Back
2021 Supreme(Online)(KER) 40178
HIGH COURT OF KERALA
K VINOD CHANDRAN, M.R.ANITHA, JJ
SHAFEEQ – Appellant
Versus
UNION OF INDIA – Respondent
CRL.A/644/2020
SRI.P.C.NOUSHAD, SRI.E.A.HARIS; ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA; SRI.ARJUN AMBALAPATTA, SPL.PP FOR NIA CASES
Under UAPA, if reasonable grounds exist to believe the accusation is prima facie true, bail cannot be granted.
Headnote:
Bail - Appeal against Bail Denial - IPC (Various Secs) and UAPA - The court analyzed the provisions of the UAPA and IPC concerning evidence requirement and the burden of proof, ultimately upholding the denial of bail due to prima facie involvement and potential risks to trial integrity.
Fact of the Case:
The appellant, accused of terrorism and conspiracy under multiple sections of IPC and UAPA, sought bail after being in custody for nearly 11 months, claiming innocence and lack of evidence against him. The previous trials had seen hostile witnesses due to intimidation.
Finding of the Court:
The court found that there were reasonable grounds to believe the accusations against the appellant were prima facie true, citing previous evidence and the serious nature of the charges, particularly concerning conspiracy to commit a terrorist act.
Issues: Whether the appellant is entitled to bail given the serious accusations and alleged conspiratorial actions related to a terrorist activity?
Ratio Decidendi: The court held that under the UAPA, if there are reasonable grounds to believe the accusation is true, bail must be denied, emphasizing the seriousness of the charges and potential risks to the trial.
Final Decision: The appeal for bail was dismissed.
JUDGMENT
Dated : 31st 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 4th 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.
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 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 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 pe
