Kerala High Court
Riyas [email protected] Riyas Aboobakkar @ Abu ... 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. 105 OF 2021
[AGAINST THE ORDER IN CRL.M.P.NO.50/2020 IN S.C.NO.3/2019(NIA)
DATED 04.12.2020 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM]
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APPELLANT/ ACCUSED NO.18:
RIYAS A @ RIYAS ABOOBAKKAR @ ABU DUJANA
AGED 29 YEARS, OCC-LABOURER, S/O. ABOOBAKKAR,
HOUSE NO XVI/717, MUTHALAMAD PANCHAYAT,
AKSHARA NAGAR, CHULLIYARMEDU,
KOLLAMCODE, PALAKKAD, PIN - 678 507.
BY ADVS.
SRI.BIJU ANTONY ALOOR
SRI.K.P.PRASANTH
SMT.T.S.KRISHNENDU
SHRI.HIJAS T.T.
SHRI.SHAFIN AHAMMED
SMT.ARCHANA SURESH
RESPONDENT/ COMPLAINANT:
UNION OF INDIA,
REPRESENTED BY THE INVESTIGATING OFFICER,
NATIONAL INVESTIGATING AGENCY,
COCHIN UNIT, ERNAKULAM
THROUGH THE SPL.PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
BY ADV SRI.P.VIJAYAKUMAR, ASG OF INDIA
BY SRI.ARJUN AMBALAPATTA, SENIOR GOVT.PLEADER, NIA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2021, THE COURT ON 04.08.2021 DELIVERED THE FOLLOWING:
Crl.A.No.105 of 2021 - 2 -
K. Vinod Chandran & Ziyad Rahman A.A., JJ.
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Crl.A.No.105 of 2021
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Dated, this the 04th August 2021
JUDGMENT
Vinod Chandran, J.
The appeal is filed against the dismissal of a
bail application in S.C.No.No.3/2019/NIA by the 18th
accused. The offence alleged are under 120B IPC and
Sections 38 and 39 of Unlawful Activities (Prevention)
Act, 2019 ['UA(P)A' for short]. The appellant was arrested
on 30.04.2019 and is continuing in judicial custody since
then, excepting five days when he was sent to police
custody on appropriate orders. The present application is
the fourth bail application filed by the appellant.
2. We heard Sri.B.A.Aloor, learned Counsel
appearing for the appellant and Sri.Arjun Ambalapatta,
learned Senior Public Prosecutor, NIA.
3. The learned Counsel for the appellant points
out that there are 18 accused, some of whom are
absconding, some convicted and the others prefer detention
in custody. It is pointed out that the entire allegations
commenced from the registration of a crime in Chandera
Police Station, Kasaragod. The appellant has been roped in
invoking Section 120B, unjustifiably since there is no
evidence of the appellant having participated in any
conspiracy. The appellant is not a member of any terrorist
organization and there is not even an allegation that the
appellant acted with the intention to bring Islamic State
to India. In the charge-sheet, there is no no allegation
of threats being levelled against any of the witnesses and
the appellant would comply with any stringent conditions
imposed by this Court and would faithfully attend before
Court when summoned. The incriminating material available,
according to the prosecution, are 40 documents and the
statements given by CW-21 to CW-29. The investigation has
been carried on from 2016 to 2019 and no material is
available with the prosecution which would even prima
facie establish the accusation against the appellant. The
appellant has not moved out of India and his Passport does
not show any visit to an Islamic State or Sri Lanka. It is
alleged that the entire allegation against the appellant
hinges on a conspiracy hatched, which led to suicide
bombings carried out in the neighbouring Sri Lanka. The
appellant relies on Union of India v. K.A Najeeb [(2021)
3 SCC 713] and submits that he is under custody from
29.04.2019 and his statement was recorded on 13.05.2019
while continuing in custody.
4. The learned Special Prosecutor points out
that though the investigation commenced from Crime No.534
of 2016 of Chandera Police Station, registered on the
complaint of the father of A1; that A1, his wife and child
are missing after they left for Bombay. Investigation
revealed a criminal conspiracy for commission of unlawful
activities, membership and support to a proscribed
terrorist organization, the Islamic State of Iraq and
Syria (ISIS). There are 40 persons arraigned in the list
of accused and A2 was also incorporated in the list of
accused. The trial against A2 is completed and her
conviction under Section 38 of UA(P)A has been confirmed
by the Hon'ble Supreme Court and the sentence of 7 years
of rigorous imprisonment, as granted by the trial Court,
is restored and affirmed. Many of the accused left the
country and joined ISIS by travelling to the areas
controlled by ISIS in the Nanagarhar province of
Afghanistan or Syria. A16 and A17 were booked in the
course of investigation and a supplementary charge-sheet
was filed against them before the Special Court. On
getting reliable information that A1 and A8, who joined
ISIS in Syria, are in continuous contact with
friends/relatives and are attempting to motivate youth in
Kasargod and Palakkad districts to actively support the
cause of ISIS, further investigation was carried out. A18,
the appellant herein, was thus arraigned along with A19 to
A21 by report dated 29.04.2019. The NIA Court has thrice
rejected the bail applications and there is no scope for
consideration of his subsequent application.
5. We get the details of the earlier bail
applications from the impugned order itself. Twice
applications were filed at the stage of investigation,
which were rejected and the third application filed after
submission of the final report under Section 173 Cr.P.C.
was also dismissed. No challenge was made from any of
these orders. We notice the Full Bench decision of this
Court in Younus Aliar v. Sub Inspector of Police
[2016(3)KLT 877]. The Full Bench answered a 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
reject 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 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, also 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. None of these aspects arise in the
case of the appellant as of now.
6. The allegations against the appellant are
listed out in the impugned order, which are extracted
below:
• "He has been in on line contact with A1 and other
absconding accused since 016. The audio clips, chats,
etc. are relied on by the prosecution apart from the
statements of approvers.
• He has been following the audio clips of A1,
including the 50th audio clip which he had circulated
on social media platform, and also audio clips that
would promote suicide attacks.
• He had instigated others to carry out terror attacks
in India and did several acts to further the
activities of ISIS in India.
• He has been following the speeches/videos of Azhran
Hashim, supporter of ISIS in Sri Lanka for more than
a year.
• He has been influenced by speeches of Zakir Naik.
• He was ready to carry out a suicide terror attack in
Kerala for furthering the activities of ISIS as
directed by the absconding accused.
• The 19th and 20th accused have confessed before the
Judicial First Class Magistrate under Section 164
Cr.P.C in which they have clearly explained the role
of the petitioner to join ISIS and further its
activities"
7. The prima facie finding of the Court below,
while dismissing the application, found in the order dated
24.05.2019 is also extracted herein below:
"The audio clip relied on by the
prosecution and contained in the pen drive
submitted to the court for the purpose of this
petition was taken from the Mobile Phone used
by the petitioner. The audio clip is allegedly
that of Abdul Khayoom, an accused in the
Valapattanam ISIS case. The voice clip
justifies suicide attacks and urges Muslim
Youths to be part of it. The fact that the
voice clip was found in the mobile phone of the
petitioner will indicate that he is interested
in the ideologies of ISIS. The investigation
also has revealed that the phone contained
images circulated to celebrate the suicide
attack in Sri Lanka on the Easter day ie
21.4.2019. That apart, the witnesses, who were
questioned by the investigation officer, have
spoken about the peculiar nature of the
petitioner and also his affinity towards ISIS.
A few witnesses have stated that the petitioner
had urged them to follow the ideology of ISIS.
Thus, he was actively propagating the ideology
of ISIS. The Case diary also reveals his close
association with the group supporting the
ideology of Zahran Hashim who was responsible
for the bomb blast in Sri Lanka".
8. We are of the opinion that the appellant
having not travelled outside India is insignificant and
irrelevant insofar as the ingredients of the charges
levelled against him under the UA(P)A. The material
recovered during investigation, specifically the data
recovered from the mobile phone of the accused, points to
a larger conspiracy for spreading the tentacles of ISIS;
which is still under investigation. The appellant was
hoarding books and materials, which indicate active
support and propagation of the ideology of ISIS. These
were noticed at the earlier instance to find a prima
facie case against the appellant herein.
9. The materials to be used in trial against the
accused are mobile phones, SIM Cards, air gun, personal
diaries and other books seized from the house of the
appellant by the investigation team. The appellant has
been in constant contact through social media platforms
with absconding A1. The NIA in its objections specifically
refer to the 50th audio clip which A1 had circulated in
encrypted social media 'Telegram Messenger', instigating
Muslims to carry out terror attacks within India. The
accused-appellant has also been chatting online with
absconding accused Abdul Khayoom @ Abu Khalid, who is
charged in the ISIS Valapattanam case. There is also
evidence of the appellant having planned to carry out a
suicide attack in Kerala for furthering the activities of
ISIS in Kerala. There is no allegation, as submitted by
the learned Counsel for the appellant, that he is actively
involved in the explosion carried out at Sri Lanka. The
allegation is that the accused was following the
speeches/videos of Zahran Hashim, the mastermind of the
2019 Easter day suicide attacks in the island nation
exhorting violent 'jihad'.
10. The appellant, along with A19 and A20, has
been propagating the ideology of ISIS to further the
objectives of the proscribed organization. The appellant
is also charged with organizing conspiracy meetings in
Kochi City on 26.10.2018 for furthering the activities of
ISIS, wherein he had motivated and sought support from
co-conspirators in committing terrorist attacks inside
Kerala identical to that carried out in Sri Lanka. A19 and
A20 have disclosed these facts in the statements made
before the Magistrate, recorded under Section 164 of
Cr.P.C. They have been made approvers by granting pardon
and they have clearly spoken of the role of the present
appellant. The said statements have been perused by us.
11. In the above circumstances, we find the
Special Court is justified in rejecting the application
for bail. We find justification for both findings. First
on the subsequent application being not maintainable, when
after filing of charge-sheet an earlier application for
bail stood rejected as has been held by the Full Bench of
this Court in Younus Aliyar (supra). On merits too, having
found the accusations against the appellant to be prima
facie true, we find the Special Court justified in
rejecting the prayer for bail under Section 43D(5) of the
UA(P)A.
The appeal would stand rejected.
Sd/-
K. Vinod Chandran
Judge
Sd/-
Ziyad Rahman A.A.
Judge
vku/-
APPENDIX OF CRL.A 105/2021
APPELLANT'S ANNEXURE:
ANNEXURE 1 TRUE COPY OF THE ORDER PASSED
BY LD SPL. COURT FOR THE TRIAL OF
NIA CASES, ERNAKULAM IN
CRL.MP NO.50/2020 DATED ON 04-12-2020.
