Shafeeq v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** **CRL.A.No.644 OF 2020** **SC 1/2015 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM** ## **APPELLANT/ACCUSED NO.4** **SHAFEEQ AGED 31 YEARS S/O. FAQRUDEEN, THELAPPURAM HOUSE, EKULAM, ODAKKALI, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.C.NOUSHAD SRI.E.A.HARIS** ## **RESPONDENT/COMPLAINANT** **UNION OF INDIA** **REPRESENTED BY NATIONAL INVESTIGATION AGENCY KOCHI, REP THROUGH SPECIAL PUBLIC PROSECUTOR, FOR NIA, HIGH COURT OF KERALA, ERNAKULAM 682 018.** **R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **OTHER PRESENT:** **SRI.ARJUN AMBALAPATTA, SPL.PP FOR NIA CASES** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.644/2020 2 ## **JUDGMENT** Dated : 31[st] March 2021 M.R.Anitha, J. 1. This appeal has been filed against the order in Crl M.P.42/2020 in S.C.1/2015/NIA. The appellant is the 4[th] accused in the above case. The offence alleged against the appellant and other accused are under Secs 143, 147, 148, 120B, 341, 427, 323, 324, 326, 506(ii), 201, 202, 153A and 307 r/w 149 of IPC, Sec.3 of the Explosive Substances Act and Sec.15 r/w 16, 18, 18B, 19 and 20 of UA(P) Act. 2. Prosecution case is that in furtherance of common intention of causing a terrorist activity accused, along with others, hatched a criminal conspiracy on 4.7.2010 at about 8.00 am at Hostelpadi and attacked Prof.T.J.Joseph and chopped off his right palm on the allegation that he intentionally prepared question paper for college examination and one question allegedly contained some derogatory remarks against Profet Mohammed. The case was initially numbered as S.C.1/2013 against 37 accused and trial was conducted and 13 accused out of 31 accused were convicted for various charges as per judgment dated 30.4.2015. Crl.A.644/2020 3 Petitioner was accused No.30 in the final report and the case against the petitioner and five others were refiled as S.C.1/2015. Petitioner surrendered before the Special Court on 29.6.2019 and thereafter he has been under custody. According to the petitioner he never absconded and was employed out of State during the trial and hence could not appear before the Court. He is also projected to be totally innocent of the charges levelled against him and his name was not mentioned in the earlier prosecution records. But the application filed by him seeking for bail was dismissed by the impugned order, against which appeal has been filed. 3. It has been contended that the evidence collected by the prosecution could not even remotely suggest the involvement of the accused in the alleged terrorist activity or the conspiracy. Appellant was implicated simply based on the confession statement of the co-accused. His name was not there in the earlier records and there are no materials to connect the petitioner with the offence. The accused who faced similar allegations in S.C.1/2013 have been acquitted. So there is every chance of the petitioner getting acquitted. The provisions of UAP Act will not be attracted against the appellant. There is no evidence against the Crl.A.644/2020 4 appellant to show that he participated in the criminal conspiracy hatched on 03.04.2010 and no recovery is effected from the appellant with respect to the allegation of destruction of evidence. Dictum laid down in NIA v. Zahoor Ahamad Shah Watali (2019 5 SCC1 and Moosa V S.I.of Police) was wrongly appreciated by the Special Court. He has been under custody for the last 11 months. The present pandemic situation was also not considered by the Special Judge. 4. The respondent on the other hand, filed a detailed objection seriously objecting to the prayer for bail sought for by the petitioner. Petitioner/appellant is one of the prime conspirators of the terrorist activity and was absconding ever since the occurrence. The accused was absconding for more than nine years and surrendered before the Court only on 29.6.2019. There is enough evidence to prove the involvement of the petitioner/accused. The weapons used by the assailants could not be recovered in spite of the custodial interrogation due to the non co-operation of the petitioner/accused. The prime accused No.1 in this case is still at large. The PFI/SDPI is still in enmical terms towards Prof.T.J.Joseph and more so after the release of his autobiography 'Attupokatha Ormakal'. The release of the Crl.A.644/2020 5 petitioner/appellant at this stage could lead to further attacks on the victim to wreck vengeance and that may disturb the harmony prevailing in the Society. If he is enlarged on bail there is every possibility of intimidating all the witnesses. Restriction imposed under Sec.43D (5) of the UAPA Act is applicable to the case of the petitioner. So the dismissal of bail application of the petitioner is by assigning sufficient reason and on being satisfied of a prima facie case against the petitioner/appellant. Hence they prayed for dismissal of the appeal. 5. It has been contended that there is no evidence collected by the prosecution even remotely to connect the appellant/ 4[th] accused and he has been implicated based on the unworthy confession of co-accused. The allegation against the petitioner is that he had participated in the conspiracy meeting held on 3.4.2010 at the Inspection Bungalow of the Kerala Water Authority, Muvattupuzha. He is also alleged to have played a vital role in the failed attempt made on 6.5.2010 and he was one among the persons made to wait at different places to facilitate the escape of actual participants of the assault and to cause disappearance of evidence by disposing off the weapons. He is also alleged to have some role in the failed earlier attempt on 2.7.2010. On 4.7.2010 he is Crl.A.644/2020 6 alleged to have dropped accused No.3 (in the final report) at the scene of occurrence and then later facilitated his escape as also destruction of weapons. The said accused was one among seven persons who had actually participated in the act of assault. 6. It has been stated in the impugned order that in the previous trial, the watchman of IB was examined as PW29 and deposed about the meeting of SDPI in the IB in the evening of 15.3.2010 and also on the next day. According to him, the meeting was held in secrecy. On seeing that PW29 reported the matter to PW30, the Assistant Engineer, Kerala Water Authority. He also supported the version. Further it is stated that CW272 and CW273 who were alleged to have seen the petitioner and some others having disassociated from the larger group, sitting in one corner and discussing the topic regarding the attack to be made in a discrete manner and thereby the conspiracy was hatched. But they did not support the prosecution in the earlier trial. The learned Public Prosecutor would contend that due to the influence, threat and coercion from the side of accused and their men, they turned hostile and when they get an opportunity to speak truth in the upcoming trial they may support the prosecution. All those depends upon the evidence yet to be Crl.A.644/2020 7 adduced and the fact of admissibility of their evidence. 7. The impugned order also would show that there are prima facie material for believing the accusation against the petitioner as far as the conspiracy charge is concerned. Petitioner along with others, admittedly has been accused of charges involving Secs 16 and 20 of the UAPA Act coming under Chapter IV of the UAPAct. As far as the offence under Chpter IV and VI of the UAPA Act are concerned as per the Proviso to Sec.43D(5) of the UAPA Act if there are reasonable grounds for believing that accusation against the person is prima facie true, there is express bar for considering the application for bail. 8. It is contended by the appellant that while quoting the dictum laid down in **NIA V Zahoor Ahmad Shah Watali AIR 2019 SC1734** the Special Court failed to consider circumstances favourable to the accused. 9. But in paragraph 17 of the above judgment the Apex Court has discussed in detail the ambit and scope of proviso to sub-section (5) of Sec.45D of UAP Act and the duty of the Court to be satisfied of the reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. After a comparative study of Crl.A.644/2020 8 TADA, MCOCA and Narcotic Drugs and Psychotropic Substance Act, 1985, it has been found that in such Enactments the Court is required to record its opinion that there are reasonable grounds for believing that the accused is not guilty of such offence. However if the Court is satisfied, under the 1967 Act (UAPA) that there are reasonable grounds for believing that the accusation against such person is prima facie true, bail cannot be granted. It is found that in one sense the degree of satisfaction is lighter where the Court has to opine that the accusation is prima facie true as compared to the opinion of accused being 'not guilty' of such offence as required under other special enactments. 10. In **Mahipal v. Rajesh Kumar @ Polia (2020 (2) SCC 118 = 2019 KHC (7) 205)** the Hon'ble Supreme Court while dealing with Sec.439 Cr.P.C and the power of interference of Appellate Court, in an order rejecting bail by a Sessions Court quoted _Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010 (14) SCC 496)_ . In that case accused was facing a trial under Sec.302 IPC. Several applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. High Court in turn allowed the bail application filed by the accused. Setting aside the order of the High Court, it has been held as Crl.A.644/2020 9 follows : _“It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”_ 11. Here admittedly the appellant has been absconding for a long period of 9 years. He surrendered only on 29.6.2019. So chances of appellant fleeing from the process of law if released on bail can not also Crl.A.644/2020 10 be overlooked. There are also prima facie material on the charge of conspiracy. There is also possibility of influencing the witnesses. Nature of the offence is also grievous. 12. It is also well settled that at the stage of grant of bail no minute details or deep scrutiny of the materials collected during investigation shall be undertaken. All that designated Court is expected to do is to examine whether accusation made on the basis of the materials collected are wholly improbable. If the materials are not wholly improbable and the Special Court found the materials are prima facie true as regards the commission of offence under Chapter IV or Chapter VI, such materials are enough to attract the bar under the Proviso to Sec.45D(5). In view of the clear finding of the designated Court that there are reasonable grounds for believing that the accusation against the appellant/4[th] accused as far as the conspiracy charge is concerned is prima facie true, the bar under the Proviso to sub-sec.(5) of Sec.45D would come into play. 13. The learned counsel also would contend about the grant of bail to the co-accused and especially to the 5[th] accused by this Court which has been upheld by the Apex Court. It is also his contention that the Crl.A.644/2020 11 appellant has surrendered before the Court on 29.06.2019 and for the last 11 months, he has been under confinement and there is no possibility of starting trial in the near future. The question is not how long a person is in judicial custody, but whether it is feasible to release him on bail in the facts and circumstances of the case and the offence against the individuals are to be distinguished from offence affecting the nation and the public at large. In this case a very serious allegation of participating in the conspiracy of attacking Professor T.J.Joseph, holding him responsible for blasphemy in setting a question paper for college examination, wherein there was one question containing derogatory remarks against Prophet Muhammed is raised against the petitioner. Petitioner is alleged to be one of the main conspirators of this barbaric terrorist activity. Prosecution has got a specific contention that during the previous trial around 100 witnesses turned hostile due to the coercion and inducement by absconding key accused and their henchmen. Two cases were registered regarding the threatening of the witnesses, one at Tirur Police Station in Malappuram District and the other at Muvattupuzha Police Station in Ernakulam District on the basis of complaint preferred by witnesses. In the previous trial 10 witnesses Crl.A.644/2020 12 have come forward to testify, risking their lives who have been granted special protection by the Special Court carrying on the trial. 14. More over, it has been submitted by the learned Special Public Prosecutor that the case has been scheduled for trial to 19.4.2021 and summons has already been issued to the witnesses and the grant of bail at this juncture to the appellant would adversely affect the trial. The trail is also scheduled to be completed within 180 days. The appellant being one of the main conspirators, releasing the petitioner at this stage would seriously jeopardize the trial. One of the accused in the case now scheduled for trial is the master conspirator. The absconding accused were responsible, were the key conspirators who hatched the plot, coordinated the carrying out of the plan and helped the perpetrators to escape the long arm of law. They were responsible for spreading a fear psychosis in the society with their fundamentalist and extremist activities, which percolated down to the witnesses who out of sheer fear turned hostile in the earlier trial. The evidence led at the earlier trial is of little consequence and the sentence handed down to at least thirteen accused in the earlier case and the special protection extended by the Special Court at this stage has instilled confidence in the witnesses. The Crl.A.644/2020 13 release of the accused would detrimentally affect the trial since their very presence in the main stream would raise concerns about not only the witnesses but also jeopardize the safety of their close family members. 15. Based on the above discussion, we do not find any reason at present to interfere with the order passed by the designated Court. It is left open to the appellant to approach the designated Court at any time in future if he could establish any change of circumstance. 16. In the result, Appeal dismissed. Sd/- ## **K.VINOD CHANDRAN, Judge** **Sd/-** **M.R.ANITHA, Judge** Mrcs/31.3.x Crl.A.644/2020 14 ## APPENDIX ## EXHIBITS **EXHIBIT P1 AI: COPY OF THE PRIVATE COMPLAINT AS C.M.P NO.4497/2012 BEFORE THE FIRST CLASS MAGISTRATE COURT, RANNY** **EXHIBIT P2 AII: TRUE COPY OF THE FIR EXHIBIT P3 AIII: CERTIFIED COPY OF THE FINAL REPORT EXHIBIT P4 AIV: TRUE COPY OF THE WRITTEN DOCUMENT DATED 11/5/2012** **EXHIBIT P5 AV: TRUE COPY OF THE COMPLAINT GIVEN TO THE BLOCK PROGRAMME OFFICER EXHIBIT P6 AVI: TRUE COPY OF THE REPORT OF HEARING EXHIBIT P7 AVII: TRUE COPY OF THE REPRESENTATION DATED 4/7/2012 EXHIBIT P8 AVIII: TRUE COPY OF THE COMMUNICATION DATED 12/7/2012**