable under Chapters IV and VI of the said Act, if the Court is of the opinion that there are reasonable grounds for believing that the accusation against the person accused is prima facie true. The court below went through the statements of some of the charge witnesses and found that there are reasonable grounds to believe that the appellant is also involved in the conspiracy. It was also held that the prosecution has gathered evidence that the appellant was in charge of the pilot team and he watched the movements of the police and the victim. The court below also noticed that PW2, the victim, identified the appellant, when he was examined as PW2 before Court.
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10. The court below also noticed that the investigating officer could not apprehend the appellant for quite a long time as he was absconding. The appellant was arrested only after two years. The court below noticed that examination of the witnesses commenced and twenty witnesses were examined. The court below rejected the contention put forward by the learned counsel for the appellant that 318 witnesses were cited on the side of the prosecution and that it would take a long time to complete the recording of evidence and therefore, the appellant was entitled to be released on bail. The court below held that while granting bail, the Court is bound to take into consideration various matters such as the nature and seriousness of the offence, nature of evidence, possibility of the accused being secured for trial, the reasonable apprehension of the witnesses being threatened and the evidence being tampered with and the larger interests of the public and the State. The court below also relied on the decision in **Muhammed Navas** v. **Station House Officer** (2009 (3) KLT SN 64 (C.No.62)), wherein it was held thus:
“It is true that the petitioner is in judicial custody since 7.11.2008. The question is not whether how long a person is in judicial custody, but whether it is feasible
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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 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.”
11. The appellant was absconding for a long period. His presence could be secured before Court only after two years of the date of incident. He was not available in India during that period.
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The facts and circumstances of the case would clearly indicate that if the appellant is released on bail, there is every likelihood of the witnesses being harassed, humiliated and threatened. There is also a likelihood that the appellant may abscond again, which will make it impossible for the Court to try him for the offence. The specific allegations made against the accused and the allegation of involvement of the appellant in the organised crime would all lead us to the conclusion that this is not a fit case where bail can be granted, particularly when the trial of the case has commenced. We do not find any error, illegality or impropriety in the order passed by the court below.
For the reasons stated above, the Criminal Appeal is dismissed.
**(K.T.SANKARAN) Judge**
**(M.L.JOSEPH FRANCIS) Judge**
ahz/
