1. Criminal appeal against refusal of bail to accused charged with terrorist act and murder under UA(P) Act. (Para 1 , 2 )
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2026 Supreme(Online)(Ker) 57587
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anil K. Narendran, Muralee Krishna S., JJ
Abdul Kader – Appellant
Versus
Union of India – Respondent
CRL.A No. 1749 OF 2025 | Crl.M.P.No.381 OF 2025 | S.C No.2 OF 2023 | RC 02/2022
Important Points
The grant of bail under the Unlawful Activities (Prevention) Act is not mechanically triggered by prolonged incarceration but requires balancing the statutory bar with constitutional rights, considering the gravity of the offence, the role of the accused, and the strength of the prima facie case.
Subject
Criminal Law - Bail & Anticipatory Bail
Act Referred
Unlawful Activities (Prevention) Act, 1967: S.15, S.16, S.17, S.18, S.18-A, S.18-B, S.20, S.22-C, S.23, S.38, S.39, S.40, S.43-A, S.43-B, S.43-D, S.13, S.7
Constitution of India: Art.21, Art.22, Art.14
Power of Prevention of Money Laundering Act, 2002: S.19, S.45, S.3, S.4, S.62
Criminal Procedure Code, 1973: S.173, S.436-A, S.437, S.438, S.439, S.50, S.58
Code of Criminal Procedure, 1973: S.120-B, S.34, S.118, S.119, S.109, S.115, S.143, S.144, S.147, S.148, S.149, S.153-A, S.201, S.212, S.302, S.341, S.449
Religious Institutions (Prevention of Misuse) Act, 1988: S.3, S.7
Bharatiya Nagarik Suraksha Sanhita, 2023: S.47, S.193, S.482, S.479
Bharatiya Nyaya Sanhita, 2023: S.61, S.191
Constitution of India: Art.21, Art.22, Art.14
Power of Prevention of Money Laundering Act, 2002: S.19, S.45, S.3, S.4, S.62
Criminal Procedure Code, 1973: S.173, S.436-A, S.437, S.438, S.439, S.50, S.58
Code of Criminal Procedure, 1973: S.120-B, S.34, S.118, S.119, S.109, S.115, S.143, S.144, S.147, S.148, S.149, S.153-A, S.201, S.212, S.302, S.341, S.449
Religious Institutions (Prevention of Misuse) Act, 1988: S.3, S.7
Bharatiya Nagarik Suraksha Sanhita, 2023: S.47, S.193, S.482, S.479
Bharatiya Nyaya Sanhita, 2023: S.61, S.191
Headnote
(A) Unlawful Activities (Prevention) Act, 1967 - Sections 2(o), 13, 15, 16, 18, 20 and 43-D(5) - National Investigation Agency Act, 2008 - Section 21 - Code of Criminal Procedure, 1973 - Section 439 - Constitution of India, 1950 - Articles 21 and 22(1) - Bail - Terrorism - The proviso to Section 43-D(5) of the UA(P) Act imposes a bar on the grant of bail if the court, on a perusal of the case diary or report, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The degree of satisfaction for this purpose is lighter than that required for considering a discharge application or framing of charges. (Paras 55, 130)
(B) Constitutional Law - Fundamental Rights - Articles 21 and 22 - Right to Speedy Trial and Right to be Informed of Grounds of Arrest - The requirement under Article 22(1) to inform the arrested person of the grounds of arrest is mandatory. Non-compliance vitiates the arrest. However, the requirement to furnish grounds of arrest in writing was made prospective from the date of the judgment in Pankaj Bansal (03.10.2023). For arrests made before this date, oral communication of grounds is sufficient compliance. (Paras 20, 31, 38, 42)
(C) Bail - Statutory Restrictions vs. Constitutional Rights - The presence of statutory restrictions like Section 43-D(5) of the UA(P) Act does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. The rigours of such provisions will 'melt down' where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. However, the mere passage of time does not mechanically entitle an accused to release; the court must consider the gravity of the offence, the role of the accused, and the strength of the prima facie case. (Paras 84, 113, 114, 115, 117, 120, 121, 122, 123, 134, 137, 138, 151, 152)
(D) Criminal Law - Parity in Bail - The principle of parity while granting bail must focus upon the role of the accused. Parity is not the law if an illegality or irregularity has been committed in favour of another, as Article 14 is not meant to perpetuate illegality. (Paras 61, 62, 78, 81)
Facts of the case:
Two appellants, who are accused nos. 19 and 20 in a case before the Special Court for NIA Cases, filed an appeal against the rejection of their bail application. They were arrested in 2022 for their alleged involvement in the murder of one Sreenivasan, which was part of a larger conspiracy by the Popular Front of India (PFI) to commit terrorist acts. The NIA took over the investigation, and the final report alleged offences under the IPC and the UA(P) Act, including Sections 16, 18, and 20. The appellants argued that they had been in custody for over 4 years and 1 month, that there was a delay in the trial due to a stay order by the Supreme Court, and that certain other co-accused had been granted bail.
Findings of Court:
The Court held that the Special Court's finding of a prima facie case against the appellants was neither arbitrary nor illegal. The Court found that the period of incarceration (4 years and 4 months) had not exceeded a substantial part of the prescribed sentence (imprisonment for life or death), and therefore, they were not entitled to bail on the ground of prolonged incarceration or delay in trial. The Court also held that the claim for parity with other co-accused was unsustainable as the roles attributed to the appellants were more serious, including the detection of the victim's DNA on their clothes and vehicles. The Court rejected the argument that the arrest was illegal for not providing written grounds of arrest, as the arrest occurred before the 2023 judgment requiring such practice.
Issues: The main issues were whether the appellants were entitled to bail on the grounds of (a) non-communication of written grounds of arrest, (b) existence of a prima facie case under the UA(P) Act, (c) parity with other bailed co-accused, and (d) prolonged incarceration and delay in trial.
Ratio Decidendi: The court ruled that for arrests made prior to the ruling in Pankaj Bansal (2024) regarding mandatory written communication of grounds, that requirement does not apply retrospectively. While constitutional courts can grant bail despite the bar in Section 43-D(5) of the UA(P) Act, this is not an automatic right based on delay alone. The court must balance the length of incarceration with the gravity of the offence, the role of the accused, and the strength of the prima facie case. Here, the period of custody had not reached a point where the statutory restriction could be said to have 'melted down'.
Result: Criminal appeal dismissed. Respondents/Prosecution: Union of India represented by National Investigation Agency; Appellant/Defence: The two accused persons (Abdul Kader and Firoz). No dissenting opinion. (Para 157)
(B) Constitutional Law - Fundamental Rights - Articles 21 and 22 - Right to Speedy Trial and Right to be Informed of Grounds of Arrest - The requirement under Article 22(1) to inform the arrested person of the grounds of arrest is mandatory. Non-compliance vitiates the arrest. However, the requirement to furnish grounds of arrest in writing was made prospective from the date of the judgment in Pankaj Bansal (03.10.2023). For arrests made before this date, oral communication of grounds is sufficient compliance. (Paras 20, 31, 38, 42)
(C) Bail - Statutory Restrictions vs. Constitutional Rights - The presence of statutory restrictions like Section 43-D(5) of the UA(P) Act does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. The rigours of such provisions will 'melt down' where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. However, the mere passage of time does not mechanically entitle an accused to release; the court must consider the gravity of the offence, the role of the accused, and the strength of the prima facie case. (Paras 84, 113, 114, 115, 117, 120, 121, 122, 123, 134, 137, 138, 151, 152)
(D) Criminal Law - Parity in Bail - The principle of parity while granting bail must focus upon the role of the accused. Parity is not the law if an illegality or irregularity has been committed in favour of another, as Article 14 is not meant to perpetuate illegality. (Paras 61, 62, 78, 81)
Facts of the case:
Two appellants, who are accused nos. 19 and 20 in a case before the Special Court for NIA Cases, filed an appeal against the rejection of their bail application. They were arrested in 2022 for their alleged involvement in the murder of one Sreenivasan, which was part of a larger conspiracy by the Popular Front of India (PFI) to commit terrorist acts. The NIA took over the investigation, and the final report alleged offences under the IPC and the UA(P) Act, including Sections 16, 18, and 20. The appellants argued that they had been in custody for over 4 years and 1 month, that there was a delay in the trial due to a stay order by the Supreme Court, and that certain other co-accused had been granted bail.
Findings of Court:
The Court held that the Special Court's finding of a prima facie case against the appellants was neither arbitrary nor illegal. The Court found that the period of incarceration (4 years and 4 months) had not exceeded a substantial part of the prescribed sentence (imprisonment for life or death), and therefore, they were not entitled to bail on the ground of prolonged incarceration or delay in trial. The Court also held that the claim for parity with other co-accused was unsustainable as the roles attributed to the appellants were more serious, including the detection of the victim's DNA on their clothes and vehicles. The Court rejected the argument that the arrest was illegal for not providing written grounds of arrest, as the arrest occurred before the 2023 judgment requiring such practice.
Issues: The main issues were whether the appellants were entitled to bail on the grounds of (a) non-communication of written grounds of arrest, (b) existence of a prima facie case under the UA(P) Act, (c) parity with other bailed co-accused, and (d) prolonged incarceration and delay in trial.
Ratio Decidendi: The court ruled that for arrests made prior to the ruling in Pankaj Bansal (2024) regarding mandatory written communication of grounds, that requirement does not apply retrospectively. While constitutional courts can grant bail despite the bar in Section 43-D(5) of the UA(P) Act, this is not an automatic right based on delay alone. The court must balance the length of incarceration with the gravity of the offence, the role of the accused, and the strength of the prima facie case. Here, the period of custody had not reached a point where the statutory restriction could be said to have 'melted down'.
Result: Criminal appeal dismissed. Respondents/Prosecution: Union of India represented by National Investigation Agency; Appellant/Defence: The two accused persons (Abdul Kader and Firoz). No dissenting opinion. (Para 157)
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional law
Advocates:
For the Appellants/Petitioners: E.A. Haris, P.P. Harris, Renjith B. Marar
For the Respondents: Sreenath Sasidharan, Sasthamangalam S. Ajithkumar (Sr.), Special Prosecutor, NIA
For the Appellants/Petitioners: E.A. Haris, P.P. Harris, Renjith B. Marar
For the Respondents: Sreenath Sasidharan, Sasthamangalam S. Ajithkumar (Sr.), Special Prosecutor, NIA
Table of Contents
2. Appellants contended arrest illegal for lack of written grounds; NIA argued compliance and prima facie case. (Para 18 )
JUDGMENT
Anil K. Narendran, J.
The appellants - Abdul Kader and Firoz – are the 19th and 20th accused in S.C.No.2 of 2023 on the file of the Special Court for the Trial of NIA Cases, Ernakulam, and the petitioners in Crl.M.P.No.381 of 2025, a bail application filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC). The appellants have filed this criminal appeal, invoking the provisions under Section 21 of the National Investigation Agency Act, 2008 (NIA Act), to set aside the order dated 09.09.2025 of the Special Court in Crl.M.P.No.381 of 2025 in S.C.No.2 of 2023 (Annexure A10), and to grant them regular bail. The 1st appellant-19th accused was arrested on 24.04.2022, and the 2nd appellant-20th accused was arrested on 26.04.2022, in crime No.318 of 2022 of Palakkad Town South Police Station. After the National Investigation Agency took over the investigation of the said case as a connected offence, the 19th and 20th accused were produced before the Special Court on production warrants, and the National Investigation Agency recorded their formal arrest on 10.02.2023.
2. Factual Matrix:- Crime No.318 of 2022 of Palakkad Town South Police Station was registered on the allegation that Popular Front of India (PFI) leaders and members conspired together with the intention to create terror and communal divide in the society, conducted intense recce of several Hindu leaders of that locality, whom they had shortlisted using their ‘Reporter Wing’ and subsequently selected and brutally murdered one Sreenivasan, who was available, on 16.04.2022, at Palakkad. The Kerala Police filed a charge sheet in that case against 44 persons for offences under Sections 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 read with Section 149 of the Indian Penal Code, 1860 (IPC) and Section 3 (a)(b)(d) read with Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988.
3. It is alleged that the PFI, a society registered under the Societies Registration Act, 1860, was formed in the year 2006, merging the three radical organisations with extremist ideologies, namely, National Democratic Front (NDF) from Kerala, Manitha Neethi Pasarai (MNP) from Tamil Nadu and Karnataka Forum for Dignity (KFD) from Karnataka. The founder leaders of PFI were former cadres and leaders of the Students Islamic Movement of India (SIMI), an organisation proscribed by the Government of India in 2001. PFI has the strongest presence in Kerala, where it has been repeatedly involved in cases of murder, rioting, intimidation, and having links with terrorist organisations.
4. PFI has frontal organisations like Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organisation (NCHRO), National Women’s Front (NWF), Junior Front, Empower India Foundation and Rehab Foundation, in addition to their political wing, Social Democratic Party of India (SDPI). On 28.09.2022, the Government of India declared the Popular Front of India and its affiliates/frontal organisations as an Unlawful Association, as per the provisions of theUnlawful Activities (Prevention) Act, 1967, for brevity ‘the UA (P) Act’.
5. The Central Government received credible information that the office bearers, members and cadres of PFI and its affiliates in Kerala have conspired to instigate communal violence and radicalise its cadres to commit terrorist acts in the State of Kerala and various other parts of the country. PFI members and office bearers based in Kerala having earlier association with the proscribed terrorist organisation, SIMI, maintain operational nexus with other proscribed international terrorist organisations like Lashkar-e-Taiba (LeT), Islamic State of Iraq and Syria (ISIS)/Daesh and Al-Qaida.
6. Some of the members of PFI cadres are also members of the above proscribed terrorist organisations. PFI has created an organisational web, which is stretched to recruit vulnerable Muslim you
