Kerala High Court
Nashidul Hamsafar vs Union Of India on 4 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
CRL.A NO. 402 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRMP 22/2021 OF SPECIAL COURT
FOR TRIAL OF NIA CASES,ERNAKULAM, ERNAKULAM
APPELLANT:
NASHIDUL HAMSAFAR, AGED 26 YEARS,
S/O. ABDUL NAZAR, KARIKKADANPOIL, MUNDERI P.O
KALPETTA, WAYANAD DISTRICT
BY ADVS.
SRI. S.RAJEEV
S
SRI. K.K.DHEERENDRAKRISHNAN
SRI. V.VINAY
SRI. M.S.ANEER
RESPONDENT:
UNION OF INDIA
REP.BY NATIONAL INVESTIGATING AGENCY
KOCHI REP.BY STANDING COUNSEL,
NATIONAL INVESTIGATING AGENCY, HIGH COURT OF KERALA
ERNAKULAM 682 031 [RC NO.02/2016/NIA/KOC]
OTHER PRESENT:
SRI.ARJUN AMBALAPATTA, SENIOR GP FOR NIA CASES
THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 02.08.2021,
THE COURT ON THE 04.08.2021 DELIVERED THE FOLLOWING:
Crl.A.No.402 of 2021 - 2 -
K. Vinod Chandran & Ziyad Rahman A.A., JJ.
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Crl.A.No.402 of 2021
---------------------------------------------
Dated, this the 04th August 2021
JUDGMENT
Vinod Chandran, J.
The appellant is the 16th accused in S.C No.
1/19/NIA pending before the Special Court for Trial of NIA
Cases, Ernakulam. The appeal is against the dismissal of a
bail application in which the grounds raised were (i) the
injuries suffered by the appellant in an earlier accident
which requires Ayurvedic treatment,(ii) the medical
complaints of his aged parents, (iii) the fact of the
applicant having been continued in judicial custody for
two and half years, (iv) trial having not yet commenced,
(v) the further delay that would again ensue in the
commencement and completion of trial and (vi) the factum
of A17 who was arrested along with the appellant having
been released from custody.
2. We have heard Sri.S.Rajeev, learned Counsel
for the appellant and Sri Arjun Ambalapatta, Senior Public
Prosecutor(NIA) for the respondent.
3. Learned Counsel for the appellant submits
that the application for bail was never considered on
merits by this Court and the earlier appeal was withdrawn
by the appellant. A Full Bench of this Court in Younus
Aliyar v. Sub Inspector of Police [2016(3)KLT 877]
resolved an apparent conflict between two decisions of Co-
equal Benches as to the effect of the proviso to
subsection(5) of S.43D of the Unlawful Activities
(Prevention) Act, 1967 (UAPA). The Full Bench had laid
down clear guidelines as to how bail applications at
various stages are to be considered and made a specific
rider that the principles thus enunciated would all the
same be subject to the decisions of the Hon'ble Supreme
Court interpreting Articles 21 and 22 of the Constitution
of India. Though later to it, the decision of the Hon'ble
Supreme Court in Union of India v. K.A Najeeb [(2021) 3
SCC 713] held that the statutory restriction under
S.43D(5) of the UAPA, does not oust the power of the
Constitutional Courts to grant bail on grounds of
violation of Part III of the Constitution of India. It is
argued that the appellant has been continuously
incarcerated for the last two and half years and a mere
reading of para 19 of the impugned order, reveals that
there is no chance of the trial being commenced and
concluded in the near future.
4. It is further argued that the original crime
was registered as against A1 and A2, the former of whom
had left India with his wife and child and joined the
Islamic State of Iraq and Syria (ISIS). The 2nd accused
was a close associate of A1 and she has been handed down
an imprisonment for seven years which sentence granted by
the trial Court, though reversed by this Court in
Annexure-3, was restored by the Hon'ble Supreme Court by
Annexure-4. Further it is pointed out that A17 who left
India along with the appellant was arrested and now is
released. The medical condition of the appellant and his
parents were also urged in favour of considering the grant
of bail. It is pointed out that the High Court having not
considered the application on merits a proper
consideration on the grounds urged is possible in the
present appeal.
5. The learned Special Prosecutor would stoutly
oppose the grant of bail. It is pointed out that earlier,
the bail application filed by the appellant after the
filing of the final report was dismissed on entering an
opinion that there are reasonable grounds for believing
the accusation against the appellant to be prima facie
true. There is absolutely no change in circumstance which
would warrant consideration of a subsequent bail
application on merits. The appeal filed earlier, to this
Court was withdrawn realizing the futility in pressing the
same. The prayer at that point was confined to a fresh
application for bail on medical grounds which was allowed
by this Court. The appellant cannot be allowed to expand
the scope in the subsequent application by putting forth
the contention on merits which were already considered and
rejected. The offences charged against the appellant has
no parallel to those on which A2 was convicted and
sentenced. A17 was released since he had returned on his
own volition, succumbing to the pressure exerted by his
family and friends. A17 had turned approver and hence his
release on pardon. A16, unlike A2 had actively
participated in organizing meetings and carrying out
propaganda to further the object of ISIS, a proscribed
terrorist organization. If released on bail, A16 would
definitely continue the propaganda and recruit the young
and gullible and would attempt to again join the terrorist
organization; his first attempt having been foiled at the
last moment. The learned Prosecutor also points out that
the medical condition either of his own or his parents
were long existing and despite that he attempted to go
abroad and join a terrorist organization. It is argued
that the claim raised by the applicant under Article 21
and 22 has to be viewed in the context of the appellant's
alleged acts being in defiance of the values and
principles enshrined in the Constitution of India. The
appeal has to be rejected; strenuously urge the
Prosecutor.
6. Younus Aliyar (supra) answered the reference
and held that when once the NIA Court or the appellate
Court forms an opinion that there are reasonable grounds
for believing that the accusation against the accused
person is prima facie true on the basis of the case diary
or the report made under S.173 of the Cr.PC, the same is
not liable to be overlooked while dealing with a
subsequent bail application or appeal; unless there are
further materials or circumstances relied upon in support
of that application. It was held that when subsequent bail
applications are filed during the course of
investigation, the entire case diary can be perused to
consider the new materials or circumstances pointed out in
the subsequent bail application and this would take in
consideration of any matter left unconsidered in the
earlier round. However, when a final report has been filed
under S.173 Cr.PC and a bail application or appeal has
been rejected after that, finding a prima facie case to
exclude grant of bail under the proviso to S.43D(5), then
a subsequent consideration would stand excluded. It was
also observed that if there is a further investigation
ordered and a further report is filed, which is then
treated as the final report then that could also be
subjected to fresh scrutiny for grant of bail. The Full
Bench, as argued by the learned Counsel for the appellant
did not place a rider to the aforesaid view but only
observed that these principles are in furtherance of the
right of the accused as protected in terms of the
judgments of the Hon'ble Supreme Court interpreting
Articles 21 and 22 of the Constitution of India.
K.A.Najeeb (supra) was a reiteration of such principles
and the power of Constitutional Courts to grant bail; even
melting down the rigour of the proviso under S.43D(5) was
emphasized; when there is no likelihood of trial being
completed within a reasonable time and a period of
incarceration already undergone has exceeded a substantial
part of the prescribed sentence.
7. On the aspect of delay we have looked at
paragraph 19 of the impugned order. The Special Court has
specifically observed that the charge would be framed on
05.04.2021 and that the trial can be expedited. The Court
also noticed that trial in three cases are scheduled to
commence in April itself and hence practically speaking
the conclusion of the trial in the instant case would
probably take one year. It has also been observed by the
NIA Court that the trial is not delayed by reason of any
lethargy on the part of the prosecution. The NIA Court
having specified the time frame we do not think the first
limb of the principle in K.A.Najeeb (supra), as to
likelihood of trial being not completed within a
reasonable time; so as to exceed a substantial portion of
the prescribed sentence arise at all.
8. The appellant herein was arrested 18.09.2018
and he has remained in judicial custody for almost three
years. The offences alleged against the appellant are
under S.120B r/w 125 of IPC and Sections 38 and 39 of
UAPA. The punishment for the offences except that under
S.120B range from rigorous imprisonment of seven years to
ten years. It has also to be observed that there is no
warrant to assume at this stage that the sentences handed
down under each of the provisions would not be the maximum
and the court would in its discretion allow the sentences
to run concurrently. We do not think the appellant
satisfies the second limb of the extenuating circumstance
pointed out in K.A.Najeeb (supra) as to having now
exceeded a substantial part of the prescribed sentence.
If, in fact the trial takes a year as noticed by the NIA
Court, even then it cannot be said that the appellant
would have by then exceeded a substantial portion of the
prescribed sentence.
9. The objection filed by the respondent lists
out the previous bail applications filed by the appellant.
Crl.M.P No.208/2018 was filed at the investigation stage
which was rejected by the Special Court. When the appeal
was pending before this Court, the charge sheet was filed
and the appeal was disposed of permitting the appellant to
move the Special Court afresh. Crl.M.P No.40/2019 was then
filed which was rejected by a considered order dated
12.04.2019 finding the accusations against the appellant
to be prima facie true. An appeal therefrom stood
withdrawn as is seen from Annexure II judgment. A reading
of the judgment would indicate that the NIA had
specifically relied on Younus Aliyar (supra) and the
appellant had thought it fit to withdraw the appeal;
presumably on the realization of the futility in pressing
the same. The decisions in K.A.Najeeb (supra) does not
change the legal position in any manner and hence a second
application would not be maintainable, especially in the
context of the liberty granted to the appellant being
confined to medical grounds.
10. Despite our finding on the maintainability
of the second bail application, for completeness we looked
at the merits of the matter. We do not find any parallel
with the case against A2. Though the charges framed
against A2 were under S.122 IPC and Sections 38, 39 and 40
of the UAPA, the conviction sustained was only for the
offence under S.38 of UAPA. A2 had merely followed A1 who
was actively propagating the ideology of the Islamic State
and advocating, among other things war against
non-Muslims. A2 was arrested at the Airport when she was
attempting to fly out, to join A1, which attracts the
offence under S.38 of the UAPA. But it was found that she
had not taken any steps to wage a war, attempted or
abetted waging of such a war against any Asiatic Power in
alliance with or at peace with the Government of India,
thus dropping the charges under S.125 IPC. It was also
found that there was no material evidence on record to
prove the ingredients of the charges under S.39 and 40 of
the UAPA. It was hence A2 was handed down a sentence of
seven years.
11. We have gone through the report under S.173
Cr.PC, as produced across the Bar by the learned Counsel
for the appellant. We find the allegations against A17 to
be more comprehensive than that found proved against A2,
as discernible from Annexure III judgment of this Court in
the appeal filed by A2. A16 together with A17 had been,
from April, 2017, actively involved in hatching a criminal
conspiracy over various encrypted social media platforms
with A1, A10, A14 and others who have physically joined
ISIS at Nangarhar province of Afghanistan. In furtherance
of the said conspiracy during May 2017, A16 and A17, who
had become members of ISIS had conducted conspiracy
classes/meeting at Wayanad for promoting the objectives of
ISIS in furtherance of the activities of the proscribed
terrorist organization. A16 and A17, while in India and in
Muscat continued to conduct classes/meetings in an attempt
to motivate their friends, in person and through social
medial platforms to sympathize with the cause of ISIS and
actively involve in its propagation.
12. Again in furtherance of waging war against the
Asiatic Power in alliance with the Government of India
both accused traveled to Tehran during October 2017. A17
returned to India due to intervention of his family and
friends while A16 traveled to Afghanistan with the
intention of physically joining the absconding accused and
ISIS. In the present case, from the report under S.173 we
find prima facie the existence of the ingredients of the
offence under S.123 IPC and Sections 38 and 39 of UAPA.
The appellant was arrested at Afghanistan and imprisoned
and later deported to India. The appellant was arrested on
setting foot back in India. The allegations against the
appellant are more serious than that found against A2 and
he had attempted to join the ISIS to wage war against an
Asiatic power in alliance with the Government of India.
The attempt did not achieve fruition only because of it
being foiled by his arrest by the Afghan authorities. The
forensic examination of the digital device seized from the
possession of the appellant has been completed by C-Dac
and a report is submitted before Court. We have been
informed that the case is posted on 03.08.2021 for framing
charges. We find no reason to grant the appellant bail at
this juncture having found prima facie that the accusation
against the appellant are true.
13. The Special Court has noticed that the
appellant's ailments arising from an earlier accident are
cared for in the Prison and he could seek for any
treatment required and permissible under the Prison Rules.
As pointed out by the Prosecutor the medical condition of
his parents are long existing and it did not dissuade him
from proceeding to wage a war against peaceful nations.
The case of A17 is quite distinct and he has been treated
as an approver which disables the appellant from claiming
any similar treatment.
We find no compelling reason to grant bail. On
maintainability as also on merits we reject the appeal.
Sd/-
K. Vinod Chandran
Judge
Sd/-
Ziyad Rahman A.A.
Judge
jma/-
APPENDIX
APPELLANT'S ANNEXURES:
ANNEXURE I: TRUE COPY OF THE MRI REPORT DATED 06.11.2019
AND MEDICAL PRESCRIPTION ISSUED FROM THE
GOVERNMENT MEDICAL COLLEGE
ANNEXURE II A TRUE COPY OF THE JUDGMENT IN CRL. APPEAL NO.
465/2020 DATED 26.06.2020 PASSED BY THIS
HON'BLE COURT
ANNEXURE III A COPY OF THE FINAL JUDGMENT PASSED BY THIS
HON'BLE COURT IN CRL.APPEAL NO.506/2018 ON
04.10.2018
ANNEXURE IV A COPY OF THE JUDGMENT PASSED BY THE HON'BLE
APEX COURT IN CRL.APPEAL NO.1199/2019 AND
1200/2019 (COMMON ORDER) DATED 02.08.2019
