Vikaraman vs Central Bureau Of Investigation
2021 Latest Caselaw 6375 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE ASHOK MENON

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                        Bail Appl.No.997 OF 2019

 AGAINST THE ORDER/JUDGMENT IN CRMP 2113/2015 DATED 08-07-2015 OF
            DISTRICT COURT & SESSIONS COURT,THALASSERY

      CRIME NO.780/2014 OF Kathirur Police Station , Kannur


PETITIONER/S:

      1         VIKARAMAN,
                AGED 46 YEARS, S/O. BALAN,
                KATTIL MEETHAL HOUSE, KIZHAKKE KADIRUR,
                THALASSERY TALUK, KANNUR DISTRICT.

      2         JIJESH C.P,
                AGED 36 YEARS, S/O. DAMU NAMBIDI,
                KUNIYIL HOUSE, KIZHAKKE KADIRUR,
                THALASSERY TALUK, KANNUR DISTRICT.

      3         PRABHAKARAN T,
                AGED 42 YEARS, S/O. ACHU,
                LUDHIYA NIVAS, KUNNUMMAL HOUSE,
                MALOOR P.O, KANNUR DISTRICT.

      4         SHIBIN,
                AGED 30 YEARS, S/O. GANGADHARAN,
                OTHYOTH HOUSE, VETTUMMAL, KADIRUR,
                THALASSERY TALUK, KANNUR DISTRICT.

      5         SUJITH P,
                AGED 32 YEARS, S/O. SURENDRAN,
                CHOOLAVIL HOUSE, KOTTAYAMPOYIL P.O,
                THALASSERY TALUK, KANNUR DISTRICT.

      6         VINOD @ VINU,
                AGED 35 YEARS, S/O. BALAKRISHNAN,
                NANDIATH HOUSE, KADIRUR P.O,
                THALASSERY TALUK, KANNUR DISTRICT.
 Bail Appl.No.997 OF 2019

                               2



      7      RIJU,
             AGED 30 YEARS, S/O. AANDI,
             MEETHALA THACHARATH HOUSE, KAVILMOOLA P.O,
             MALOOR, KANNUR DISTRICT.


      8      SINIL,
             AGED 37 YEARS, S/O. LATE NARAYANAN,
             SINIL NIVAS, KUNNUMMAL, THOLAMBRA P.O,
             KANNUR DISTRICT.


      9      BIJESH POOVADAN @ BIJU,
             AGED 34 YEARS, S/O. BALAKRISHNAN,
             MEETHALA THACHARATH , KAVILMOOLA P.O,
             MALOOR, KANNUR DISTRICT.


      10     VIJESH @ MUTHU,
             AGED 30 YEARS S/O. BHASKARAN,
             KANATHIL HOUSE, UKKAS MOTTA, KADIRUR,
             THALASSERY TALUK, KANNUR DISTRICT.

      11     VIJESH @ GEORGEKUTTI,
             AGED 36 YEARS, S/O. VALSAN,
             VALIYAPARAMBATH, UKKAS MOTTA, KADIRUR,
             THALASSERY TALUK, KANNUR DISTRICT.

      12     MANOJ,
             AGED 43 YEARS, S/O. RAGHAVAN,
             KANNOTH HOUSE, BRAHMAVU MUKKU,
             KIZHAKKE KADIRUR, THALASSERY TALUK,
             KANNUR DISTRICT.


      13     SHABITH,
             AGED 33 YEARS, S/O. GOVINDAN,
             MEETHALE VALIYOTH, BRAHMAVU MUKKU,
             EAST KADIRUR, THALASSERY TALUK,
             KANNUR DISTRICT.

      14     NITH @ NIJITH,
             AGED 30 YEARS, S/O. RAJAN,
             VAKKUMMAL, AMBILAD P.O, NIRMALAGIRI,
             KOOTHUPARAMBA, THALASSERY TALUK,
             KANNUR DISTRICT.
 Bail Appl.No.997 OF 2019

                                  3



      15        P.P. RAHIM @ JAGA RAHIM,
                AGED 39 YEARS, S/O. MUHAMMED,
                POOLAKKANDI PARAMBA, AMBILAD P.O,
                NOW RESIDING AT C.K. QUARTERS, 24/393,
                KUTHUPARAMBA MUNICIPALITY, PAZHAYANIRATH,
                THALASSERY TALUK, KANNUR DISTRICT.

                BY ADVS.
                SRI.K.GOPALAKRISHNA KURUP (SR.)
                SRI.P.N.SUKUMARAN
                SRI.K.VISWAN
                SMT.DEEPTHI S.MENON
                SMT.ANUROOPA JAYADEVAN

RESPONDENT/S:

                CENTRAL BUREAU OF INVESTIGATION,
                REPRESENTED BY SUPERINTENDENT OF POLICE,
                C.B.I., SCB, THIRUVANANATHAPURAM.

                R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P.
                FOR C.B.I.

     THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD                ON
10.11.2020, THE COURT ON 23.02.2021 PASSED THE FOLLOWING:
 Bail Appl.No.997 OF 2019

                                   4




                             O R D E R

Dated this the 23rd day of February 2021

Application filed under Section 439 of the Cr.P.C for regular

bail.

2. The applicants are accused Nos.1, 2, 4 to 10, 13 to 17

and 19 in crime No. 780/2014 of Kadirur Police Station for having

allegedly committed offences punishable under Sections 143, 147,

148, 201, 202, 212, 324, 307 and 302 read with Section 149 of the

I.P.C and under Section 120-B I.P.C, under sections 3 and 5 of the

Explosive Substances Act 1908 and under Section 27 of the Arms

Act as also under Section 15 (1) (a) (i) read with Sections 16 and 19

of the Unlawful Activities (Prevention) Act 1967 (hereinafter referred

to as UAPA). After investigation was handed over to the Central

Bureau of Investigation, the crime was re-registered as RC No.10

(S)/2014/CBI/SCB/TVPM. On completion of the investigation, the

CBI filed the final report against 19 persons arraigned as accused

before the Court of Session, Thalassery as S.C. No. 200/2015. Later,

vide order dated 07/03/2017 of the Hon'ble Apex Court in Crl. A. Bail Appl.No.997 OF 2019

No. 519/2017 the case was transferred to the Court of the Special

Judge, (SPE/CBI)-III, Ernakulam and taken on file of that Court as

S.C. No. 343/2017 and is still pending trial before that Court. After

further investigation, supplementary final report was filed, and at

present, there are a total of 25 accused arrayed in the crime. The

six additional accused implicated later, are enlarged on bail.

3. The prosecution case can be encapsulated as thus:

There was a rivalry existing between members of R.S.S and the

members of the C.P.I (M) within the station limits of Kadirur Police

Station. The deceased Manoj was a leader of the R.S.S and had by

his activities invited the wrath of members of C.P.I (M) in the

locality. He was also an accused in a case of attempted murder of

Sri P.Jayarajan, the District Secretary of C.P.I (M), Kannur district.

And hence, they were after his blood seeking revenge. It is alleged

that the accused had a conspiracy to eliminate Manoj and

accordingly on 01/09/2014 at about 11 AM, 16 accused persons

under the leadership of the first accused (A1), Vikraman, lay in wait

at a house under construction belonging to one Rijeesh @ Riju near

the scene of crime. The deceased and his friend Pramod came in a

Maruti van bearing registration No. KL-58/G-4530 driven by the Bail Appl.No.997 OF 2019

deceased. When the van reached a place named Palluvathu valavu in

Kadirur, A1 hurled the bomb at the deceased. He lost control of the

vehicle and it dashed against an electric post and halted.

Immediately the accused persons lying in wait for him, pounced

upon him and indiscriminately inflicted fatal blows on him with

swords and choppers etc. A1 also inflicted cut injury with a

chopper on Pramod (CW 49) and attempted to murder him. Pramod

managed to flee but the deceased succumbed to the fatal injuries

sustained by him. The commotion attracted persons in the locality

and they began to reach the scene of crime. To scare them away,

the accused persons exploded another bomb.

4. Several applications were filed by the applicants seeking

bail before the Sessions Court, Thalassery as also appeals before

this Court. Application was also filed for statutory bail under Section

167 (2) Cr.P.C. But the same also was dismissed by the Sessions

Court, Thalassery. After the case was made over to the Special

Court, Ernakulam, bail applications were filed again which got

dismissed repeatedly. The accused persons had filed W.P.(C)

No.25403/2017 before this Court challenging the order granting

sanction by the Central Government for prosecution under the Bail Appl.No.997 OF 2019

provisions of UAPA and taking of cognizance of the offences by the

trial Court on the basis of that order. It was urged that the

competent authority to grant sanction for prosecution is the

Government of Kerala. The Writ Petition was allowed in part holding

that the cognizance taken by the Sessions Court, Thalassery prior to

the grant of sanction was bad in law. The trial Court was therefore

directed to consider the matter afresh and to decide whether

cognizance has to be taken or not. Thereafter, The Court of the

Special Judge took fresh cognizance of the offences against the

applicants. Writ Appeal is filed by the applicants as WA

No.766/2018 challenging the order in W.P.(C) No. 25403/2017.

The same is admitted and pending disposal.

5. The trial could not therefore commence and the

applicants continue in detention as undertrial prisoners. The

accused were all arrested on different dates from 17/09/2014 to

22/01/2015. They continue in custody. All the accused except the

applicants are on bail. The formal charge proceeding trial is yet to

be framed. It is stated that the applicants have been languishing in

jail for more than 6 years. It is therefore prayed that the applicants

may be released on bail.

Bail Appl.No.997 OF 2019

6. Heard Sri. K.Gopalakrishna Kurup, learned Senior Counsel

appearing for the applicants instructed by Sri. P.N.Sukumaran and

Sri.Sasthamanglam S.Ajithkumar, the learned Special Prosecutor

appearing for the C.B.I.

7. The learned Senior Counsel draws the attention of this

Court to a catena of decisions rendered by the Apex Court in Om

Prakash v. State of Punjab [AIR 1961 SC 1782], Usmanbhai

Dawoodbhai Memon v. State of Gujarat [AIR 1988 SC 922],

Harishchandrasing Sajjansinh Rathod & Ors v. State of Gujarat [AIR

1979 SC 1232], Hussainara Khatoon & Ors v. Home Secretary, State

of Bihar, Patna [AIR 1979 SC 1360], S.N. Thapa v. State of

Maharashtra [(1994) 4 SCC 38], Hitendra Vishnu Thakur & Ors v.

State of Maharashtra & Ors [AIR 1994 SC 2623], Supreme Court

Legal Aid Committee representing Undertrial Prisoners v.Union of

India [1994(6) SCC 731], Giani Pratap Singh v. State of Rajasthan &

Ano [AIR 1996 SC 74], Shaheen Welfare Association v. Union of

India & Ors [AIR 1996 SC 2957], R.D Upadhya v. State of A.P. & Ors

[(1996) SCC(Cri) 519], Mahesh Kumar Bhawsinghka v. State of Delhi

[(2000) 9 SCC 383], Vivek Kumar v. State of U.P. [(2000) 9 SCC

443], Sanjoy Kumar Das v. State of West Bengal [2000(2) ACR Bail Appl.No.997 OF 2019

1056(SC)], Ram Choubey v. State of Bihar & Ors [AIR 2002 SC

2336], Union of India v. Rajesh Ranjan [(2004) 7 SCC 539], State of

Kerala v. Raneef [AIR 2011 SC 340], Sanjay Chandra v. CBI [AIR

2012 SC 830] and Umarmiya Ismailmiya Saiyed v. State of Gujarat

[AIR 2017 SC 707] and several other decisions rendered by different

High Courts to impress upon this Court the importance of speedy

trial and the entitlement of the accused to bail in case speedy trial is

not possible.

8. The learned Senior Counsel submits that the prosecution

is mainly relying upon the explosion of a bomb to scare the public

from reaching the scene of occurrence as an act of terror so as to

attract the provisions under the UAPA. Section 15 (i) (a) of the UAPA

states about what is a terrorist act. Whoever does any act with

intent to threaten or likely to threaten the unity, integrity, security,

economic security or sovereignty of India or with intent to strike

terror or likely to strike terror in the people or any section of the

people in India or in any foreign country, by using bombs, dynamite

or other explosive substances or inflammable substances or

firearms or other lethal weapons or poisonous or noxious gases or

other chemicals or by any other substances (whether biological, Bail Appl.No.997 OF 2019

radioactive, nuclear or otherwise) of a hazardous nature or by any

other means of whatever nature to cause or likely to cause death of,

or injuries to, a person or persons, commits a terrorist act. This

Court has already considered this argument of the learned Senior

Counsel in Vikraman v. State of Kerala & Ors [2015 (2) KLJ 113] and

concluded that the alleged act of offence in this crime will attract

the definition of terrorist activity under Section 15 of the UAPA. I am

therefore not inclined to reopen that question in this application for

bail.

9. The learned Senior Counsel has pointed out to the

statements of the various witnesses recorded by the investigating

agency and other materials to indicate that the complicity of the

applicants is not satisfactorily established. A detailed examination

of the evidence and statements of witnesses and other materials are

not contemplated while considering application for bail (See Kalyan

Chandra Sarkar v. Pappu Yadav [2005 KHC 604 : (2005) 2 SCC 42)] .

What is required under Section 43-D (5) of the UAPA to refuse bail

is a prima facie case against the accused. The trial courts as also

this Court in appeal had elaborated the reasons for declining grant

of bail to the applicants and there are marginal enough reasons to Bail Appl.No.997 OF 2019

believe that the applicants were, prima facie, guilty of the

accusations made against them. A reconsideration of the merits of

the accusations made against the applicants is not contemplated.

The argument of the learned Senior Counsel based on the fact that

the applicants have been undertrial prisoners for more than six

years and that there are no possibility of an expeditious disposal of

the case is something which can be lend ears.

10. The Hon'ble Supreme Court had very recently, in Union of

India vs. K.A. Najeeb [2021 SCC OnLine SC 50] considered the

propriety of granting bail to an accused who has allegedly

committed an offence punishable under the UAPA. In that case, the

accused was arrested on 10/04/2015 and was undertrial and this

High Court held that undertrial accused could not be kept in

custody for too long when the trial was not likely to commence in

the nearer future, for not doing so would cause serious prejudice

and sufferings to him. The learned Senior Counsel has relied upon

the decision in Najeeb's case (supra) to be pressed into service in

the instant case as well despite the rigours of Section 43-D(5) of the

UAPA.

Bail Appl.No.997 OF 2019

11. The learned Special Prosecutor appearing for the CBI, Sri.

Ajithkumar, has vehemently opposed the application for bail by

stating that the applicants were involved in a very ghastly crime

committed during broad daylight openly defying law and order and

they repeatedly blasted country made bombs to strike terror among

the public and thereafter, slit open the throat of the deceased with

the sharp edged weapon to make it sure that there are no signs of

life left in him. Moreover, there is an embargo under Section 43-D

(5) of the UAPA from granting bail to the applicants against whom

there is prima facie material to indicate their complicity. In case the

applicants are released on bail, there is every possibility of their

committing offences of similar nature, intimidating and influencing

the witnesses and creating terror among the public. CW-49 is a

witness who was attempted to be murdered. He is an eye witness to

the occurrence. In case the applicants are released on bail, there is

every possibility of his life being endangered.

12. After having considered the entire facts and

circumstances of this case, I have no doubt that the applicants

under normal circumstances should be declined bail. In Najeeb's

case (supra) relying on the decisions in Shaheen Welfare Association Bail Appl.No.997 OF 2019

case (supra) Supreme Court Legal Aid Committee case, Hussain vs.

Union of India [(2017) 5 SCC 702] , and Parmjith Singh v. State (NCT

of Delhi) [(1999) 9 SCC 252], it was held thus:

"18.It is thus clear to us that the presence of the statutory restrictions like Section 43-D (5) of UAPA per se does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Instead, both the restrictions under a Statute as well as the powers exerciseable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of the proceedings, the Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer.

However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the Bail Appl.No.997 OF 2019

trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the Appellant is right to lead evidence of its joys and establish the charges beyond any doubt and simultaneously the respondent's right Guaranteed under Part III of our Constitution have been well protected.

20. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D (5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent Court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under the UAPA. Instead, Section 43-D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the well settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of accused of aiding the trial by absconsion etc."

The accused in K.A. Najeeb's case (supra), had undergone more

than 5 years of imprisonment and the co-accused who were tried

were awarded cumulative sentences ranging between 2 and 8 years

of rigourous imprisonment. The accused who was absconding has

therefore undergone a major portion of the sentence which could be Bail Appl.No.997 OF 2019

awarded to him in case of conviction. Hence the Apex Court found

that it is unnecessary to detain the accused therein any longer, and

confirmed the order of granting bail. In the instant case, the

applicants are accused of having committed an offence of murder

and attempted murder and they could be sentenced to

imprisonment for life or even with the death penalty. Under the

circumstances, it may not be appropriate to release the accused on

bail, submits the learned Special Prosecutor for the CBI.

13. Having considered the entire facts and circumstances in

this case, I am prima facie convinced that the accused are guilty of

committing the offences alleged against them. But it is also

pertinent to note that the applicants have been in custody for more

than 6 years and therefore, further incarceration of the applicants

without trial may not be justified. Hence, I am of the opinion that

the applicants are entitled to be released on bail.

In the result, the bail application is allowed and the applicants

are directed to be released on bail on execution of a bond for

₹50,000/- (Rupees fifty thousand only) each with two solvent

sureties each for the like amount to the satisfaction of the

jurisdictional Court and on following further conditions: Bail Appl.No.997 OF 2019

(i) They shall not enter Kannur District till the completion of

the trial and shall appear before the jurisdictional Court on each day

the case is posted for trial without fail, except on exemption

granted by the Court.

(ii) They shall not intimidate or influence witnesses and shall

not tamper with evidence.

(iii) They shall not get involved in any crime during the

currency of the bail.

(iv) They shall surrender their passports before the

jurisdictional Court and shall not go abroad without the permission

of the jurisdictional Court.

Breach of any of the conditions shall entail in cancellation of

bail on an application being filed by the prosecution before the

jurisdictional Court.

Sd/-

ASHOK MENON JUDGE jg