Karnataka High Court
Mr. Edapana Thodika vs State Of Karnataka on 6 November, 2024
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CRL.A No.1110/2024
AND CONNECTED MATTERS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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))
BETWEEN:
1. 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
Digitally
signed by K S THIRUANGADI TALUK
RENUKAMBA MALAPPURAM DISTRICT
Location: KERALA 673 575
High Court of
Karnataka
2. 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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3. 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
4. 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
5. 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
6. 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
7. 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
8. MR. SAMEER @ MOHAMMAD SAMEER
S/O LATE RAHAMATULLA
AGED ABOUT 42 YEARS
R/AT FAJANEST, MAZAPADAM
THANA, KANNUR, KERALA 673 575
9. MR. SARFUDDIN @ SHARFUDDIN
S/O ABDUL RAHEMAN
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AGED ABOUT 49 YEARS
R/AT K.K. RAHIMAS HOUSE
EDAKKADU PANCHAYATHI
KADALAYI POST, KURUVA
KANNUR 670 001
10. 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
11. MR. ABDUL KHADAR
S/O ABDULLA
AGED ABOUT 57 YEARS
R/AT NO.78, NIRMALAGIRI
HEGGALA VILLAGE AND POST
VEERAJAPETE, KODAGU DSITRICT
12. 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)
(BY SRI S. BALAKRISHNAN, ADVOCATE;
APPEAL AGAINST APPELLANT NO.6 WITHDRAWN IN
CRL.A.NO.1152/2024 VIDE ORDER DATED 21.09.2024)
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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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.
THESE CRIMINAL APPEALS, COMING ON FOR FURTHER
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)
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
City Civil and Sessions Judge, [Special Court for trial of NIA
Cases], Bengaluru, have preferred the above appeals.
2. The facts of the case are as follows:
On 25.07.2008 in nine (09) places in Bengaluru, series of
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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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:
(1) Sections 120B, 121, 121A, 302, 307, 201, 326,
435 of IPC.
(2) Sections 3, 4, 5 & 6 of The Explosive
Substances Act, 1908.
(3) Sections 3, 10, 11, 13, 16, 17, 18, 19 & 20 of
The Unlawful Activities (Prevention), Act, 1967
(for short, 'UAP Act').
(4) Sections 3 & 4 of Prevention of Damage to
Public Property Act, 1984.
3. The appellants filed successive bail petitions in the
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:
(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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(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.
(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.
4. 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:
i. Sheikh Javed Iqbal vs. State of Uttar Pradesh
reported in (2024) 8 SCC 293
ii. Union of India vs. K.A.Najeeb reported in
(2021) 3 SCC 713
iii. Javed Gulam Nabi Shaikh vs. State of
Maharashtra and another reported in 2024
SCC OnLine SC 1693
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iv. Manish Sisiodia vs. Directorate of
Enforcement 2024 SCC OnLine 1920
v. Mohd.Muslim alias Hussain vs. State (NCT of
Delhi) 2023 SCC OnLine 352
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
vii. Sri.Mohan Nayak N vs. State of Karnataka in
Crl.P.No.7963/2023 Disposed of on
07.12.2023.
5. 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
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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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.
Analysis
6. 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:
Sl. Case No. Accused Disposal date
No. No.
7. 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.
8. 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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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
different dates as follows:
Sl. Date Application
No.
1 09.07.2024 Application under Section 91 read
with Section 243 of Cr.P.C. to
summon document from
Somwarpet Police Station.
2 16.07.2024 Application under Section 311 of
Cr.P.C. to recall PW-138 for cross-
examination and DW-3 for
production of GST bill.
3 30.08.2024 Application under Section 311 of
Cr.P.C. to recall DW-3 for
production of VAT certificate.
9. Learned SPP-II produced for perusal of this Court
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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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.
10. 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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facts of the case or they do not advance the case of the
appellants/accused.
11. 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.
12. 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:
ORDER
The appeals are dismissed.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
BSR
