Dismissed

Mr. Edapana Thodika v. State of Karnataka

Karnataka HC6 Nov 2024CRL.A/1110/2024

Case brief

AI extract

What is this about?

Appeals against rejection of bail by accused in the 2008 Bengaluru serial bomb blast cases under UAP Act and other offences. The High Court held no changed circumstances existed, trial was substantially complete with prosecution arguments over, delay was attributable to defence applications, and dismissed the appeals.

What the court decided

AI extract

Mr. Edapana Thodika Vs State of Karnataka — Bail and Remand | Karnataka HC (2024)

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CRIMINAL APPEAL NO.1110/2024 (21(NIA)) C/W CRIMINAL APPEAL NO.1108/2024 (21(NIA)) CRIMINAL APPEAL NO.1120/2024 (21(NIA)) CRIMINAL APPEAL NO.1121/2024 (21(NIA)) CRIMINAL APPEAL NO.1135/2024 (21(NIA)) CRIMINAL APPEAL NO.1136/2024 (21(NIA)) CRIMINAL APPEAL NO.1152/2024 (21(NIA)) CRIMINAL APPEAL NO.1168/2024 (21(NIA)) CRIMINAL APPEAL NO.1173/2024 (21(NIA))

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BETWEEN:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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MR. EDAPANA THODIKA SHARAFUDDEEN @ SHARAFU S/O EDAPANA THODIKA ZAINUDDEEN @ ABDUL SATTAR @ ABDUL SALAM @ SALEEM AGED ABOUT 40 YEARS R/AT NOORI MANZIL, KARUVAN KALLU KARIPOOL POST, KONDOTTY P S THIRUANGADI TALUK MALAPPURAM DISTRICT KERALA 673 575

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MR. ABDUL JABBAR @ SATTAR @ JABBAR S/O KUNJI BHAVA AGED ABOUT 45 YEARS R/AT THAYATTIL HOUSE KAVANJERE VALAMERUDUR POST MANGALAM VIA B P ANGADI TIRUR MALAPPURAM DISTRICT KERALA 673 575

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024

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AND CONNECTED MATTERS

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MR. V.P. MAHAMMAD SAKARIYA @ SAKARIYA S/O LATE KUNHI MAHAMMAD AGED ABOUT 30 YEARS R/AT VANIYAM PARAMBATH KUTTIYIL HOUSE PARAPPANANGADI VILLAGE PUTHAN PEEDIKA (PO) TIRUANGADI TALUK MALLAPURAM DISTRICT KERALA 673 575

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MR. BADRUDHEEN N. @ NOOR S/O NOOR MAHAMMAD AGED ABOUT 35 YEARS R/AT ULLATTIL HOUSE, RAZAK MANZIL KARUKAPPILLY LINE, ELAMAKKARA PO COCHIN 26, KERALA 673 575

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MR. FAIZAL S/O LATE ABDUL RAHEEM AGED ABOUT 34 YEARS R/AT URAVACHAL NEW QUARTERS THAZHE CHOWA, KANNUR CITY KANNUR DISTRICT, KERALA 673 575

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MR. UMAR FAROOQ @ UMAR-Ul-FAROOQ S/O CHEKUTTI HAZI AGED ABOUT 40 YEARS R/AT FATHIMA MANZEEL, CHATTIPADI PARAPPANANGADI, MALLAPURAM DISTRICT KERALA 673 575

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MR. IBRAHIM MOLVI @ IBRAHIM MOULAVI S/O LATE MOIDU AGED ABOUT 55 YEARS R/AT PATHUGAN HOUSE PADINJARETHARA PO VIA POZHUTHANA WAYNAD DISTRICT, KERALA 673 575

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MR. SAMEER @ MOHAMMAD SAMEER S/O LATE RAHAMATULLA AGED ABOUT 42 YEARS R/AT FAJANEST, MAZAPADAM THANA, KANNUR, KERALA 673 575

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MR. SARFUDDIN @ SHARFUDDIN S/O ABDUL RAHEMAN

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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AGED ABOUT 49 YEARS R/AT K.K. RAHIMAS HOUSE EDAKKADU PANCHAYATHI KADALAYI POST, KURUVA KANNUR 670 001

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MR. THAJUDDIN @ THAJUDDIN T.A. S/O ABDUL RAZAK R/AT KERAKKE THOPPIL HOUSE MAKHANAAYIMANNA, MANAMA POST PARAVOOR, ERNAKULAM (OWN HOUSE) PRESENT ADDRESS: KERAKKE THOPIL HOUSE VEDIMARA, MANAMA POST KUNJIRAMBAAYIL, PARAVOOR ERNAKULAM DISTRICT, KERALA 673 575

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MR. ABDUL KHADAR S/O ABDULLA AGED ABOUT 57 YEARS R/AT NO.78, NIRMALAGIRI HEGGALA VILLAGE AND POST VEERAJAPETE, KODAGU DSITRICT

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MR. SAABEER P.B. @ SAABEER P BHUHARI @ SABEER S/O BHUHARI AGED ABOUT 40 YEARS R/AT PUTHUKKADU HOUSE PAARAPPURAM, KUNNATTANADU TALUK PERAMBAVOOR ERNAKULAM 682 011 …APPELLANTS (COMMON)

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(BY SRI S. BALAKRISHNAN, ADVOCATE; APPEAL AGAINST APPELLANT NO.6 WITHDRAWN IN CRL.A.NO.1152/2024 VIDE ORDER DATED 21.09.2024)

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AND: STATE OF KARNATAKA BY CCB POLICE REP. BY SPL PP HIGH COURT BUILDING BENGALURU 560 001 …RESPONDENT (COMMON) (BY SRI VIJAYAKUMAR MAJAGE, SPP-II)

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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THESE CRIMINAL APPEALS ARE FILED U/S 21(4) OF NIA ACT PRAYING TO SET ASIDE THE ORDER DATED 12.02.2024 PASSED IN S.C.NO.1486/2010, S.C.NO.1484/2010, S.C.NO.1481/2010, S.C.NO.1482/2010, S.C.NO.1483/2010, S.C.NO.1485/2010, S.C.N0.1478/2010, S.C.NO.1479/2010 & S.C.NO.1480/2010 RESPECTIVELY ON THE FILE OF CCB POLICE PASSED BY THE HON'BLE XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (SPECIAL JUDGE FOR TRIAL OF NIA CASES) CCH-50 AT BANGALORE AND ENLARGE THE APPELLANTS ON BAIL IN CRIME NO.483/2008 FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B, 121, 121-A, 123, 212, 302, 307, 326, 435, 201 OF IPC, UNDER SECTION 3, 4, 5 AND 6 OF THE EXPLOSIVE SUBSTANCE ACT, 1908 AND UNDER SECTION 4 OF PREVENTION OF DAMAGE OF PUBLIC PROPERTY 1984 AND UNDER SECTION 3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT 1967.

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THESE CRIMINAL APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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Challenging the dismissal of their applications for grant of bail, accused Nos.4, 5, 8, 9, 10, 16, 17, 24, 27 to 30 in S.C.No.1478/2010 to 1486/2010 on the file of XLIX Additional

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City Civil and Sessions Judge, [Special Court for trial of NIA Cases], Bengaluru, have preferred the above appeals.

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The facts of the case are as follows:

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On 25.07.2008 in nine (09) places in Bengaluru, series of

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bomb blasts took place. In such blasts, one person was killed, several persons were injured and there was huge loss of

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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properties. Regarding those incidents, nine (09) cases were registered in nine (09) police stations in Benglauru, nine (09) charge sheets were filed against accused Nos.1 to 31 for the following offences:

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(1) Sections 120B, 121, 121A, 302, 307, 201, 326, 435 of IPC.

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(2) Sections 3, 4, 5 & 6 of The Explosive Substances Act, 1908.

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(3) Sections 3, 10, 11, 13, 16, 17, 18, 19 & 20 of The Unlawful Activities (Prevention), Act, 1967 (for short, 'UAP Act').

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(4) Sections 3 & 4 of Prevention of Damage to Public Property Act, 1984.

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The appellants filed successive bail petitions in the

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above cases before the trial Court. The same were opposed by the prosecution. The trial Court on hearing the parties by the impugned common order, has rejected the applications on the following grounds:

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(i) That earlier bail applications of the appellants were rejected on merits and the present applications have to be considered only on changed circumstances.

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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(ii) The only changed circumstance urged by the appellants is their long incarceration without trial. Substantial trial is already conducted and even the arguments were heard, at that stage the accused themselves have filed some applications.

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(iii) The offence under Section 16 of UAP Act and Section 302 of IPC are punishable with death or imprisonment for life. Therefore, the principle that if the accused have undergone more than 50% of the prescribed sentence they shall be released on bail does not apply.

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Sri.S.Balan, learned counsel for the appellants vehemently contends that the appellants are innocent and some of the witnesses, who were set up against them, have turned hostile. He further submits that the appellants have served under trial detention for about 16 years. Therefore, bail has to be granted to them. In support of his submissions, he relied on the following judgments:

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i. Sheikh Javed Iqbal vs. State of Uttar Pradesh reported in (2024) 8 SCC 293

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ii. Union of India vs. K.A.Najeeb reported in (2021) 3 SCC 713

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iii. Javed Gulam Nabi Shaikh vs. State of Maharashtra and another reported in 2024 SCC OnLine SC 1693

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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iv. Manish Sisiodia vs. Directorate of Enforcement 2024 SCC OnLine 1920

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v. Mohd.Muslim alias Hussain vs. State (NCT of Delhi) 2023 SCC OnLine 352

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vi. Gursewak Singh vs. State of Punjab in CRA-D No.454/2021 Disposed of on 09.11.2023 of High Court of Punjab & Harayana

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vii. Sri.Mohan Nayak N vs. State of Karnataka in Crl.P.No.7963/2023 Disposed of on 07.12.2023.

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Sri.Vijayakumar Majage, learned SPP-II opposes the appeals and submits that the earlier applications of the appellants were rejected on merits by the trial Court. Those judgments are confirmed by this Court and the apex Court. Therefore, the trial Court was justified in holding that there is no scope for consideration of new applications on merits. The substantial trial is already over and even the arguments of the prosecution were submitted. It is the appellants and other accused, who are procrastinating the matter. When the matter was set up for defence arguments, the accused went on filing

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the applications to recall the witnesses to summon the documents. Therefore, it is not open to them to claim that trial was delayed and for that reason they are entitled to bail. Moreover as the offence alleged are punishable with death or imprisonment for life, the question of appellants serving more than 50% of the prescribed sentence does not arise and such

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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principle is not applicable. The trial Court has exercised the discretion on assigning sound reasons. The judgments relied on by the appellants are not applicable. Hence, the appeals are liable to be rejected.

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Analysis

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Though it is not specifically stated in the appeal memo or the applications before the trial Court, it is not disputed that the appellants/accused filed multiple bail applications before the trial Court unsuccessfully. The materials placed by the prosecution and the appellants themselves before this Court show that the earlier rejection orders passed by the trial Court were confirmed by this Court in the following cases:

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Sl. No.	Case No.	Accused No.	Disposal date
1	Crl.A.No.1006/2014	A-24	13.02.2015
2	Crl.P.No.9925/2017	A-6, 8 & 29	23.04.2018
3	Crl.A.No.1246/2021	A-29	29.11.2021
4	Crl.A.No.1290/2021	A-24	15.02.2023

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The judgment in Crl.A.No.1290/2021 shows that the accused No.31 challenged the dismissal of his application by the trial Court and this Court and that was confirmed by the Apex Court holding that the act of the accused in purchasing

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explosives which were used for commission of crime affects the interest of the nation at large and terrorize the public.

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When the accused approached the Court for a discretionary relief like bail, they should approach the Courts with clean hands. All the aforesaid facts are suppressed by the appellants/accused in the appeal memo and the bail applications filed before the trial Court. As rightly pointed out by the trial Court since the earlier applications were rejected on merits, the appellants could file subsequent application to seek the bail only on the ground of changed circumstances. The only changed circumstance urged by Sri.Balan, learned counsel for the appellants is that the appellants/accused are in custody for about 16 years, the trial is not likely to be concluded in the near future, therefore, they are entitled to bail. As rightly pointed out by the trial Court, the offences alleged against the appellants under Section 16 of UAP Act and Section 302 of IPC are punishable with death or imprisonment for life. In such cases, the principle that if the accused have served more than 50% of prescribed period of sentence they shall be released on bail does not arise or cannot be invoked. Further, the delay in trial should be attributable to the prosecution. It is submitted

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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that in S.C.No.1478/2010, which consists of maximum charge sheet witnesses, the number of charge sheet witnesses is 308, out of them 230 witnesses are already examined. It is also not disputed that the arguments of the prosecution were also concluded. When the matter was set down for defence arguments, the accused have filed the following applications on

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different dates as follows:

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Sl.	Date	Application
No.
1	09.07.2024	Application under Section 91 read with Section 243 of Cr.P.C. to summon document from SomwarpetPolice Station.
2	16.07.2024	Application under Section 311 of Cr.P.C. to recall PW-138 for cross- examination and DW-3 for productionofGSTbill.
3	30.08.2024	Application under Section 311 of Cr.P.C. to recall DW-3 for production of VAT certificate.

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Learned SPP-II produced for perusal of this Court

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the order dated 05.08.2024 passed by the trial Court on the application to recall the witness Smt.Jiji, who is examined as PW-138, PW-117, PW-110, PW-111, PW-113, PW-115, PW-109, PW-113, PW-117 respectively in S.C.No.1478/2010 to S.C.No.1486/2010. The reading of the said order shows that the said witness was examined on 28.11.2014. Notably the reason assigned for not cross-examining the said witness or not filing

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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the necessary application promptly is the oversight of the defence counsel to do the needful. The said order further shows the application was allowed on cost of Rs.10,000/-. It is submitted that even that cost is not deposited sofar. It is further submitted that now the case is listed on 11.11.2024 and prosecution is always ready to swiftly complete the trial. The above facts and circumstances clearly show that the delay, if any, is not account of any indolence on the part of the prosecution.

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Though innumerable judgments are cited by the learned counsel for the appellants, the principle in all those cases is one and the same viz., the bar under Section 43D and 5 of UAP Act is not applicable to the constitutional Courts and ordinarily the Courts would be obligated to enlarge the accused on bail regardless of statutory restrictions, if there is absence of possibility of timely conclusion of trial and considering the period of custody. As already noted, in the present case, trial was already concluded, even the arguments of prosecution was over. At the instance of accused, one witness is recalled. It is for the accused to conduct the cross-examination promptly. Therefore, those judgments cannot be justifiably applied to the

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NC: 2024:KHC:44759-DB CRL.A No.1110/2024 AND CONNECTED MATTERS

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facts of the case or they do not advance the case of the appellants/accused.

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It is also material to note that in the earlier course of litigations it is observed that there are reasonable grounds to believe that the appellants/accused are involved in anti-national activity. Therefore there are no grounds to show indulgence on the ground that there is delay in trial.

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The trial Court on judicious application of the material on record and supplying the sound reasons has rejected the applications. The applications and appeals are apparently vexatious. Therefore, the following:

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ORDER

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The appeals are dismissed.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR

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List No.: 1 Sl No.: 29