Allowed

Thasleem.K.K v. State of Kerala

Kerala HC8 Oct 2018Bail Appl./1740/2018

Case brief

AI extract

What is this about?

Hearing a bail application filed by a 3rd accused in S.C.No.347/2016 under the National Investigating Agency Act, 2008. The court allowed the bail application, considering the applicant's nearly three-year detention and the maximum possible sentence of three years for the alleged offence under Section 22 of the UAPA.

What did the court decide?

Applicant to be released on bail, executing a bond for Rs.1,00,000/- with two solvent sureties each for Rs.1,00,000/-.

Thasleem.K.K Vs State of Kerala — Bail and Remand | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940

¶5

Bail Appl..No. 1740 of 2018

¶6

CRIME NO. 1652/2015 OF ERNAKULAM NORTH POLICE STATION, ERNAKULAM

¶7

PETITIONER/ACCUSED NO.3:

¶8

THASLEEM K.K., AGED 38 YEARS, S/O. ABDUL RAHIMAN, KUNJIKANDI HOUSE, AZAD ROAD, KANNUR.

¶9

BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY

¶10

RESPONDENT/STATE:

¶11

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,COURT OF SESSIONS, ERNAKULAM(CRIME NO.1652/2015 OF ERNAKULAMTOWN NORTH POLICE STATION, ERNAKULA DISTRICT

¶12

BY SR. PUBLIC PROSECUTOR SMT. REKHA C. NAIR

¶13

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶14

ORDER

¶15

This application is filed under Section 439 of the Code of

Criminal Procedure.

BA:1740/18

The applicant herein is the 3^rd accused in S.C.No.347 of 2016 on the file of the Additional Sessions Judge-IV, Ernakulam. He was arrested in connection with the aforesaid Crime on 19.11.2015 and he remains in custody. After completion of investigation, final report was laid by the police before the Court of Sessions, Ernakulam. The case was later made over to the IVAdditional Sessions Court, where the case is pending as aforesaid.

¶20

The prosecution allegation as is revealed from the charge laid before the court below can be encapsulated in the following manner:

¶21

The 1^st accused, one Thadiyantavide Nazeer, is a member of a banned terrorist organization, known as “Indian Mujahideen”. He is alleged to have contacted the accused Nos. 2 and 3 and their support and assistance were sought to further terrorist activities in the State. The communication was through letters. The 1^st accused incidentally was standing trial in the Bangalore Bomb Blast case. The brother of the applicant was also an accused in the said case. The accused are alleged to have entered into a criminal conspiracy to sabotage the trial of the Bangalore case by somehow influencing the witnesses and by

¶22

BA:1740/18

¶23

¶24

deterring them from speaking in favour of the prosecution. To effectuate the said plan, the accused Nos. 1 to 3 met at the Bangalore Parappana Agrahara Jail on 8.06.2015, 27.07.2015 and 17.08.2015. Detailed plans were hatched and the mode to achieve the objective were laid down by the 1^st accused. This was by cryptic coded letters and notes which were handed over to the 2^nd accused. Directions were also issued by the 1^st accused to the 2^nd accused for carrying out terrorist activities in various parts of the country. It is alleged that as directed by the 1^st accused, the accused Nos. 2 and 3 approached CW 23 – Rupesh M.P., CW 24 – Rayees, CW 25- Bushra and CW 26 Ramachandran, who are all witnesses in the Bangalore Bomb Blast case, and threatened them with violence in order to deter them from deposing in favor of the prosecution.

¶25

The learned counsel appearing for the applicant

¶26

submitted that insofar as the applicant herein is concerned , the main allegation is that he had committed an offencce under section 22 of the Unlawful Activities (Prevention) Act, 1967. The said offense is punishable with imprisonment which may extend to three years and with fine. The applicant has been undergoing

¶27

BA:1740/18

¶28

¶29

incarceration from 19.11.2015 for almost three years. A bare reading of the materials, which have been collected during investigation will clearly reveal that the allegation against the applicant is limited to Section 22 of the UAPA Act and nothing more. It is submitted that there are no materials to show that the applicant had done any act with intent to further the activity of the terrorist organization or had invited support for its activities. There is no case that the applicant had arranged, managed or assisted in organizing a meeting for the purpose of supporting the terrorist organization or to further its activities. The learned counsel has referred to the statement of witnesses in the final report, who are CW23 to 27, and would contend that their statements would only reveal that the applicant herein had made attempts to threaten the witnesses. It is further urged that those witnesses have already been examined in the Bangalore bomb blast trial and they had testified in favour of the prosecution. According to the learned counsel, the brother of the applicant herein was also an accused in the bomb blast case and all that he had done was to visit his brother once or twice while he was languishing in custody. The long period of incarceration undergone by the applicant is highlighted by the learned counsel to contend that even if he is found guilty of the

¶30

BA:1740/18

¶31

¶32

offence, he cannot be convicted for more than three years. It is submitted that the likely of the trial taking place in the instant case in the near future is remote and even the prosecution does not have a case that the applicant poses any unequivocal threat to the safety of an individual or of the community . The learned counsel would also refer to the decisions of the Apex Court in CBI Vs Prakashan and Ors [MANU/SC/1218/2017], a decision of the Full Bench of the Patna High Court in Bahadur Kora V State of Bihar [2015 CrLJ 2134] and a judgment of a Division Bench of this Court dated 23.3.2017 in Crl. Appeal No. 283 of 2017 to contend that an application under Section 439 of the Cr.P.C can be maintained before this Court. According to the learned counsel, the case having been investigated by the State Police and is being tried by the learned Sessions Judge as provided for under the Cr.P.C., the special procedure provided under the National Investigating Agency Act, 2008, will not be applicable.

¶33

The learned Public Prosecutor has strenuously opposed the prayer. A statement filed by the Assistant Commissioner of Police, Ernakulam is also placed on record. In the said statement, it is stated that the 2^nd accused along with the 3^rd accused had

¶34

BA:1740/18

¶35

¶36

personally, by direct and indirect methods, made attempts to contact and threaten the witnesses of the Bangalore bomb blast case as per the directions of the 1^st accused. It is further submitted that the allegations being grave, the mere delay in concluding the trial will not inure to the benefit of the applicant.

¶37

I have considered the submissions advanced and have

¶38

gone through the final report that has been laid before the Court below. It appears from the final report that the specific allegation against the applicant is that he had threatened CW 23 to CW 26 with a view to dissuade them from deposing in favor of the prosecution in the Bangalore Bomb Blast case. Even assuming that the said allegations are true, the maximum punishment that can be imposed on the applicant is 3 years and with fine. The applicant herein has been in custody for almost three years. Insofar as the offence under Section 39 of the Act is concerned, the prosecution has not placed any materials to show that the applicant with intend to further the activity of a terrorist organization invited support for the same or that he had arranged, managed or assisted in arranging and managing a meeting with the knowledge that it is to support or to further the activity of the terrorist organization. It

¶39

BA:1740/18

¶40

¶41

would be a travesty of justice to detain the applicant in custody for a further period in view of the nature of allegations against him. The applicant having undergone detention for about 3 years, I am of the view that he can now be enlarged on bail on conditions. It is made clear that any observations made above shall not be taken as expressions on merits of the case.

¶42

In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:

¶43

1). The applicant shall appear before the Investigating Officer on the 1^st Saturday of every month between 9 a.m. and 11 a.m., till the trial is over.

¶44

2). He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence.

¶45

3). He shall not commit any offence while on bail.

¶46

4). He shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

¶47

BA:1740/18

¶48

¶49

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application

¶50

for cancellation, if any, and pass appropriate orders in accordance

¶51

with the law.

¶52

SD/-

¶53