Ismail Shafi K vs State By National Investigation ...
2023 Latest Caselaw 6867 Kant

                                       CRL.A No.1094 of 2023

                                 -1-



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 29TH DAY OF SEPTEMBER, 2023

                           PRESENT
  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                                 AND
          THE HON'BLE MR JUSTICE ANIL B KATTI


     CRIMINAL APPEAL NO. 1094 OF 2023 (21(NIA))
BETWEEN:

1. Ismail Shafi K,
S/o. Adam Kunhi K.,
Aged about 39 years,
R/at Ground Floor,
Shafi Apartment,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574212.

2. K. Mahammad Iqbal
@ Iqbal Bellare,
Aged about 36 years,
S/o. Adam Kunhi,
R/at 1-53, Kunhi Gudde,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574 212.

3. Shaheed M.,
S/o. Mohidin U.,
Aged about 40 years,
R/at Kuni Gudde,
Bellare Village, Sullia Taluk,
Dakshina Kannada - 574212.
                                                 ...Appellants
(By Sri. Mohammed Tahir, Advocate)
                                              CRL.A No.1094 of 2023

                                 -2-



AND:

State by National Investigation Agency
Ministry of Home Affairs GOI,
Rep by Spl. Public Prosecutor
Office at High Court Complex,
Opp. Vidhana Soudha,
Bangalore - 560001.
                                                       ...Respondent
(By Sri. Prasanna Kumar P., Special Public Prosecutor)

                                 ****

       This Criminal Appeal is filed under Section 21(4) of the
National Investigation Agency Act, 2008, praying to set aside
the impugned order of rejection of bail at Annexure A,
appreciate the bail application filed under Section 439 of
Cr.P.C.   at    Annexure   B   and      consequently    enlarge    the
appellants/accused No.9, accused No.10 and accused No.11 on
bail in Special C.C.No.123/2023 for the alleged offences
registered by the respondent Agency under Section 302, 153-A,
120B, 212 read with Section 34 of IPC, Sections 16, 18, 18-A,
19 and 20 of U.A.(P) Act and Section 25-1A of Arms Act,
pending on the file of the 49th Additional City Civil and Sessions
Judge, Special Court for Trial of NIA Cases CCH-50 at
Bangalore in the interest of justice and equity.


       This Criminal Appeal having been heard through physical
hearing/video     conferencing     hearing     and     reserved    on
31-08-2023, coming on for pronouncement of judgment, this
day,   Dr.     H.B.PRABHAKARA        SASTRY,     J.,   delivered   the
following :
                                      CRL.A No.1094 of 2023

                            -3-



                     JUDGMENT

The appellants herein who are accused No.9,

accused No.10 and accused No.11 respectively before the

learned XLIX Additional City Civil and Sessions Judge

(Special Court for Trial of NIA Cases) (CCH-50) at

Bengaluru, (hereinafter for brevity referred to as "the

Special Court"), in Special C.C.No.123/2023, have filed the

present appeal, challenging the order of rejection of their

bail application under Section 439 of the Code of Criminal

Procedure, 1973 (hereinafter for brevity referred to as "the

Cr.P.C.") dated 29-04-2023, for the offences punishable

under Sections 302, 153A, 120B, 212 read with Section

34 of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as "the IPC"), Sections 16, 18, 18A and 20 of

the Unlawful Activities (Prevention) Act, 1967 (hereinafter

for brevity referred to as "the UAP Act") and Section

25(1A) of the Arms Act, 1959 (hereinafter for brevity

referred to as "the Arms Act").

CRL.A No.1094 of 2023

2. The summary of the case of the prosecution in

the Special Court was that, the first informant by name

Sri. Madhu Kumar was working as a Cleaner in Akshaya

Fresh Chicken Farm Shop at Mastikatte area of Bellare

Village, Sullia Taluk. The deceased Sri. Praveen Nettaru

was the owner of the said Shop. On the date 26-07-2022,

at about 8:30 p.m., the deceased Sri. Praveen Nettaru,

after closing his business was about to go to his home on

his motor cycle. At that time, the first informant went

inside the Shop to bring the rain coat and he heard

shouting noise outside the Shop. The first informant

immediately rushed out of the shop and saw the deceased

Praveen Nettaru lying on the road about 50 feet away

from his Motor cycle. The first informant also saw three

unknown assailants fleeing away on a Splendor Motor

Cycle towards Puttur Town along with weapons in their

hands. Sri. Praveen Nettaru had sustained injuries on his

head and neck area. He was shifted to Pragathi Hospital

in Puttur Town in an Ambulance. The Doctors in the

Hospital, after examining the injured Praveen Nettaru, CRL.A No.1094 of 2023

declared that he was brought dead. In that regard, the

first informant lodged a written first information

(complaint) with Bellare Police. The said complaint was

registered in FIR No.63/2022 on the date 27-07-2022.

During the course of investigation of the case, the

Karnataka State Police invoked Sections 16 and 18 of the

UAP Act, besides Section 120B of the IPC against the

accused persons alleging that they have killed Praveen

Nettaru who was District Executive Committee Member of

Bharatiya Janatha Party Yuva Morcha, Dakshina Kannada

District, with an intention to strike terror among the

people in the locality.

The Central Government received the information

regarding the registration of FIR No.63/2022 at Bellare

Police Station, Dakshina Kannada District, Karnataka

State, and opined that scheduled offences

under the National Investigation Agency Act, 2008

(hereinafter for brevity referred to as "the NIA Act") have

been committed and considering the gravity of the

offences and their inter-state ramifications, the CRL.A No.1094 of 2023

Government of India, Ministry of Home Affairs, CTCR

Division, North Block, New Delhi, vide MHA Order

No.11011/68/2022/NIA dated 03-08-2022 issued order as

per the provisions of sub-section (4) of Section 6 read with

Section 8 of the NIA Act and directed the National

Investigation Agency, Bengaluru (hereinafter for brevity

referred to as "the NIA") to take up the investigation of

the case.

Accordingly, the NIA took up the investigation of FIR

No.63/2022 of Bellare Police Station, by re-registering it

as RC-36/2022/NIA/DLI on the date 04-08-2022 under

Sections 120B, 302 read with Section 34 of the IPC and

under Sections 16 and 18 of the UAP Act.

During the course of investigation, the NIA came to

know that the act of killing of Praveen Nettaru was in

retaliation of the killing of one Sri. Masood in an assault at

Kalanja village, eight kilometers away from Bellare village

on the date 19-07-2022. The NIA arrested fourteen (14)

accused persons and filed a preliminary charge sheet

against the said fourteen (14) accused and sixteen (16) CRL.A No.1094 of 2023

absconding accused persons before the Special Court, for

the offences punishable under Sections 302, 153A, 120B,

212 read with Section 34 of the IPC, under Sections 16,

18, 18A, 19 and 20 of the UAP Act and under Section 25

(1A) of the Arms Act.

During the course of further investigation, the

accused No.20 was apprehended and a supplementary

charge sheet was filed as against the said accused No.20

and also accused No.21. The further investigation in the

matter is still under progress.

The Trial Court has taken cognizance of the aforesaid

offences and registered a case as against the accused

persons.

3. The present appellants, who are accused No.9,

accused No.10 and accused No.11 respectively preferred

an application seeking the relief of regular bail under

Section 439 of the Cr.P.C., before the Special Court,

where the matter is pending in Special C.C.No.123/2023.

CRL.A No.1094 of 2023

4. After hearing the learned counsels from both side,

the bail application filed by the appellants came to be

rejected vide the impugned order of the Special Court

dated 29-04-2023. Aggrieved by the same, the applicants

in the aforesaid bail application i.e. accused No.9, accused

No.10 and accused No.11 have filed the present appeal

under Section 21 (4) of the NIA Act.

5. The appellants (accused No.9, accused No.10 and

accused No.11), represented by the learned counsel and

the respondent - NIA represented by the learned Special

Public Prosecutor are physically appearing before the

Court.

6. Heard the arguments from the learned Counsel

for the appellants (accused Nos.9 to 11) and the learned

Special Public Prosecutor for the respondent - NIA.

Perused the materials placed before this Court including

the impugned order passed by the Special Court.

7. In their memorandum of appeal, the appellants

have taken a contention that the allegations made against CRL.A No.1094 of 2023

them are baseless and lame. They are innocent and have

been falsely implicated in the matter. At the initial stage

of investigation conducted by the State Police, the

appellants' names were not figured out, however, the NIA

has created a false story and conducted subjective

investigation dragging the appellants. They have further

contended that the NIA has falsely alleged that the

appellant No.1 and appellant No.2 gave provocative

speeches at the funeral of the deceased Masood on the

date 22-07-2022 stating that they would take revenge for

the killing of Masood by killing prominent Hindu

community leaders through their Organisation. The

appellants (accused Nos. 9 to 11) contended that they are

State leaders of SDPI Party and have no connection

whatsoever with other Organisations.

It is further contended by the appellants that from

the narration of the charge sheet it appears that it was

revenge killing of one innocent Muslim boy, so the motive

of murder was very definite and clear. Thus, mere

invoking the provisions of the UAP Act for the alleged CRL.A No.1094 of 2023

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offences will not convert a criminal incident into a terror

incident.

The appellants further contended that the appellant

No.1 (accused No.9) and appellant No.2 (accused No.10)

attended the funeral of Masood on the date 22-07-2022 as

normal Muslims and accused No.9 addressed the

gathering, wherein, by grief, he stated that, the almighty

would take revenge of killing of innocent Masood who was

killed by communal forces, however, the NIA, without

apprehending the real culprits and the conspirators have

apprehended the appellants who are innocent and

attended the funeral and expressed their grief in pain.

It is also contended in their memorandum of appeal

by the appellants that, apart from the statement of

approver witnesses, the prosecution has also relied upon

the statements of the protected witness 'A'. From the

narration, it is evident that this witness is an accomplice

and partner-in-crime, such kind of witnesses can be

examined only under Sections 305 and 306 of the Cr.P.C.,

but not under Sections 161 and 164 of the Cr.P.C.

CRL.A No.1094 of 2023

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Submitting that they would abide by any reasonable

condition that may be imposed by this Court and offer

surety to the satisfaction of this Court, the appellants have

prayed for their enlargement on bail by allowing the

present appeal.

8. The respondent - NIA has filed its Statement of

Objections, denying the allegations made by the

appellants in their memorandum of appeal and contending

that it is after considering all the points canvassed by the

appellants even in the Special Court also, the said Court

has passed the impugned order and since a prima facie

true case is made out by the respondent- NIA, the Special

Court has rightly rejected the application for bail filed by

the appellants, as such, the impugned order does not

warrant any interference at the hands of this Court.

9. Learned counsel for the appellants (accused Nos.9

to 11) in his argument reiterated the summary of the

grounds raised by the appellants in their memorandum of

appeal. He further submitted that for denying the relief of

bail to an applicant/accused under Section 43D(5) of the CRL.A No.1094 of 2023

- 12 -

UAP Act, for the offences punishable under the provisions

of the said Act, a perusal of the case diary or the report

made under Section 173 of the Cr.P.C. is a must, which

lead the Court to an opinion that there are reasonable

grounds for believing that the accusation against the

applicant/accused is prima-facie true.

Learned counsel for the appellants further submitted

that the First Information Report (FIR) was filed against

three unknown accused only who were said to be the

residents of Sullia Taluk, however, the present applicants

were included/involved based upon the alleged voluntary

statement of an accused by name Mohammed Jabir but

the said Mohammed Jabir has stated before the Court that

he was tortured to give his alleged voluntary statement.

Thus, the very inclusion of the present appellants in the

case is without any basis and based upon forcible

extraction of voluntary statement by the co-accused

Mohammed Jabir.

CRL.A No.1094 of 2023

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In support of his arguments, the learned counsel

relied upon several judgments which would be referred to

at the appropriate places hereafterwards.

10. Learned Special Public Prosecutor for the

respondent - NIA in his argument submitted that, the

charge sheet clearly mentions the role of the present

appellants who are accused No.9, accused No.10 and

accused No.11, they being the members of a 'Service

Team' which in fact undertakes the work of identifying,

keeping a track and killing the identified Hindu people and

thus has shown the involvement of the present appellants.

The provocation committed by the present appellants has

been clearly narrated by the protected witnesses. It was

the accused No.10 and accused No.11 who are the two

among the present appellants (accused Nos.9 to 11) who

prepared the sketch with their own hand and prepared a

sketch for killing the deceased Praveen Nettaru. The

expert's opinion also shows that the sketch was prepared

by accused No.11 with his own handwriting.

CRL.A No.1094 of 2023

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Learned Special Public Prosecutor for the respondent

- NIA further submitted that the very act of the accused

Mohammed Jabir retracting from his previous statement

given under Section 164 of the Cr.P.C. before the learned

Magistrate shows that there is deep routed conspiracy in

the murder of Praveen Nettaru, in which, the present

appellants had played an active role.

Learned Special Public Prosecutor also submitted that

to carryout a terrorist act as defined under the provisions

of the UAP Act, it is not necessary that there must be a

notified terrorist Organisation, even a gang or an

association of persons can also carry out such terrorist

activities.

Learned Special Public Prosecutor further submitted

that, in the instant case, the present appellants have

hatched a conspiracy to kill the deceased Praveen Nettaru

and have advocated and abetted the commission of

murder of Praveen Nettaru and provoked the people to

revolt against a particular community and to eliminate CRL.A No.1094 of 2023

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prominent members therein and thus have threatened the

unity, integrity and security of the Nation.

Learned Special Public Prosecutor further submitted

that the blood stains found on the clothes, vehicles of the

accused and the weapons used by them in its DNA test

matches with the DNA of the deceased Praveen Nettaru.

Thus, a prima facie true case has been made out by the

prosecution, considering which, the bail application of the

appellants was rejected by the Special Court, as such, the

impugned order does not warrant any interference at the

hands of this Court.

The learned Special Public Prosecutor also relied

upon several of the judgments in support of his argument

which would be discussed at the appropriate places

hereafterwards.

11. After hearing the learned counsels for the

parties and after going through the entire material placed

before the Court, the points that arise for our

consideration in this appeal are:

CRL.A No.1094 of 2023

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[i] Whether the present appellants who are accused No.9, accused No.10 and accused No.11 in Special C.C.No.123/2023 for the alleged offences punishable under Sections 302, 153A, 120B and 212 read with Section 34 of the Indian Penal Code,1860, under Sections 16, 18, 18A, 19 and 20 of the UAP Act and under Section 25 (1A) of the Arms Act, 1959, on the file of the learned XLIX Additional City Civil and Sessions Judge (Special Court for trial of NIA cases) (CCH-50) at Bengaluru, have made out grounds to exercise the discretion under Section 439 of the Code of Criminal Procedure, 1973, in their favour and deserve their enlargement on bail?

[ii] Whether the order of the Special Court dated 29-04-2023 under appeal warrants any interference at the hands of this Court?

12. The charge sheet in the matter mentions that

during the investigation, it was revealed that the Popular

Front of India (PFI), a registered Society, though has in its

objective the promotion of national integration, communal

amity, social harmony, uphold democratic set up, etc.,

however, as an Organisation, it identifies gullible and

impressionable Muslim youths and recruits them to PFI

Organisations by showing them the videos of demolition of CRL.A No.1094 of 2023

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Babri Masjid, alleged atrocities against Muslims etc.

Campus Front of India (CFI), the student wing of PFI acts

as feeder Organisations. National Women's Front (NWF) is

the women's front of PFI. SDPI is the political Wing of PFI.

The said PFI has got teams called as 'Service Teams'. The

members of the Service Teams are provided with basic

and advanced training in Freedom Community Hall @

Mittur Community Hall of Idikidu village in Bantwal Taluk

of Dakshina Kannada District. During training, the

Service Team members are trained in assault using sticks,

rods, machetes, talwars and knives, etc. The Service

Team members are motivated by the speeches of leaders

of PFI, that Rashtriya Swayamsevaka Sangha (RSS) and

other Hindu Organisations are enemy No.1 of PFI and that

it is the duty of every member of the Service Team to

identify, list, and keep surveillance on RSS leaders and

other prominent Hindu community leaders.

The charge sheet further accuses that the PFI uses

its Service Team members as the Personal Security

Guards and Drivers to the leaders of SDPI, NWF, PFI and CRL.A No.1094 of 2023

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CFI Organisations of PFI. The Service Team members are

tasked to identify, list, recce and keep surveillance on RSS

members, members of other Hindu Organisations and

prominent Hindu community leaders in the locality. The

Service Team members are regularly tasked to store

weapons in Madarasas, Masjids, Schools and Houses. The

PFI, as an Organisation, with an intent to create a reign of

terror in the Country has been involved in the violent

terrorist activities, including murder of Hindu community

leaders in various States of the Country, thereby

endangering the security and public order of the Country.

The PFI members are found to have linkages with various

terror Organisations in other Countries. It has an agenda

to establish Islamic rule in India by the year 2047. It is

for this reason, the PFI and its Associates were declared

by the Central Government on the date 27-09-2022 as an

Unlawful Association under Section 3 of the UAP Act.

13. In the present case, based on the complaint of

one Sri. Madhu Kumar in FIR No.63/2022 for the offences

punishable under Section 302 read with Section 34 of the CRL.A No.1094 of 2023

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IPC and dated 27-07-2022, which came to be registered in

Bellare Police Station of Dakshina Kannada District of this

State, the inquest panchanama was conducted and post-

mortem examination of the dead body of Praveen Nettaru

was also conducted. The Doctor who conducted autopsy

noticed as many as thirty fresh injuries on the body of the

deceased, seven injuries were found to be by sharp-edged

weapons and three of them were fatal in nature. The

blood sample of the deceased was said to be found

collected for forensic analysis.

14. Based on the initial investigation, accused Zakiar

@ Zakir (accused No.18) and Mohammad Shafeek

(accused No.12) were arrested on the date 27-07-2022

and two Cell phones were seized in their personal search.

During the scene of offence panchanama drawn on the

date 28-07-2022, few more articles were shown to have

been collected from the spot including the blood stained

slippers of the deceased. It was found during

investigation that the deceased Praveen Nettaru was a

District Committee Member of the Bharatiya Janatha Party CRL.A No.1094 of 2023

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Yuva Morcha, Secretary of the Gejjageri Temple

Committee, District Committee Member of Yuva Vahini

(Youth Organisation of Billawa community). He was an

active Hindu community activist and was a prominent

Hindu community leader in Puttur and Sullia Taluks.

15. According to the charge sheet, the initial

investigation revealed through statement of the witnesses

was that, in order to create terror and fear among the

members of the Hindu community, Praveen Nettaru was

killed as he was prominent youth leader of Hindu

community. It is further mentioned in the charge sheet

that, one day prior to his murder, the deceased Praveen

Nettaru had called one Sri. Charan Raj and intimated him

about he (deceased) being observed by some strangers

coming near his Shop with Kerala State registration

vehicle and taking photos of his Shop in their mobile

phones. He also alleged that he was being followed by

those strangers in their vehicles. It is thereafter on the

date 01-08-2022, based on the revelations during the

investigation, Section 120B of the IPC and Sections 16 and CRL.A No.1094 of 2023

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18 of the UAP Act were invoked in the case. It is then the

Government of India, Ministry of Home Affairs, by its order

No.11011/68/2022/NIA dated 03-08-2022, directed the

National Investigation NIA (NIA) to take up the

investigation of the case as per the provisions of Section

6(4) read with Section 8 of NIA Act. Accordingly, the NIA

took up the further investigation in the matter.

16. After the NIA took up the further investigation in

the matter, few more accused were arrested by it.

According to respondent - NIA, one of the accused by

name Sri. Mohammed Jabir voluntarily stated before the

Special Court at Bengaluru that he is willing to record his

statement under Section 164 of the Cr.P.C. Accordingly,

his statement under Section 164 of the Cr.P.C. was

recorded on the date 22-11-2022 by the XVII Additional

Chief Metropolitan Magistrate, Bangalore City, on the

directions of the Special Court and in the presence of the

Advocate for the said accused Mohammed Jabir. In the

meantime, on the date 05-11-2022, searches were

conducted in five locations and accused No.9 - Ismail Shafi CRL.A No.1094 of 2023

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K. (appellant No.1) and accused No.10 - K. Mahammad

Iqbal @ Iqbal Bellare (appellant No.2) were arrested.

Both of them were taken into Police Custody for five days.

A drawing in the form of a sketch was seized from the

house of accused No.10 - Mahammad Iqbal, which sketch,

according to respondent - NIA, was the plan/sketch

prepared to target and kill Sri. Praveen Nettaru.

According to the prosecution, the Investigating Officer

further revealed that the said plan was discussed and

explained by Mahammad Iqbal (accused No.10) and

Mustafa Paichar (accused No.4) in the conspiracy meeting

held on the date 23-07-2022 in the house of accused

No.11 - Shaheed M. (appellant No.3 herein). In the said

conspiracy meeting, among others, all the present three

appellants also participated. According to the prosecution,

accused Mohammed Jabir, whose statement under Section

164 of the Cr.P.C. was recorded on the date 22-11-2022,

revealed several details about the conspiracy, the Service

Teams, their targets etc. He also revealed that in the

conspiracy meeting held on the date 23-07-2022, wherein, CRL.A No.1094 of 2023

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apart from the present appellants, he too had participated,

it was told by accused No.4 - Mustafa Paichar that, as per

the orders of the PFI State Committee, they had to avenge

the murder of Masood, as such, they need to kill a Hindu

leader for which they were required to identify five to six

Hindu community leaders. After the conspiracy meeting,

accused No.10 - Mahammad Iqbal @ Iqbal Bellare

(appellant No.2 herein) took the sketch along with him.

The said accused Mohammed Jabir revealed several other

vital information to the Investigating Agency. Based upon

the information revealed by him, the NIA intensified its

investigation, recorded the statements of several of the

witnesses, collected CCTV footages of Jumma Masjid,

Gandhi Nagar, Sullia, and new Kamadenu Traders,

Bellare. The CCTV footages of new Kamadenu Traders,

Bellare Village revealed assault on deceased Praveen

Nettaru and the presence of witnesses during assault on

him.

17. According to the prosecution, the analysis of

data extracted from the Cell phones of accused persons CRL.A No.1094 of 2023

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revealed that several of the accused including the present

appellants herein and accused Mohammed Jabir were all

members of PFI/SDPI Organisation. The contact lists

recovered from the Cell phones of accused persons

revealed that the accused persons are known to each

other as mobile numbers of other accused persons were

found saved in the mobiles of the other accused. The

social media extraction of the accused persons and PFI

Organisations have also revealed the association of the

accused persons with PFI organisation and SDPI party.

It is further the case of the prosecution that the

analysis of CDR and IPDR during investigation

corroborated the facts that among various other accused,

the present appellants i.e. accused No.9 and accused

No.10 and accused No.11 participated in the funeral of

Masood in Bellare village. These accused along with

accused Mohammed Jabir participated in the conspiracy

meeting held in the house of accused Shaheed M.

(accused No.11). The accused used to switch off their Cell CRL.A No.1094 of 2023

- 25 -

phones at their mutual meetings including the conspiracy

meetings.

With these, the prosecution alleges that the NIA has

ascertained the role of each of the accused among which

the role of the present three appellants, i.e. accused No.9,

accused No.10 and accused No.11 are as follows:

(i) Role of accused No.9 (appellant No.1 - Sri. Ismail

Shafeek K.)

Ismail Shafi (A-9) is one of the State Secretary of SDPI, Karnataka. He is also member of PFI organisation and conducts motivational classes to PFI Service Team members.

On 22.07.2022, early morning after the funeral of Masood, Ismail Shafi (A-9) along with Mahammad Iqbal (A-10) and accused Jabir Areyadka gave provocative speech that he will avenge death of Masood by killing prominent Hindu community leader through PFI organisation.

On 23.07.2022, he attends conspiracy meeting in the house of Shaheed (A-11), during this he along with Mustafa Paichar (A-4), Mahammad Iqbal (A-10), Shaheed (A-11), Shafeek (A-12) and accused Jabir Areyadka discusses and CRL.A No.1094 of 2023

- 26 -

supports the plan prepared by Mustafa Paichar (A-4) about killing of deceased Praveen Nettaru.

(ii) Role of accused No.10 (appellant No.2 -

Sri.K. Mahammad Iqbal @ Iqbal Bellare)

Mahammad Iqbal (A-10) is member of Bellare Grama Panchayath and president of SDPI party for Sullia Legislative Assembly constituency. He is also member of PFI organisation and conducts motivational classes to PFI members, participants in the protests, functions organised by PFI.

On 22.07.2022, early morning after the funeral of Masood, Mahammad Iqbal (A-10) along with Ismail Shafi (A-9) and accused Jabir Areyadka gave provocative speech that he will avenge death of Masood by killing prominent Hindu community leader through PFI organisation.

On 23.07.2022, he attended the conspiracy meeting in the house of Shaheed (A-11), during this he along with Mustafa Paichar (A-4) explains the sketch to co-conspirators about the plan prepared to kill of deceased Praveen Nettaru. This conspiracy meeting is attended by Mahammad Iqbal (A-10) Ismail Shafi (A-9), Shaheed (A-11), Shafeek (A-12) and accused Jabir Areyadka. After the conspiracy meeting, he took the said sketch.

CRL.A No.1094 of 2023

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(iii) Role of accused No.11 (appellant No.3 -

Sri. Shaheed M.)

He is member of PFI organisation in Bellare Village. Shaheed (A-11) along with Mustafa Paichar (A-4) prepared the sketch on plan to kill deceased Praveen Nettaru. Further, on 23.07.2022, conspiracy meeting was held in his house in which accused persons Mustafa Paichar (A-4), Ismail Shafi (A-9), Mahammad Iqbal (A-10), accused Jabir Areyadka and Shafeek (A-12) had attended the meeting. During this conspiracy meeting, discussion was done about plan to kill deceased Praveen based on the sketch prepared by Shaheed (A-11).

It is keeping the above summary of the case of the

prosecution, more particularly, the alleged role of the

present appellants (i.e. accused No.9, accused No.10 and

accused No.11) in the alleged crime, the application of the

appellants for bail which has led to the filing of the

present appeal under consideration is required to be

analysed.

CRL.A No.1094 of 2023

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18. The first point of argument of the learned

counsel for the appellants (accused Nos. 9 to 11) was

that, unless a perusal of the case diary or the report made

under Section 173 of the Cr.P.C. leads the Court to opine

that there are reasonable grounds for believing that the

accusations against the accused person are prima facie

true, the bail cannot be refused to them.

(a) In that regard, how to ascertain 'prima facie

true' in the case of the prosecution, the learned counsel

for the appellants as well the learned Special Public

Prosecutor for the respondent - NIA relied upon a

judgment of the Hon'ble Apex Court in the case of

NATIONAL INVESTIGATION AGENCY Vs. ZAHOOR AHMAD

SHAH WATALI reported in (2019) 5 Supreme Court Cases

1, wherein the Hon'ble Apex Court had an occasion to

discuss the proviso to Section 43D(5) of the UAP Act. In

that regard, it has made a detailed observation about how

the said proviso is required to be read and understood.

The relevant portions of the judgment that were brought

to the notice of this Court by both side read as below:

CRL.A No.1094 of 2023

- 29 -

"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the Investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other CRL.A No.1094 of 2023

- 30 -

evidence, and on the face of it shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing Sharma V.State of Maharashtra (2005) 5 SCC 294] wherein a three- Judge Bench of this court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus: (SCC pp.316-17)

"36. Does this statute require that before a person is released on bail, the Court, albeit prima facie, must come to the conclusion that he is not guilty of such CRL.A No.1094 of 2023

- 31 -

offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to meet an offence under the Act and not any offence whatsoever be it a minor or major offence.... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly.

CRL.A No.1094 of 2023

- 32 -

The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea."

              44.    xxx     xxx      xxx    xxx   xxx
              45.    xxx     xxx      xxx    xxx   xxx

              46.   The duty of the court at this
      stage    is   not     to   weigh       the   evidence

meticulously but to arrive at a finding on the basis of broad probabilities......"

24. A priori, the exercise to be undertaken by the court at this stage - of giving reasons for grant or non-grant of bail - is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise

25. ...........That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 CrPC) and other material CRL.A No.1094 of 2023

- 33 -

gathered by the investigating agency during investigation.

26. Be it noted that the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the investigating agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is CRL.A No.1094 of 2023

- 34 -

required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.

27. For that, the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analyzing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is."

The principle laid down as above would be borne in

mind, while considering the relief sought for under the

present appeal.

19. The learned counsel for the appellants (accused

Nos.9 to 11) also relied upon a judgment of the Hon'ble

Apex Court in the case of SEENI NAINAR MOHAMMED Vs.

STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE CRL.A No.1094 of 2023

- 35 -

reported in Docid#IndLawLib/1164529 and drew our

attention to paragraph 15 of the said judgment and

attempted to draw an anology between the Terrorist and

Disruptive Activities (Prevention) Act, 1987 (hereinafter

for brevity referred to as "the TADA Act, 1987") with UAP

Act and submitted that the intention to cause terror in the

minds of the people is also very much required under the

present Act.

No doubt, in the said case, the Hon'ble Apex Court

had an occasion to explain as to what 'terrorism' means

and the applicability of TADA, however, thereafter in

paragraph 19 of the same judgment, it was pleased to

hold that the cases relied upon before it do not help the

respondent therein to make a case under the provisions of

the TADA in the absence of intention to cause terror in the

minds of the people or strike on them with terror.

20. In the instant case, suffice it to say that since

the UAP Act is a special enactment and is exhaustive in

itself, the essence of the offences alleged under the

relevant Section is required to be borne in mind before CRL.A No.1094 of 2023

- 36 -

coming to a view that the accusations against the accused

are 'prima facie true'.

21. The learned counsel for the appellants (accused

Nos. 9 to 11) also relied upon a judgment of the Hon'ble

Apex Court in the case of THWAHA FASAL Vs. UNION OF

INDIA reported in Docid#IndLawLib/1600665, wherein,

in a matter falling under the UAP Act, the Hon'ble Apex

Court was pleased to observe in paragraph 23 of its

judgment that, the restrictions imposed by sub-section (5)

of Section 43D per se do not prevent a Constitutional

Court from granting bail on the ground of violation of part

III of the Constitution.

The above principle also would be borne in mind

while analysing the present case.

22. The learned counsel for the appellants (accused

Nos.9 to 11) submitting that every alleged recovery at the

instance of the accused cannot be accepted as a recovery

under Section 27 of the Evidence Act, relied upon a CRL.A No.1094 of 2023

- 37 -

judgment of the Hon'ble Apex Court in the case of

Subramanya Vs. State of Karnataka reported in 2022 SCC

OnLine SC 1400 and submitted that, there is a

requirement of two independent witnesses to be present

while hearing/recording the statement said to have been

made by the accused and drawing a recovery

panchanama.

The Hon'ble Apex Court in paragraph 84 of its

judgment in the said case was pleased to observe as

below:

"84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the CRL.A No.1094 of 2023

- 38 -

accused while in custody makes such statement before the two independent witnesses (panch- witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law......"

However, it cannot be ignored that the Hon'ble Apex

Court in the very same judgment, in paragraph 85 of its

judgment, was also, after relying upon its another

previous judgment reported in Murli V.State of Rajasthan

[(2009) 9 SCC 417] pleased to observe that the contents

of the panchanama are not the substantive evidence. The

law is settled on that issue. What is substantive evidence

is what has been stated by the panchas or the person

concerned in the witness box.

The principle laid down in the above judgment would

also be borne in mind while analysing the present case.

23. Learned Special Public Prosecutor for the

respondent - NIA in his argument also relied upon a

judgment of a co-ordinate Division Bench of this Court in CRL.A No.1094 of 2023

- 39 -

the    case     of    IMRAN       AHMED           Vs.      NATIONAL

INVESTIGATING          AGENCY          in       Criminal     Appeal

No.124/2023 dated 29-05-2023 wherein, with regard to

what the Court may lose sight of in treating bail petitions

when the offences arise under the NIA Act, the Court was

pleased to observe in page 26 of its judgment as follows:

"(a) Learned SPP is right in telling the court that in bail matters, what the court has to bear in mind is not only the rights & liberties of the accused but also the threat to safety of the civil society, should offenders of the kind be released from confinement. Women & children have to walk on the street; they have to go to milk booths & markets; parents need to take their children to the schools and fetch them back; people have to go to work places; tillers have to till the land and labourers to sweat in the soil. All this may be jeopardized, if accused against whom charge sheet has been filed by the Spl. Investigating Agencies for grave offences, are let out. The argument of possible threat to the witnesses cannot be casually discounted. This apart, there are protected witnesses too, who are waiting to depose in the criminal prosecution; it is the duty of the court to ensure their safety, as well."

CRL.A No.1094 of 2023

- 40 -

24. It is keeping the observations made in the above

judgments relied upon from both side, the case on hand is

required to be proceeded further in its analysis.

25. The learned counsel for the appellants (accused

Nos. 9 to 11) contended that the FIR was filed only against

three unknown accused who were residents of Sullia

Taluk, however, the present appellants were

involved/included based upon the alleged voluntary

statement of the accused by name Mohammed Jabir. But

the said Jabir on the date 07-02-2023 has stated before

the Court that he was tortured to give his statement, as

such, the inclusion of the present appellants is proved to

be on the harassment of the Investigating Agency upon

the said Mohammed Jabir. However, the said Mohammed

Jabir retracted his statement later on and has now been

arraigned as an accused, as such, his statements cannot

be accepted. He therefore submitted that, the documents

produced by the NIA are all fabricated, only with an

intention to implicate the present appellants falsely in the

case.

CRL.A No.1094 of 2023

- 41 -

26. A perusal of the materials placed before this

Court would go to show that, Mohammed Jabir, who was

later included as accused No.21 in the case was arrested

and produced before the Special Court along with his

medical examination records. Upon the request made by

the respondent - NIA, he was remanded to the Police

Custody. Upon completion of the period of Police Custody,

he was produced before the Special Court along with his

medical examination records. Neither the medical records

nor the said accused (Mohammed Jabir) when produced

before the Special Court complained anything about any

alleged ill-treatment at the hands of the NIA Police. After

remanding to Judicial Custody, he was produced before

the Honb'le Court, at the relevant point of time, seeking

further remand and extension of Judicial Custody. On

none of those dates of his production before the Court,

Mohammed Jabir has complained any alleged ill-treatment

or torture upon him by the Police or the NIA. It appears

from the records that Mohammed Jabir was also facilitated

to contact his family members, however, no complaint by CRL.A No.1094 of 2023

- 42 -

family members about the alleged ill-treatment to

Mohammed Jabir was placed before the Court. According

to the respondent- NIA, it was the said Mohammed Jabir

himself who volunteered to give his statement before the

learned Magistrate. Accordingly, he was produced before

the learned Magistrate.

27. The materials placed before this Court would

also show that Mohammed Jabir was explained about the

legal implications of his statement which he was intending

to give under Section 164 of the Cr.P.C. before the

Magistrate. He was given a reasonable time to reconsider

his decision to give his statement. It is only thereafter, on

the next day, the Magistrate proceeded to record his

statement. The copy of his statement under Section 164

of the Cr.P.C. which is placed before this Court by the

appellants would go to show that, he has called himself as

the District President of PFI, Puttur, in the year 2020. The

said PFI, apart from having several divisions, areas and

units also has a Wing called 'Service Team'. The said

Service Team selects healthy and fit youths and train CRL.A No.1094 of 2023

- 43 -

them as per the training Book No.1, Book No.2 and Book

No.3. The youths would be shown the videos of Gujarat

riots, Babari Masjid. Those trained members would work

as Body Guards of PFI and SDPI leaders and work

voluntarily for the PFI Organisation.

The Charge Sheet has also shown that Mohammed

Jabir has further stated in his Section 164 Cr.P.C.

statement before the learned Magistrate that, on the date

23-07-2022, he, joined by the present appellants, i.e.

accused No.9, accused No.10 and accused No.11 and few

others held a meeting, wherein, as per the direction of the

State Unit/Organisation, as a revenge for the killing of one

Sri. Masood, these people had to kill a person in which

regard, about five to six leaders among Hindu community

had to be identified. In that meeting, accused No.10 took

a sketch which was in possession of accused Mustafa

Paichar (accused No.4). On the date 26-07-2022, the said

Mustafa Paichar calling him (Mohammed Jabir) over the

Cell phone, stated to him that he need not have to worry

and that they have executed their work.

CRL.A No.1094 of 2023

- 44 -

The said Section 164 Cr.P.C. statement recorded by

the Magistrate also certified that accused Mohammed Jabir

was told before he proceeded to give his statement that,

he was not bound to give his confession statement and

that in case if he gives his statement, any of the

confessions made therein may be used against him as an

evidence. Despite the same, Mohammed Jabir proceeded

to give his confession statement which was voluntary.

The learned Magistrate has also certified that the

statement given by Mohammed Jabir was read over to him

and he has admitted the same as true. The statement as

given by him in its entirety was recorded. It goes to show

that the Magistrate was fully convinced that there was no

coercion, force or undue influence or duress upon

Mohammed Jabir to give any such statement. It is only

after understanding what he is telling and the

consequences of the same, Mohammed Jabir has given his

voluntary statement. Even though the said confession

given by Mohammed Jabir is said to have been retracted

by him at a later date, however, the said retracted CRL.A No.1094 of 2023

- 45 -

confession cannot be totally expunged from the records,

but it cannot be made solely the basis of conviction unless

the same is corroborated.

28. In a judgment relied upon by the learned Special

Public Prosecutor for the respondent - NIA in the case of

SUBRAMANIA GOUNDAN Vs. STATE OF MADRAS reported

in 1958 SCR 428, the Hon'ble Apex Court, in paragraph 14

of its judgment was pleased to observe as below:

"14. ....The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being Kesava Pillai alias Koralan and Kesava Pillai alias Thillai Kannu Pillai [I.L.R.53 Mad 160] that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may CRL.A No.1094 of 2023

- 46 -

be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated....."

29. Therefore, it is too early to say that since

Mohammed Jabir is said to have retracted from his

statement given under Section 164 of the Cr.P.C. and has

now been arraigned as one of the accused in the case, his

said statement cannot be looked into at all. The said

aspect of whether the said statement under Section 164 of

the Cr.P.C. can be looked into and considered and if so, to

what extent, would all require a detailed consideration

during the course of full-fledged trial.

30. Apart from the said confession statement of

Mohammed Jabir, the prosecution has relied upon various

other materials and evidences claiming that the same

would show the active involvement of the present

appellants in the commission of the crime. As such, the CRL.A No.1094 of 2023

- 47 -

argument of the learned counsel for the appellants that in

view of the accused Mohammed Jabir retracting from his

statement under Section 164 of the Cr.P.C., based upon

which the present appellants have been implicated in the

matter, the appellants stands proved to be innocent in the

matter and that they have been falsely implicated in the

matter, cannot be accepted.

31. The learned counsel for the appellants

contended that, unless Mohammed Jabir, who was alleged

to be an accomplice in the matter was granted pardon

under Section 306 of the Cr.P.C., his alleged statement

under Section 164 of the Cr.P.C. is of no consequence. In

his support, he relied upon a judgment of the Hon'ble

Apex Court in the case of CHANDRAN @ MANICHAN @

MANIYAN Vs. STATE OF KERALA and connected matters

reported in Docid#IndLawLib/261151 and drew the

attention of this Court to paragraph 42 of the said

judgment.

CRL.A No.1094 of 2023

- 48 -

In the said case, the appellants had challenged the

confirmation of their conviction made by the Kerala High

Court for the offences punishable under Section 57A(1)(ii)

under the Abkari Act (State Act for the State of Kerala)

along with convictions under Sections 324, 326, 328 and

201 of the IPC as also the other Sections like Section

55(h) and (i) and 58 of the Abkari Act.

One of the point of argument addressed to the

Hon'ble Apex Court for the appellants in the said case was

that, the evidence of PW-53 therein could not be taken

into consideration and it would be inadmissible, because,

that witness, though was an accomplice, he was neither

granted pardon under Section 306 of the Cr.P.C. nor was

he prosecuted and the prosecution unfairly presented him

as a witness for the prosecution.

In the same judgment, the Hon'ble Apex Court, after

relying upon its previous judgment in the case of

Laxmipat Choraria and others Vs. State of Maharashtra

reported in AIR 1968 SC 938 and its various other

judgments observed as below:

CRL.A No.1094 of 2023

- 49 -

"This case would bring about the legal position that even if the prosecution did not prosecute PW-53 and used his evidence only as an accomplice, it was perfectly legal. The evidence of such witness subject to the usual caution was admissible evidence. The contention of Shri. Radha Krishnnan that his evidence would be inadmissible because he was not granted pardon or he was not made accused would, thus, be of no consequence and is rejected. In this backdrop, after considering the whole material and the findings of the Trial Court and the appellate Court, we have no hesitation to hold that the Trial Court and the appellate Court were right in convicting A-7."

32. The learned counsels from both side, on the

same aspect, relied upon another judgment of the Hon'ble

Apex Court in the case of GIRISH SHARMA AND OTHERS

Vs. STATE OF CHHATTISGARH AND OTHERS reported in

(2018) 15 Supreme Court Cases 192.

In the aforesaid case also, the question before their

Lordships was, whether the prosecution was entitled to

cite the accused as a witness even without recourse to

Section 306 of the Cr.P.C.? But, Sections 161, 164, 193, CRL.A No.1094 of 2023

- 50 -

306 and 319 of the Cr.P.C. were considered by the Hon'ble

Apex Court referring to Chandran's case (supra). It was

submitted before the Hon'ble Apex Court that the

procedure under Section 306 of the Cr.P.C. to seek pardon

is not the only course available to rely upon the evidence

of an accomplice by citing him as a witness instead of

arraigning him as an accused.

After considering the matter in detail, the Hon'ble

Apex Court in paragraph 6 of its judgment was pleased to

observe as below:

"6. The submission made on behalf of the appellants that the prosecution was entitled to cite the three original accused as witnesses, in the given fact situation, having regard to larger interest of justice to strengthen the prosecution case against more serious accused cannot be held to be without substance. This could be done even without recourse to Section 306 CrPC. It is certainly open to the court to finally decide whether cognizance ought to be taken or not after balancing all the relevant considerations. The decision of the Prosecutor to cite them as witnesses does not bind CRL.A No.1094 of 2023

- 51 -

the court and such decision can be interfered with if interest of justice so requires."

33. In the instant case also, citing the protected

witnesses as charge sheet witnesses and examining them

as the prosecution witnesses, no doubt, does not bind the

Court and can be interfered with, provided, the interest of

justice so requires. It is certainly open to the Court to

finally decide whether cognizance ought to be taken

against such persons, after balancing all the relevant

considerations including the decision of the Prosecutor

whether or not to cite them as the witnesses rather than

as accused would strengthen the prosecution case as

against more serious accused.

34. Learned counsel for the appellants also

contended that there is no recording of the statement of

the eye witnesses/protected witnesses, as such, their

evidence cannot be believed. In his support, he relied

upon a judgment of the Hon'ble Apex Court in the case of

HARBEER SINGH Vs. SHEESHPAL reported in CRL.A No.1094 of 2023

- 52 -

Docid#IndLawLib/1035427, wherein in paragraph 17 of

its judgment, after relying upon its previous judgment in

the case of Ganesh Bhavan Patel Vs. State of

Maharashtra [(1978) 4 SCC 371], the Hon'ble Apex Court

observed that the said case is an authority for the

proposition that delay in recording of statements of the

prosecution witnesses under Section 161 of the Cr.P.C.,

although those witnesses were or could be available for

examination when the Investigating Officer visited the

scene of occurrence or soon thereafter, would cast a doubt

upon the prosecution case.

35. The learned Special Public Prosecutor for the

respondent - NIA, stating that, in the instant case, there is

no delay in recording the statement of the witnesses after

the matter was entrusted to the NIA, has relied upon a

judgment of the Hon'ble Apex Court in the case of Goutam

Joardar Vs. State of West Bengal and connected matters

reported in 2021 SCC OnLine SC 910.

CRL.A No.1094 of 2023

- 53 -

In the said case, with respect to the alleged delay in

recording the statement of the alleged eye witnesses, the

Hon'ble Apex Court was pleased to observe that, the

factum of delay by itself would not result in rejection of

their testimonies. In the said case, it was observed that

the material on record definitely established the fear

created by the accused. If the witnesses felt terrorised and

frightened and did not come forward for some time, the

delay in recording their statements stood adequately

explained.

36. In the instant case, though the incident took

place on the night of the date 26-07-2022 and an FIR was

made on the date 27-07-2022 and the investigation was

commenced by the Karnataka State Police, however, the

order by the Ministry of Home Affairs, Government of

India, entrusting the matter to the NIA was passed only on

the date 03-08-2022. The NIA took up the investigation by

re-registering the crime on the date 04-08-2022. The

statement of some of the witnesses are said to have been

recorded on the 8th and 9th of August 2022. Thus, it CRL.A No.1094 of 2023

- 54 -

cannot be taken that there is an inordinate delay of two

months in recording the statement of the witnesses. Still,

assuming that there is some delay in recording the

statement of some of the witnesses, it cannot be ignored

that according to the prosecution, initially no witnesses

were coming forward to give their statement because they

were terrorised. It took some time for the Investigating

Agency to gather the CCTV footages of the locality,

identifying the witnesses and securing them the protection

and then to record their statements. Therefore, the

contention of the learned counsel for the appellants on this

point is also not acceptable.

37. The learned counsel for the appellants (accused

Nos.9 to 11) in his argument submitted that, the

statement of two witnesses by name Sri. Rakesh Rai and

Sri. Padmanabha Shetty recorded by the State Police in

their total number of pages does not tally when compared

to the index of pages submitted to the NIA. The total

number of pages in the index does not tally with the total CRL.A No.1094 of 2023

- 55 -

number of pages in the actual statement. This establishes

that NIA has fabricated things and created the statements.

38. The said argument of the learned counsel for the

appellants (accused Nos.9 to 11) is not convincing and

acceptable for the reason that, the statement of those two

witnesses appears to be containing two pages each. If at

all any such discrepancy as alleged is there, then, it is a

matter to be properly agitated by the aggrieved party

during the trial, in a manner know to law and for the

Special Court to consider the same in a full-fledged trial,

provided such a contention has been taken by the accused

before it, at the appropriate stage, in the trial. As such,

the said argument of the learned counsel for the

appellants is also not convincing.

39. On the other hand, when the materials placed

before this Court is perused carefully, it goes to show that,

the offences alleged against the present appellants are not

only under the Indian Penal Code alone, but also under the

UAP Act and under the Arms Act. The offences alleged CRL.A No.1094 of 2023

- 56 -

under the UAP Act are Sections 16, 18, 18A, 19 and 20.

The materials placed before the Court in the form of

statement of the witnesses and the copies of the

documents prima facie shows that each of the appellants

is shown to have played a definite, active and significant

role in the commission of the alleged crime. The role

alleged to have been played by each of the accused Nos.9

to 11 has already been observed above. The protected

witnesses 'G', 'H', 'I', and 'L' are shown to have given a

detailed picture of the participation and involvement of the

present appellants in the commission of the crime. The

appellants are alleged to have attended the funeral of

Masood at Bellare and after the funeral, the appellants

(accused No.9 and accused No.10) are alleged to have

given provocative speeches that they would retaliate

through PFI and takeaway the life of Hindu prominent

leaders, which provocative speeches were alleged to have

made the accused to conduct a recce (surveillance of the

spot) before execution of their alleged plan. On the date

23-07-2022, in the evening, the appellants, joined by CRL.A No.1094 of 2023

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accused No.4, who was the head of the Service Team of

Puttur along with others are said to have held a conspiracy

meeting in the house of appellant No.3 (accused No.11) at

Bellare. It is also alleged that in the said conspiracy

meeting, the accused, including the appellants discussed

about a sketch already prepared in connection with a plan

to attack Sri. Praveen Nettaru. The appellant No.3

(accused No.11) is alleged to have prepared the sketch in

his own handwriting. According to prosecution his hand

writing on the sketch was confirmed by the expert's

opinion. The appellant No.2 (accused No.10) is alleged to

have explained the plan to the group in the conspiracy

meeting. The said sketch containing the plan for attack on

the deceased Praveen Nettaru is alleged to have been

recovered from the residence of appellant No.2 (accused

No.10). The sketch which is part of the charge sheet

prepared, when studied with the statements of the

witnesses and the description of the abbreviations used

therein would go to show that, the positions to be taken

by each of the accused including accused No.10 and CRL.A No.1094 of 2023

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accused No.11 and the mode of executing their plan in

attacking and eliminating Praveen Nettaru appears to have

been depicted in it. Though among the two sketches

finding place in the charge sheet papers, a slight variation

appears to be found, however, the contention of the

prosecution that the second sketch is with respect to the

post execution of the plan showing how it was executed,

cannot be ignored at this stage and the same may have to

be ascertained in a full-fledged trial.

40. It is not the case of the appellants (accused Nos.

9 to 11) that the accused had any previous enmity against

the deceased Praveen Nettaru. However, the said Praveen

Nettaru was recognised in the locality as an active Pro

Hindu activist. Therefore, the contention of the prosecution

that, in retaliation to the alleged killing of one Masood on

the date 19-07-2022 in Kalanje village, about eight

Kilometers away from Bellare village, the accused had

hatched a conspiracy, including the present appellants,

cannot be ignored.

CRL.A No.1094 of 2023

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41. Even though the present appellants are not

shown to have been physically present and attacked

Praveen Nettaru and inflicted injuries upon him, as

observed by the Hon'ble Apex Court in its judgment in the

case of K. HASHIM Vs. STATE OF T.N. reported in (2005)

1 Supreme Court Cases 237, which judgment was relied

upon by the learned Special Public Prosecutor in his

argument to argue that unless the statute so requires, no

overt act need be done in furtherance of the conspiracy,

and that the object of the combination need not be

accomplished in order to constitute an indictable offence.

42. No doubt, in order to constitute a conspiracy,

meeting of minds of two or more persons to do an illegal

act or an act by illegal means is a must. However, as held

by our Hon'ble Apex Court in the case of BILAL HAJAR

ALIAS ABDUL HAMEED Vs. STATE REPRESENTED BY

INSPECTOR OF POLICE reported in (2019) 17 Supreme

Court Cases 451 and relied upon by the learned Special

Public Prosecutor, it is not necessary that all the

conspirators must know each and every detail of the CRL.A No.1094 of 2023

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conspiracy which is being hatched and nor is it necessary

to prove their active part/role in such meeting. In other

words, their presence and participation in such meeting

alone is sufficient.

43. In the instant case, as noticed above, all the

present appellants are said to have attended the

conspiracy meeting in the house of the present appellant

No.3 (accused No.11) of Bellare village and discussed the

plan of killing Praveen Nettaru, in which regard, a sketch

was also prepared showing which positions, the accused

had to take in execution of their plan and how to execute

the same.

44. As observed by a Co-ordinate Division Bench of

this Court in its judgment dated 26-06-2023 in the case of

Sri. Faraz Pasha Vs. State by National Investigation

Agency, Bengaluru in Criminal Appeal No.90/2023, while

referring to paragraph 23 of the judgment of the Hon'ble

Apex Court in Zahoor Ahmad Shah Watali's case (supra),

observed that, whenever the Court has to arrive at a CRL.A No.1094 of 2023

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satisfaction that the accusations against an accused

appear to be prima facie true, the degree of satisfaction is

lighter than the degree of satisfaction to be recorded for

considering an application for discharge of an accused or

framing charges.

Thus, if the materials placed before the Court are

sufficient enough to form an opinion that they cannot be

out-rightly rejected as complicity of the accused in the

commission of the crime apparently appears, the Court

can record a satisfaction that the accusations are prima

facie true.

45. In the case on hand, the appellant No.1

(accused No.9) and appellant No.2 (accused No.10) after

participating in the funeral of Masood gave provocative

speeches that they will avenge the killing of Masood by

killing a prominent Hindu community leader through PFI

Organisation is shown to have been corroborated by the

statements of protected witnesses 'G', 'H, 'I' and 'L'.

Further, the Investigating Officer is also said to have

collected several call details between the mobile phones of CRL.A No.1094 of 2023

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the appellants regarding the conspiracy and their

participation and involvement in the commission of the

crime. The alleged provocative speeches of the

determination of the accused and their Organisation to

eliminate prominent Hindu leaders at random in retaliation

of killing of one Sri. Masood could only be with an intent to

threaten and strike terror in one particular section of the

people in India. As such, it would be a terrorist act under

Section 15 of the UAP Act. It is not necessary that such

a terrorist act has to be committed only by a terrorist

Organisation, only by a terrorist association or a terrorist

gang as defined under Section 2 (i) and 2(m) of the UAP

Act. Section 15 of the UAP Act since uses the word

"whoever" it refers to "any person" committing the act

mentioned in the said Section. The conspiracy in which

the participation of the present appellants is prima facie

found to be true, is an act of advocating, abetting and

facilitating the commission of a terrorist act and an act

preparatory to the commission of a terrorist act which is

punishable under Section 18 of the UAP Act.

CRL.A No.1094 of 2023

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46. Thus it can be held that there exists sufficient

incriminating evidence against the present appellants

(accused No.9, accused No.10 and accused No.11) to

show their active involvement in the alleged crime. The

materials placed by the prosecution, at this stage, leads us

to an opinion that there are reasonable grounds for

believing that the accusations against the present

appellants (accused Nos. 9 to 11) are prima facie true.

47. It is since considering the materials placed

before it in its proper perspective, the Special Court has

passed the impugned order, rejecting the bail application

filed by the present appellants under Section 439 of the

Cr.P.C., we do not find any reason to interfere in the said

order.

As such, we proceed to pass the following:

ORDER

The present Criminal Appeal stands

dismissed as devoid of merits.

CRL.A No.1094 of 2023

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Registry to transmit a copy of this judgment to the

Court of the learned XLIX Additional City Civil and

Sessions Judge (Special Court for Trial of NIA Cases)

(CCH-50) at Bengaluru, immediately, for its information.

Sd/-

JUDGE

Sd/-

JUDGE

BMV*