Syed Muhammed Ashik v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ``` BAIL APPL. NO. 1833 OF 2023 ``` ``` CRIME NO.1989/2021 OF PALAKKAD TOWN SOUTH POLICE STATION, PALAKKAD PETITIONER/S: ``` ``` SYED MUHAMMED ASHIK AGED 41 YEARS THIRUVALLUVAR STREET, CHIKKANAMPARA, ALAMPALLAM, KOLLENGODE, PALAKKAD DISTRICT, PIN - 678506 BY ADVS. B.RAMAN PILLAI (SR.) R.ANIL SUJESH MENON V.B. THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT MAHESH BHANU S. RESSIL LONAN ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY SRI.GRACIOUS KURIAKOSE ADDL.DIRECTOR GENERAL OF PROSECUTION ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31.03.2023, THE COURT ON 05.04.2023 PASSED THE FOLLOWING: ``` B.A.No. 1833 / 2023 2 ## `ORDER` This is an application submitted for regular bail under section 439 of the Code of Criminal Procedure. The petitioner is the accused No.24 in Crime No.1989/2021 of Town South Police Station, Palakkad. 2. The prosecution case is that, on 15.11.2021 at about 8.45 a.m., while the deceased named Sanjith, an RSS worker, was proceeding on a motorcycle along with his wife from Mambram to Palakkad, five persons followed them and assaulted the said Sanjith with dangerous weapons such as swords, sticks etc. Due to the injuries sustained, he died and immediately thereafter, the assailants escaped from the scene of occurrence in a Maruti-800 car. The crime was initially registered for the offences punishable under Section 302 r/w 34 of the Indian Penal Code (IPC) against four or five identifiable persons. Later, during the course of investigation, the involvement of other accused persons were revealed and consequently, offences under sections 143, 144, 147, 148, 341, 302, 120(b), 109, 118, 201, 212, 114, 115, 465, 471 r/w. 149 of IPC and 27(3) r/w 7(a) & (b) of Arms Act were also alleged. Initially, the Police submitted a final report on 10.02.2022 against ten accused persons before the Judicial First Class Magistrate Court-III, Palakkad. Later, the said case was committed to the Sessions Court, Palakkad, and it is now pending as B.A.No. 1833 / 2023 3 S.C.No.662/2022 before the Sessions Court, Palakkad. 3. Later, the investigation continued and a supplementary charge sheet was submitted on 1.8.2022 against two more accused persons ie. A10 and A21. Thereafter, one Sirajudheen was arrested in connection with Crime No.318/2022 of Palakkad Town South Police Station, in which one Sreenivasan was murdered in a similar fashion. From the possession of the said Sirajudheen, two pen drives were recovered by the police, and one of the said pen drives contained the visuals of the place of occurrence of the incident in Crime No.1989/2021 wherein it could be seen that the deceased Sanjith was lying in a pool of blood and his wife was found crying. It was revealed that the aforesaid data and video footage were copied from the mobile phone of the 8[th] accused, Noushad (yet to be arrested) who captured the said images immediately after the incident. The said data were handed over to the said Sirajudheen by the said Noushad, A8. Accordingly, a further charge sheet was submitted in the said case implicating the said Sirajudheen as the 23[rd] accused in the said case. 4. As some of the accused persons were absconding, the investigation continued. Later, on examining the call data records of the accused persons, it was found that, some of the accused persons were regularly contacting the petitioner on his mobile phone. On further investigation, it was revealed that the petitioner was one of the chief reporters of Popular Front of India (PFI), an organisation B.A.No. 1833 / 2023 4 which was behind the commission of the aforesaid crime. In the said investigation, it was revealed that the petitioner was keeping himself away from his residence, and thereafter he was arrested on 19.1.2023. After his arrest, the Judicial First Class Magistrate CourtIII, Palakkad, as per order dated 23.01.2023 in Crl.M.P.No.446/2023, granted police custody of the petitioner for four days. During the course of such interrogation, the petitioner confessed that he was actively involved in the commission of the offence and that, he was the chief reporter of the PFI. His duty included co-ordinating with the other accused persons and collecting the details of the persons targeted. Even though, the petitioner submitted an application for bail before the Sessions Court, Palakkad, the same was rejected as per Ext.P3 order and this application for regular bail is submitted in such circumstances. 5. Heard Sri.B. Raman Pillai, the learned Senior Counsel for the petitioner, Sri. Gracious Kuriakose, the learned Additional Director General of Prosecution and Senior Counsel, for the State. 6. The learned Senior Counsel for the petitioner submits that the petitioner is innocent of all allegations and that he was falsely implicated in the case without any materials on record. According to him, before the implication of the petitioner in the said crime, already three rounds of investigation are over, and in none of the said investigation the involvement of the petitioner ever came out. The B.A.No. 1833 / 2023 5 implication of the petitioner, in this case, is only on the basis of the confession statement, which is not at all admissible in evidence as the same was made before a police officer. Apart from the confession statement, the only other material is call data records which itself is not sufficient to link the petitioner with the crime in question. It is further pointed out that, the petitioner had already undergone incarceration for more than 70 days and therefore, there is no purpose in continuing his detention. 7. On the other hand, the learned A.D.G.P vehemently opposes the contentions put forward by the petitioner. It is pointed out that the petitioner is one of the accused who had played a key role in planning the murder and also for harbouring the offenders who committed the murder. It is further pointed out that, the murder, which is the subject matter of this crime has occurred as a series of attacks and counter-attacks between two rival organizations, namely, Popular Front of India and RSS. After the murder of the deceased Sanjith, as a retaliation of the same, on 15.4.2022, one Subair, who belongs to the organization of the accused persons, was murdered. Immediately on the next date i.e. on 16.4.2022, one Sreenivasan, a member of the RSS, was murdered by the members of PFI as retaliation of the same. Thus, it is pointed out that, the situation in Palakkad is tense on account of the repeated murders due to the rivalry between two rival organizations, and since the petitioner being B.A.No. 1833 / 2023 6 one of the crucial persons responsible for the affairs of one of such organisation, the release of the petitioner would cause serious law and order problem in the locality, and the life of the petitioner itself would be in danger. Moreover, it is also the case of the learned ADGP that, the petitioner is not cooperating with the investigation, and hence the prayer of the bail is thereby stoutly opposed. 8. I have carefully gone through the materials placed on record and examined the contentions put forward by both sides. It is seen that one of the crucial materials which are relied on by the prosecution against the petitioner is the call data records. I have carefully perused the call data records and the same would indicate that during the period from 9.1.2021 to 7.3.2022, the petitioner was regularly in contact with some of the accused persons, such as A5, A7, A8, A10, and A21. The learned ADGP specifically highlights the pattern of the aforesaid call data records and points out that until the first conspiracy (i.e. on 14.8.2021 according to the prosecution), the frequency of the calls with the other accused was much lesser. However, it can be seen that there is a substantial increase in the frequency thereafter, which continued even after the commission of the murder. It is also the case of the prosecution that the 8[th] accused who was now absconding, had captured the images of scene of occurrence of the murder of Sanjith immediately after it took place, based on the instruction given by the petitioner on the previous day of B.A.No. 1833 / 2023 7 the murder. The aforesaid aspect is sought to be substantiated from the call data records, which would indicate that the petitioner had called the 8[th] accused on 14.11.2021 at 19.46 hours whereas the murder took place on 15.11.2021. On going through the entire call data records produced before me, I am of the view that the contention put forward by the learned ADGP cannot be simply brushed aside. As rightly pointed out, there were frequent calls being made between the petitioner and some of the accused persons during the days after the conspiracy started. It is evident that, the number of calls with some of the accused were very high, i.e.,211 calls between the petitioner and accused No.21, 80 calls with accused No.11 and 32 calls with accused No.10. As per the case of the prosecution, the aforesaid accused persons are having a decisive role in the commission of the offences. 9. Apart from the above, another crucial aspect which is relied on by the learned ADGP is the confession statement of the petitioner. It is true that as rightly pointed out by the learned Senior Counsel for the petitioner, the confession statement cannot be treated as a valid piece of evidence as far as the offence is concerned. However, the crucial aspect to be noticed in this regard is that, during the course of investigation, the same can have its own value in view of the fact that quite often the materials collected from such confession statement provide leads to the investigation officer and results in the collection B.A.No. 1833 / 2023 8 of the evidence substantiating the overt acts committed by the accused persons. Therefore, the confession statement at the stage of investigation cannot be simply brushed aside as a whole. When other materials are pointing out the possibility of involvement of the petitioner in the commission of the offence, along with the confession statement, those apsects have to be taken into consideration to decide the question as to whether the petitioner is to be released on bail or not. In this case, the call data records coupled with the confession statement do create grave suspicion as to the involvement of the petitioner, and therefore it is a matter to be investigated further. 10. Another crucial aspect to be noticed in this regard is the contention of the learned ADGP regarding the lack of cooperation on the part of the petitioner. It is pointed out that the mobile phone used by the petitioner could not be recovered by the prosecution. Initially, in the confession statement, the petitioner stated that, he had already sold the mobile phone which he used. But later, in the investigation, it was revealed that he entrusted the said mobile phone with some other person for the purpose of repairing, and after completing the said repair, he had already taken back the said mobile phone. It is an admitted fact that, the petitioner was regularly using the mobile phone and therefore, the attempt to suppress the said mobile phone also strengthens the grave suspicion as to the involvement of the B.A.No. 1833 / 2023 9 petitioner in the commission of the said crime. 11. Besides the same, yet another crucial aspect to be noted is that the petitioner's laptop is already recovered by the investigation team and on preliminary examination, it was revealed that, several data from the said laptop is already deleted. Therefore, the laptop is already sent for forensic analysis and the results are awaiting. 12. Thus, when taking into account all the aforesaid aspects, I am of the view that the prosecution is able to make out a prima facie case as to the involvement of the petitioner. The materials such as confession statement, call data records, suppression of mobile phone etc., are the materials which establishes a probable link between the petitioner and the crime. The forensic report after examining the laptop of the petitioner could also be another material which can supply further details as to the role of the petitioner in the commission of the offence. Thus, when all these are taken into consideration, I am of the view that there is a strong prima facie case as against the petitioner herein. 13. There is yet another aspect to be taken note of while deciding this issue. It is the specific case of the prosecution that the petitioner is one of the members who have a key role in the affairs of the PFI, an organisation which is banned by the Central Government due to its anti-national activities. The aforesaid organisation was B.A.No. 1833 / 2023 10 involved in a series of murders in various parts of the State. Therefore, the allegations raised against the petitioner cannot be treated lightly. Considering the nature of the functioning of the organisation in question, the possibility of repetitions of similar crimes ## cannot be ruled out. In **Rajesh Ranjan Yadav** v. **CBI (AIR 2007 SC** **451)** , it is observed that, while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. Apart from the above, as rightly pointed out by the learned ADGP, rival organization is also allegedly involved in similar acts as a retaliation for the activities of the PFI. Therefore, the safety of the petitioner, who being a person allegedly holding the key role in the organisational structure of the PFI is also another concern. 14. Thus, taking into account all the aforesaid aspects, I am of the view that the release of the petitioner on bail at this stage is neither warranted nor desirable under any circumstances. The investigation is in progress and the petitioner's release at this stage is likely to hamper the investigation. Therefore, I do not find any merit in this bail application, and accordingly, it is dismissed. ``` Sd/- ZIYAD RAHMAN A.A., JUDGE ``` pkk B.A.No. 1833 / 2023 11 ## `APPENDIX OF BAIL APPL. 1833/2023` |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE-1`|`THE TRUE COPY OF THE REPORT DT.23-1-2023`| ||`FILED BY THE INVESTIGATING OFFICER BEFORE`| ||`COURT OF JUDICIAL FIRST CLASS MAGISTRATE-`| ||`III, PALAKKAD`| |`ANNEXURE-2`|`TRUE COPY OF THE ORDER DTD.23-1-2023 IN`| ||`CRL.M.P.NO.446/2023 OF THE COURT OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE-III,`| ||`PALAKKAD.`| |`ANNEXURE-3`|`CERTIFIED COPY OF THE ORDER DATED 14-2-2023`| ||`IN CRL.M.C.NO.534/2023 OF THE HON'BLE`| ||`SESSIONS COURT, PALAKKAD.`|