Kerala High Court
Jishad B vs Union Of India on 2 April, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.A NO. 228 OF 2025
AGAINST THE ORDER DATED 18.12.2024 IN CRMP 354/2024 IN SC
NO.2 OF 2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM
APPELLANT/PETITIONER/ACCUSED NO.33:
NASSAR
AGED 47 YEARS
S/O.MAMMY, KALLIVALAPPIL HOUSE, KUMARIKAYATTAM,
KEEZHAYUR, PATTAMBI POST, PALAKKAD DISTRICT,
PIN - 679303
BY ADVS.
E.A.HARIS
P.P.HARRIS
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RESPONDENTS/RESPONDENTS/COMPLAINANT
1 UNION OF INDIA
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, KOCHI, PIN - 682020
2 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY, NIA KOCHI UNIT,
KOCHI, PIN - 682020
BY ADVS.
SREENATH S
SASTHAMANGALAM S. AJITHKUMAR (SR.), DSGI FOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.04.2025, ALONG WITH CRL.A.225/2025 & 242/2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.A NO. 225 OF 2025
AGAINST THE ORDER DATED 20.12.2024 IN CRMP 482/2024 IN SC
NO.2 OF 2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM
APPELLANTS/PETITIONERS/ACCUSED NOS. 25, 27, 31 & 32:
1 JAMSHEER H
AGED 31 YEARS
S/O.HAKEEM, 32/192(1), KAREEM NAGAR, PUTHUPALLITHERU,
PALAKKAD DISTRICT, KERALA (SUNDARAM COLONY, KALPATHY,
PALAKKAD DISTRICT, PIN - 678004
2 ABDUL BASITH
AGED 29 YEARS
S/O. MUHAMMED SHEREEF, 48/1248, U.P SCHOOL PALLI
STREET, BOC ROAD, PATTIKKARA, PALAKKAD DISTRICT,
PIN - 678014
3 MUHAMMED SHEFEEK K
AGED 25 YEARS
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S/O. KOYA. M @ KOYAKUTTY, PULINTHARAKKAL HOUSE,
CHADANAMKURUSSI, THANAL NAGAR, NURANI, PALAKKAD
DISTRICT, PIN - 678004
4 ASHRAF K
AGED 35 YEARS
S/O. KOYA, 13/379, KUNDUKATTIL HOUSE, PARUVAKKADAVU,
PATTAMBI, PALAKKAD, PIN - 679303
BY ADVS.
E.A.HARIS
P.P.HARRIS
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 UNION OF INDIA
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, KOCHI, PIN - 682020
2 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY, NIA KOCHI UNIT, KOCHI,
PIN - 682020
BY ADVS.
SREENATH S
SASTHAMANGALAM S. AJITHKUMAR (SR.), DSGI FOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.04.2025, ALONG WITH CRL.A.228/2025 & CRL.A.242/2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
CRL.A NO. 242 OF 2025
AGAINST THE ORDER DATED 18.12.2024 IN CRMP 481/2024 IN SC
NO.2 OF 2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES,
ERNAKULAM
APPELLANTS/PETITIONERS/ACCUSED NOS. 29, 30 & 51
1 JISHAD B
AGED 33 YEARS
S/O. BADARUDHEEN, MEB MANZIL, NAVAKKODE,
KODUVAYUR, PALAKKAD DISTRICT, PIN - 678501
2 ASHRAF @ ASHRAF MOULAVI
AGED 49 YEARS
S/O.KUNJAPPU MUSLIYAR, CHAPPANGATHODI HOUSE,
MARUTHUR POST, PATTAMBI, PALAKKAD DISTRICT,
PIN - 679303
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3 SIRAJUDHEEN
AGED 39 YEARS
S/O. ALAVI, NJARAKATTIL HOUSE, OMACHAPPUZHA,
KARINKAPPARA, TIRUR, MALAPPURAM DISTRICT,
PIN - 676101
BY ADVS.
E.A.HARIS
P.P.HARRIS
RESPONDENTS/RESPONDENTS/COMPLAINANT:
:
1 UNION OF INDIA
REPRESENTED BY SUPERINTENDENT OF POLICE,
NATIONAL INVESTIGATION AGENCY, KOCHI, PIN - 682020
2 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY, NIA KOCHI UNIT, KOCHI,
PIN - 682020
BY ADVS.
SREENATH S
SASTHAMANGALAM S. AJITHKUMAR (SR.), DSGI FOR NIA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.04.2025, ALONG WITH CRL.A.228/2025 & CRL.A.228/2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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"CR"
JUDGMENT
[CRL.A Nos.228/2025, 225/2025 & 242/2025]
Raja Vijayaraghavan, J.
These Criminal Appeals have been preferred under Section 21 of the National
Investigation Agency Act, 2008.
2. Crl. Appeal No. 225 of 2025 is preferred by the accused Nos. 25, 27, 31
and 32, Crl. Appeal No. 228 of 2025 is preferred by the accused No. 33 and Crl.
Appeal No. 242 of 2025 is preferred by the accused Nos. 29, 30 and 51 in S.C.No.
2/2023/NIA on the file of the Special Court for Trial of NIA Cases, Ernakulam.
3. In the above case, they, along with the rest of the accused, stand
indicted for having committed offences punishable under sections 120B, 34, 109,
115, 118, 119, 143, 144, 147, 148, 449, 153A, 341, 302, 201, 212 r/w.s. 149, 120B
r/w.s. 302 of IPC, Section 3(a)(b)(d) r/w. Section 7 of the Religious Institutions
(Prevention of Misuse) Act, 1988 and Sections 13, 16, 18, 18A, 18B, 20, 22C, 23, 38
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& 39 of Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) of the Arms
Act, 1959.
4. By the order passed by the learned Special Court, the applications for
bail preferred by the appellants were dismissed.
5. The brief facts of the case are as follows:
5.1. The Central Government received credible and actionable intelligence
indicating that the office bearers, members, and cadres of the Popular Front of India
(PFI)--a registered society--and its affiliated organisations in Kerala had conspired to
instigate communal violence and radicalise their cadres to commit terrorist acts in the
State of Kerala and other parts of the country.
5.2 The intelligence revealed that PFI members and office bearers based in
Kerala, many of whom had earlier s with the proscribed terrorist organisation SIMI
(Students Islamic Movement of India), maintained operational linkages with other
internationally proscribed terrorist organisations such as Lashkar-e-Taiba (LeT), the
Islamic State of Iraq and Syria (ISIS)/Daesh, and Al-Qaeida. Some members of the
PFI cadres were themselves members of these banned terrorist groups.
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5.3 It was revealed that the PFI had allegedly created an organised
network with the objective of recruiting vulnerable Muslim youth into proscribed
international terrorist organisations to facilitate the commission of terrorist acts.
Moreover, PFI and its members were reportedly engaged in activities prejudicial to
public order and harmony by inciting hatred between different religious communities
through incendiary speeches, publications, articles, and social media posts. Their
actions were aimed at disrupting public tranquillity, and evidence pointed to
organised movements intending to train participants in the use of criminal force
against individuals of other religions or groups--thereby instilling fear, terror, and a
sense of insecurity among members of other communities.
5.4 The PFI and its members were allegedly responsible for several violent
incidents and murders in Kerala, which created a sense of terror in the minds of the
general public. Additionally, it is alleged that PFI, its office bearers, and its members
were indulging in unlawful activities with the intent to foment disaffection against the
Indian State by provoking individuals, especially innocent members of the Muslim
community, to defy the Government and institutions established by law--thereby
undermining the sovereignty and integrity of India.
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5.5 Based on the above facts and the gravity of the allegations, the Central
Government formed the opinion that the activities of the Popular Front of India
attracted offences punishable under Sections 120B and 153A of the Indian Penal
Code, 1860, and Sections 13, 18, 18B, 38, and 39 of the Unlawful Activities
(Prevention) Act, 1967, which are scheduled offences under the National
Investigation Agency Act, 2008.
5.6. Being satisfied that the above acts had serious ramifications for national
security, the Ministry of Home Affairs, Government of India, CTCR Division, vide
Order No. 11011/82/2022-NIA dated 16.09.2022, directed the National Investigation
Agency (NIA) to take up the investigation. In compliance with the said direction, a
case was registered as RC-02/2022/NIA/KOC at the NIA Police Station, Kochi, on
19.09.2022 under the aforementioned provisions, and the First Information Report
(FIR) was submitted before the jurisdictional Court.
5.7. During the course of the investigation, it was revealed that Crime No.
318/2022 of Palakkad Town South Police Station, which involved the murder of one
Sreenivasan, a BJP activist, was a connected offence under Section 8 of the NIA Act.
In the said case, the Kerala Police had laid a final report arraying 44 persons as the
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accused and charged them for having committed offences punishable under Sections
120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w.
Section 149 of the Indian Penal Code and Section 3(a)(b)(d) r/w. Section 7 of the
Religious Institutions (Prevention of Misuse) Act, 1988. The case records in Crime No.
318 of 2022 of Palakkad Police Station were transferred to the Special Court.
5.8 Accordingly, the Government of India, Ministry of Home Affairs, vide
order dated 11011/82/2022/NIA, directed the NIA to investigate FIR No. 318/2022
dated 16.04.2022 of Palakkad Town South Police Station, Kerala, under the provisions
of the NIA Act, 2008.
5.9. It is alleged that the PFI has frontal organisations like Rehab India
Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC),
National Confederation of Human Rights Organization (NCHRO), National Women's
Front (NWF), Junior Front, Empower India Foundation and Rehab Foundation, in
addition to their political wing, Social Democratic Party of India (SDPI).
5.10. On 28.09.2022, the Government of India declared the Popular Front of
India and its affiliates/frontal organisations as an "Unlawful Association" under the
provisions of the Unlawful Activities (Prevention) Act, 1967.
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5.11. The prosecution alleges that the 1st accused, Popular Front of India,
its office bearers, leaders and members besides their affiliates, hatched a conspiracy
during the past few years inside and outside Kerala, with their agenda to overthrow
the democracy in India and to implement Islamic Rule in India by 2047, for which
they prepared structured stages of progression. In pursuance to their plans, they
carried out various activities including uniting Muslims under the flag of PFI, forming
alliances with certain groups, stockpiling weapons and explosives, etc. They also
intended to eliminate those who act against the interest of PFI and recruit enough
trained cadres and stockpile of arms to declare a new Constitution based on Islamic
Principles.
5.12. In pursuance to their larger conspiracy, PFI had established 3 Wings -
'Reporters Wing', 'Physical and Arms Training Wing/PE Wing' and 'Service Wing/Hit
teams'. Through their 'Reporters Wing' which is a quasi-intelligence division of the
PFI, it collected private and personal information of prominent personalities in the
society, and leaders of other communities, especially the Hindu Community, including
their day-to-day activities. The data is compiled at the PFI district level and
communicated to their State hierarchy. The details are regularly updated and utilised
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to "Target" the individuals as and when required by the terrorist gang. The PFI had
trained its cadres for the collection of such data and had stored them,and provided
the same to their assault teams in 'Service Wing' for attack as and when decided by
their leadership.
5.13. In further pursuance to their agenda, the PFI through their Arms
Training Wing, prepared master trainers to impart uniform physical and arms training
under a common syllabus with set course to their cadres in various stages under the
guise of yoga training programs, rescue and relief activities, martial arts and other
physical development activities. The PFI devised the program to filter the cadres
through various stages and gave arms and explosives training to selected cadres
through these stages. PFI used its multiple facilities and affiliated institutions,
including the institutions run in the name of 'Trusts', besides other places, to conduct
such training camps and secret meetings. The PFI used these trained cadres to
eliminate shortlisted targets based on the decisions of their leadership as and when
required. The PFI also used such selected cadres as executioners of the decisions of
their pseudo-court - "Darul Khada".
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5.14. The PFI, its office bearers and cadres had conspired to commit the
terrorist act by killing any targeted person of another religion/section of the society
to create terror in the minds of other communities and the public at large. In
furtherance to that, PFI leaders and cadres carried out intensive recce on members
of other religions, particularly the Hindu community and compiled the same for
targeting through their 'Service Wing/Hit teams'.
5.15. In murder cases involving PFI cadres, including the one in Crime No.
318 of 2022 of Palakkad Town South Police Station, none of the accused had any
personal enmity with the deceased. The victims have been selected solely because of
their leadership/membership in a particular community and were killed to create
terror in the society. Several persons were recced to become possible targets. The
PFI through such acts intended to disturb harmony among the society and to
terrorise people within the society with a view to creating a sense of fear and
insecurity in their minds. The PFI also intended to instill confidence among its cadres
by executing such acts. The plans so made were executed to prevent any defiance of
their command in future.
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5.16. In one such specific incident in pursuance to their larger conspiracy,
leaders and accused persons being members of Popular Front of India (PFI)
conducted conspiracy at various places in Palakkad on 15th and 16th of April 2022,
conducted reconnaissance of residences belonging to several leaders from Hindu
community who appear in their target-list and chose and decided to eliminate one
prominent Hindu leader named S. K. Srinivasan of Palakkad. They, in furtherance to
the conspiracy, set out to commit terrorist act on 16.04.2022 for which 5 accused
persons (A-17 to A-21) came on three two-wheelers, three of whom criminally
trespassed into SKS Autos situated at Melamuri, Pallippuram, Palakkad run by S. K.
Sreenivasan, and inflicted grievous injuries on Sreenivasan and killed him by hacking
his head and other parts of his body with choppers which the assailants were
carrying with the sole intention and purpose to murder him brutally, so as to create
terror in the mind of other communities and public at large. The above act of murder
is in furtherance of the larger conspiracy of the 1st accused, to create terror.
5.17 The investigation revealed that the leaders of PFI had justified the
activities of cadres in support of the proscribed terrorist organisation ISIS and were
found with the possession of ISIS propaganda videos and documents for
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propagation. The PFI, its leaders and cadres have incited the people by provocative
speeches and slogans to cause communal disharmony.
5.18. On completion of investigation against A1 to A14, A16 to A19, A21 to
A26, A29 to A40, and A42 to A63 and A66, final report has been filed against them
(59 accused) on 17.03.2023, for offence under sections 120B, 34, 109, 115, 118,
119, 143, 144, 147, 148, 449, 153A, 341, 302, 201, 212 r/w.s. 149, 120B r/w.
Section 302 of IPC, Section 3(a)(b)(d) r/w. Section 7 of the Religious Institutions
(Prevention of Misuse) Act, 1988 and Sections 13, 16, 18, 18A, 18B, 20, 22C, 23, 38
& 39 of Unlawful Activities (Prevention) Act, 1967 and Section 25 (1) (a) of Arms Act,
1959.
6. The case of the appellants:
6.1 According to the appellants, the common case against them in the final
report is that they attended a conspiracy and conducted recce along with other
accused and took a prominent part in facilitating the murder of Sreenivasan. They
raise the following contentions to assail the order passed by the learned Special
Court and to persuade this Court to set them at liberty by granting bail to them.
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a) In Crime No. 318/2022, the investigation was conducted by the Kerala Police,
and they came to the conclusion that the murder was committed in retaliation
to the murder of a PFI Activist by name 'Subair'. In other words, it was a case
of political murder. However, when the NIA took up the investigation and laid
the final report, they came up with an allegation that there was a larger
conspiracy to commit the murder of Hindu leaders. A communal colour is being
given to the whole incident to invite the provisions of the Unlawful Activities
(Prevention) Act.
b) A proper evaluation of the records will not reveal that the allegations attract the
provisions of Section 15 of the UAP Act.
c) The records collected by the NIA would not reveal that any of the appellants
have acted to establish Islamic Rule in India within the year 2047.
d) The PFI was categorised as an unlawful organisation in the month of
September 2022 and even if the appellants were members of the said
organisation prior to the imposition of the ban, they cannot be roped in under
UAP Act. The mere fact that there are some photographs showing that some of
the appellants were in PFI uniform prior to the ban cannot be taken as an
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incriminating circumstance against them.
e) The invocation of Section 8 of the UAP Act with a view to make Crime No. 318
of 2022 of the Palakkad Town South Police Station, a connected case to the
case registered by the NIA, is illegal.
f) The final report filed by the NIA includes more than 1600 documents, 900
witnesses, 52 protected witnesses, 670 material objects and ten terabytes of
FSL reports. There is no likelihood of the case concluding in the near future as
the proceedings have been stayed by the Apex Court in SLP (Crl) No.
3658/2024, interdicting the framing of the charge. In view of the law laid down
in Union of India v. K.A.Najeeb1, Javed Gulam Nabi Shaikh v. State of
Maharashtra and Another2, Athar Parwez v. Union of India3, Jalaluddin
Khan v. Union of India4, some of the appellants who have been in custody
for more than two years and four months are entitled to bail.
g) The details of the period during which the appellants have been in custody are
as under:
[(2021) 3 SCC 713]
[(2024) SCC OnLine SC 1693]
[(2024 SCC OnLine SC 3762]
[2024 SCC OnLine SC 1945]
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Accused No. 29 (Jishad)- from 10.5.2022 onwards
Accused No. 30 (Ashraf @ Ashraf Moulavi) from 24.5.2022 onwards
Accused No. 51 (Sirajudheen) from 16.09.2022 onwards
Accused No. 33 (Nassar) from 14.05.2022 onwards
Accused No. 25(Jamsheer) from 31.10.22 onwards
Accused No. 27 (Abdul Basith Ali) from 26.04.2022 onwards
Accused No. 31 (Mohammed Shefeek) from 13.12.2022 onwards
Accused No.32 (Ashraf K.) from 07.11.2022 onwards.
The above dates reveal that the accused have been in custody, ranging
from two years and four months in the case of Accused No. 32 and 2 years
and 11 months in the case of Accused No. 27.
h) The allegation against the appellants is that they were part of the larger
conspiracy and underwent physical and arms training imparted by PFI at
Malabar House. It is also alleged that some of them had harboured the accused
and provided vehicles for conducting recce. However, no credible materials have
been collected to substantiate the above allegations. The bail applications filed
by the co-accused were considered by a coordinate bench of this Court and
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persons facing identical allegations have been granted bail.
i) Accused No.31 (Mohammed Shefeek K.) has not been arrayed as an accused in
Crime No. 318/2022 of the Palakkad Town South Police Station.
6.2. The respondents filed objections clearly narrating the role played by
each appellant. According to them, clinching materials have been collected to
substantiate that the appellants and their associates, being members of an Unlawful
Association like the PFI, have conspired to establish Islamic Rule in India under a
hidden agenda. The records collected also reveal that they were members of a
terrorist gang and they were preparing themselves for the commission of a terrorist
act by imparting/undergoing arms training, collecting the details of targets and also
committing a terrorist act of murder of Sreenivasan on 16.04.2022, as part of a
larger conspiracy to instil fear on Hindu community and to establish Islamic Rule in
India. We shall deal with the objections while considering whether the allegations
against the applicant can be held to be prima facie true at the time of consideration
of the bail application.
6.3. Before we proceed to analyse the rival submissions, it is apposite to
restate the settled legal position about matters to be considered for deciding an
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application for bail. They are:
(i) whether there is any prima facie reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail. [See: State
of U.P. v. Amarmani Tripathi5].
7. The implications of 43D(5) of the Unlawful Activities
(Prevention) Act, 1967:
7.1. Section 43-D of the 1967 Act, inserted by Act 35 of 2008 w.e.f.
31-12-2008 provides for a modified application of certain offences punishable under
Chapters IV and VI of the Act. It would be apposite to refer to Sub-sections (5), (6)
(2005) 8 SCC 21
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and (7) of Section 43-D.
"43-D. Modified application of certain provisions of the Code.--
(1) xxxxxx xxxxx xxx
(2) xxxxxx xxxxx xxx
(3) xxxxxx xxxxx xxx
(4) xxxxxx xxxxx xxx
(5) Notwithstanding anything contained in the Code, no person accused of an
offence punishable under Chapters IV and VI of this Act shall, if in custody,
be released on bail or on his own bond unless the Public Prosecutor has
been given an opportunity of being heard on the application for such
release:
Provided that such accused person shall not be released on bail or on his own
bond if the Court, on a perusal of the case diary or the report made under
Section 173 of the Code is of the opinion that there are reasonable grounds for
believing that the accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section (5) is in addition
to the restrictions under the Code or any other law for the time being in
force on granting of bail.
(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall
be granted to a person accused of an offence punishable under this Act, if
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he is not an Indian citizen and has entered the country unauthorisedly or
illegally except in very exceptional circumstances and for reasons to be
recorded in writing."
7.2. A bare reading of sub-section (5) of Section 43-D shows that apart
from the fact that subsection (5) bars a Special Court from releasing an accused on
bail without affording the Public Prosecutor an opportunity of being heard on the
application seeking release of an accused on bail, the proviso to sub-section (5) of
Section 43-D puts a complete embargo on the powers of the Special Court to release
an accused on bail. It lays down that if the Court, "on perusal of the case diary or
the report made under Section 173 of the Code of Criminal Procedure", is of the
opinion that there are reasonable grounds for believing that the accusation, against
such person, as regards commission of offence or offences under Chapter IV and/or
Chapter VI of the UAP Act is prima facie true, such accused person shall not be
released on bail or on his own bond. (See Gurwinder Singh v. State of
Punjab6).
7.3. In Gurwinder (supra), the Apex Court followed and reiterated the
observations in NIA v. Zahoor Ahmad Shah Watali7, in which case elaborate
[(2024) 5 SCC 403]
[(2019) 5 SCC 1]
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guidelines on the approach that courts must partake in, in their application of the bail
limitations under the UAP Act were laid down. Those guidelines are the following:
32.1. Meaning of "prima facie true" :
On the face of it, the materials must show the complicity of the
accused in the commission of the offence. The materials/evidence must
be good and sufficient to establish a given fact or chain of facts
constituting the stated offence, unless rebutted or contradicted by other
evidence.
32.2. Degree of satisfaction at pre charge-sheet, post
charge-sheet and post-charges -- compared :
"26. ... 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 173CrPC), do not make out
reasonable grounds for believing that the accusation against him is prima
facie true. A similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after the filing of the first report
made under Section 173 of the Code"
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32.3. Reasoning, necessary but no detailed evaluation of
evidence :
"24. ... 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."
32.4. Record a finding on broad probabilities, not based on
proof beyond doubt
"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."
32.5. Duration of the limitation under Section 43-D(5)
"26. ... 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."
32.6. Material on record must be analysed as a "whole"; no
piecemeal analysis
"27. ... 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 analysing individual pieces of
evidence or circumstance."
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32.7. Contents of documents to be presumed as true :
"27. ... The Court must look at the contents of the document and
take such document into account as it is."
32.8. Admissibility of documents relied upon by prosecution
cannot be questioned :
The materials/evidence collected by the investigation agency in
support of the accusation against the accused in the first information
report must prevail until contradicted and overcome or disproved by other
evidence.... In any case, the question of discarding the document at this
stage, on the ground of being inadmissible in evidence, is not permissible.
7.4. In Thwaha Fasal v. Union of India8, the Apex Court dealt with the
scope of Section 43-D(5) UAPA. It was held as follows in para 26 of the judgment:
26. Therefore, while deciding a bail petition filed by an accused against
whom offences under Chapters IV and VI of the 1967 Act have been
alleged, the court has to consider whether there are reasonable grounds
for believing that the accusation against the accused is prima facie true. If
the court is satisfied after examining the material on record that there are
no reasonable grounds for believing that the accusation against the
accused is prima facie true, then the accused is entitled to bail. Thus, the
scope of inquiry is to decide whether prima facie material is available
[(2022) 14 SCC 766]
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against the accused of commission of the offences alleged under Chapters
IV and VI. The grounds for believing that the accusation against the
accused is prima facie true must be reasonable grounds. However, the
court while examining the issue of prima facie case as required by
sub-section (5) of Section 43-D is not expected to hold a mini trial. The
court is not supposed to examine the merits and demerits of the
evidence. If a charge-sheet is already filed, the court has to examine the
material forming a part of charge-sheet for deciding the issue whether
there are reasonable grounds for believing that the accusation against
such a person is prima facie true. While doing so, the court has to take
the material in the charge-sheet as it is.
8. Long incarceration and delay in trial whether a
consideration for grant of bail.
8.1. In another line of decisions of the Apex Court, while considering
applications for bail involving cases under the TADA Act, PMLA, and UAPA, has
explained that the Constitutional Courts shall have the power to grant bail taking
note of the long period of incarceration and the unlikelihood of the trial being
completed anytime soon. It was held that such powers are traceable to Article 21 of
the Constitution, notwithstanding the statutory embargo created by Section 43-D(5)
of the UAPA.
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8.2. In Shaheen Welfare Assn. v. Union of India9, the Apex Court
taking note of the long incarceration suffered by the accused, granted bail to the
accused by categorising them into different groups based on their involvement and
role and ordered their release if the conditions are satisfied. Reference was also
made to the observations in Kartar Singh v. State of Punjab10, wherein it was
held that no one can justify the gross delay in disposal of cases when undertrials
perforce remain in jail, giving rise to possible situations that may justify invocation of
Article 21. It was held that there is a need to adopt a pragmatic and constitutionally
sensitive approach in situations where an undertrial is deprived of personal liberty for
an extended period and there is no reasonable prospect of the trial concluding within
a foreseeable timeframe. In paragraph 14 of the said judgment, the Supreme Court
observed that where undertrials are not directly accused of engaging in terrorist acts,
but are instead booked under Sections 120B or 147 of the Indian Penal Code, or
merely found in possession of allegedly incriminating material, a lenient view may be
taken taking note of the long period of incarceration that has been undergone. The
Court further held that in such cases, release may be considered if the undertrials
have been in custody for periods of three years and two years, respectively.
[(1996) 2 SCC 616]
[ (1994) 3 SCC 569]
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8.3. In Union of India v. K.A. Najeeb (supra), the Apex Court has
clarified that the liberty guaranteed by Part III of the Constitution would cover within
its protective ambit not only due procedure and fairness but also access to justice
and a speedy trial. Reliance was placed on the judgment in Supreme Court Legal
Aid Committee (Representing Undertrial Prisoners) v. Union of India11,
wherein it was held that undertrials cannot indefinitely be detained pending trial.
Once it is obvious that a timely trial would not be possible and the accused has
suffered incarceration for a significant period of time, the courts would ordinarily be
obligated to enlarge them on bail. The Apex Court went on to observe that the
presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on grounds of violation of
Part III of the Constitution. Indeed, both the restrictions under a statute as well as
the powers exercisable under constitutional jurisdiction can be well harmonised.
Whereas at the commencement of proceedings, the courts are expected to
appreciate the legislative policy against the 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
[(1994) 6 SCC 731]
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substantial part of the prescribed sentence. Such an approach would safeguard
against the possibility of provisions like Section 43-D(5) of the UAPA being used as
the sole metric for denial of bail or for wholesale breach of the constitutional right to
a speedy trial. (emphasis supplied)
8.4. In Javed Gulam Nabi Shaikh (supra), the Apex Court reiterated that
the presence of statutory restrictions like Section 43D(5) or Section 37 of the NDPS
Act, per se, do not oust the ability of the constitutional courts to grant bail on
grounds of violation of Part III of the Constitution. In the said case, the accused had
been undergoing incarceration for about 4 years. The following pertinent
observations were made:
16. Criminals are not born but made. The human potential in everyone is
good and so, never write off any criminal as beyond redemption. This
humanist fundamental is often missed when dealing with delinquents,
juvenile and adult. Indeed, every saint has a past and every sinner a
future. When a crime is committed, a variety of factors is responsible for
making the offender commit the crime. Those factors may be social and
economic, may be, the result of value erosion or parental neglect; may
be, because of the stress of circumstances, or the manifestation of
temptations in a milieu of affluence contrasted with indigence or other
privations.
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17. If the State or any prosecuting agency including the court concerned
has no wherewithal to provide or protect the fundamental right of an
accused to have a speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting agency should not
oppose the plea for bail on the ground that the crime committed is
serious. Article 21 of the Constitution applies irrespective of the nature of
the crime.
18. We may hasten to add that the petitioner is still an accused; not a
convict. The over-arching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be brushed
aside lightly, howsoever stringent the penal law may be.
19. We are convinced that the manner in which the prosecuting agency as
well as the Court have proceeded, the right of the accused to have a
speedy trial could be said to have been infringed thereby violating Article
21 of the Constitution.
8.5. In Athar Parwez (supra), the facts were that Athar along with the
co-accused were arrested on the ground that he was an active member of the PFI
and that they were planning to cause disturbance during the proposed visit of the
Prime Minister to Patna. During the raid that was carried out certain recoveries were
carried out, prominent amongst them was a document titled "India 2047 towards
rule of Islam in India. His application for bail having been dismissed, he approached
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the Apex Court seeking bail. One of the contentions was prolonged incarceration
without trial. In the said case, the accused had been undergoing incarceration for 2
Years and 4 months at the time of consideration of the Appeal by the Apex Court.
While allowing the application on the ground of prolonged incarceration, the Apex
Court observed as under:
32. The Appellant was arrested on 12.07.2022. He has
undergone custody for more than two years and four months.
Chargesheet was filed on 07.01.2023 but till date charges have
not been framed which is an admitted position. There are 40
accused and 354 witnesses cited by the prosecution to be
examined. There can be no doubt that the trial is not likely to
complete soon, and as has been laid down by various
judgments of this Court as has been referred to above, the
Appellant cannot be allowed to languish in jail indefinitely and
that too without a trial. If such an approach is allowed Article
21 of the Constitution of India would stand violated. The ratio
as laid down by this Court in Union of India v. K.A. Najeeb
(supra) as also the other judgments in Javed Ghulam Nabi
Shaikh v. State of Maharashtra (supra) and Thwaha Fasal v.
Union of India (supra) would be applicable to this case and
would squarely apply entitling the Appellant for grant of bail.
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8.6. In the light of these guiding principles, we shall now proceed to decide
whether the appellants have made a case for the grant of bail for which purpose we
shall briefly detail the charge levelled against the particular accused and the
objections raised by the respondent. We shall also consider the nature of accusations
against the respective appellants in light of the principles laid down in Shaheen
Welfare Assn. (supra) and Athar Parwez (supra) and examine whether the period
of incarceration undergone by them and the likelihood of the trial being delayed will
entitle them to bail.
9. Allegations and materials against the accused in general:
As against all the appellants, some allegations are common. They are all part
of a larger conspiracy to overthrow the democracy in India and to establish Islamic
Rule as per Agenda India 2047. The statements of protected witnesses 2, 14, 16 are
relied on to substantiate the same. Voice clips, which were recovered from the
mobile phone of Mohammed Mubarak (A15), are relied upon to prove the conspiracy.
Reliance is also placed on the statements of protected witnesses to substantiate that
Arms training was being imparted and attended by PFI cadre and leaders at various
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training centres of PFI. The hit list of 197 persons seized from the custody of
Muhammed Sadik (A17 now approver) is another material relied on by the
prosecution. Statement of Mohammed Shajid (A37 now approver), to prove that the
assailants attended Arms training at Falah Mosque and Valluvanad House at
Palakkad. Route Maps of a temple at Edappal, photo of main witness in Crime No.
618 of 2017 seized from the possession of Sirajudheen (A51). Protected Document
Nos. 1 and 2 and Document Nos. 40 to 43, containing a hit list of various persons.
10. Allegations and Role of the concerned appellant:
10.1 Crl. A. No. 228/ 2025
Appellant - Nassar (Accused No. 33 in charge)
Date of arrest: 14.05.2022
(Period of pre-trial detention undergone - 2 Years 10 Months and 17
Days)
Charge:
That, the accused Nassar @ Laden Nassar, being an active cadre of PFI,
knowingly and intentionally became a member of terrorist gang formed by PFI
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to commit terrorist act, as a part of larger conspiracy hatched by PFI and its
office bearers and cadres since last few years to enact their "India 2047"
agenda of establishing Islamic Rule in India. Being a member of terrorist
gang, he attended conspiracy meeting held at his Curtain Shop at Pattambi on
15th of April 2022 for committing terrorist act by murdering any available
Hindu Leader with the intention of creating terror in the minds of the Hindu
community and among public at large which resulted in the murder of
Srinivasan on 16.04.2022 by PFI cadres. He provided his Red Swift car with
Regn No. KL-55-D-4700 to Abdul Rasheed (A-28) for recce and also for
committing terrorist act of murdering Srinivasan. He along with Ansar (A-25),
Abdul Rasheed (A-28), Ashraf Maulavi (A-34) and Ali (A-43) conspired at his
shop for destroying of evidence and in furtherance to the same, he concealed
the vehicle used for the offence and mobile phone of A-28. He also committed
acts prejudicial to the maintenance of harmony between different religious
groups and has disturbed the public tranquillity in the State at large.
Contentions of the appellant:
a) The appellant is innocent of the allegations.
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b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
c) There is no material to substantiate that the appellant was a member
of the conspiracy to overthrow the democracy in India and to
implement "Islamic Rule by 2047". The mere fact that he is alleged
to have taken part in the conspiracy to murder Srinivasan will not
show that he had participated in the larger conspiracy and had
connections with the main offence alleged in R.C.No.2 of 2022.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047" - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The mere fact that in some of the photographs, the appellant was
found wearing PFI uniform cannot be used to connect him with the
conspiracy. Crime No. 318 of 2022 occurred on 16.04.2022, whereas
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PFI was branded an unlawful only during September 2022. The mere
fact that the appellant was having membership in the said
Organisation prior to his ban will not constitute any offence.
g) The appellant has been in custody for more than 2 years and 10
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) Nassar (A33) is part of a larger conspiracy to overthrow the
democracy in India and to establish Islamic Rule as per Agenda India
2047.
b) He attended a conspiracy meeting held in his curtain shop at Pattambi
on 15.04.2022. The CDR shows his presence.
c) He provided his KL-55 D/4700 Red Swift car for conducting recce of
targets and also for committing the terrorist act of murdering
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Srinivasan.
d) Conspired with co-accused at his shop for destroying the evidence by
concealing the red Swift car and the mobile phone of A28 (Abdul
Rasheed).
e) While in custody, the appellant assaulted two police officers in jail and
a crime was registered.
Entitlement for bail of Nassar (A33)
a) As is evident from the materials on record, the appellant has
undergone pre-trial detention for more than two years and ten
months. The trial proceedings remain stayed pursuant to an order
passed by the Hon'ble Supreme Court. The final report submitted by
the National Investigation Agency (NIA) is voluminous, comprising
over 1600 documents, 900 witnesses, 52 protected witnesses, 670
material objects, and ten terabytes of forensic science laboratory (FSL)
reports. Given the magnitude of the case of the prosecution and the
stay on proceedings issued in SLP (Crl.) No. 3658/2024, which
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specifically interdicts the framing of charges, there is no foreseeable
possibility of the trial commencing or concluding in the near future.
Even if proceedings were to resume, the sheer number of witnesses
and extensive volume of documentary and material evidence clearly
indicate that the trial would remain pending for several years.
b) As regards the allegation of a conspiracy to overthrow the democratic
system of governance and establish Islamic rule, it is pertinent to note
that there is no direct evidence linking the appellant to this conspiracy.
He has been implicated solely on the basis of certain photographs
allegedly depicting him in the uniform of the Popular Front of India
(PFI). However, those photographs date back to a period prior to
September 2022, the date on which the Central Government declared
PFI an Unlawful Association under the Unlawful Activities (Prevention)
Act. With respect to the murder of Srinivasan, the allegation against
the appellant is that he was a co-conspirator and had allegedly
provided his vehicle for conducting reconnaissance. In this context,
the principles laid down by the Hon'ble Supreme Court in Shaheen
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Welfare Assn. (supra) would apply. The Apex Court stressed the
need to adopt a pragmatic and constitutionally sensitive approach in
situations where an undertrial is deprived of personal liberty for an
extended period and there is no reasonable prospect of the trial
concluding within a foreseeable timeframe. In paragraph 14 of the
said judgment, the Supreme Court observed that where undertrials
are not directly accused of engaging in terrorist acts, but are instead
booked under Sections 120B or 147 of the Indian Penal Code, or
merely found in possession of allegedly incriminating material, a
lenient view may be taken. The Court further held that in such cases,
release may be considered if the undertrials have been in custody for
periods of three years and two years, respectively.
c) Further the Hon'ble Supreme Court in K.A. Najeeb (supra) and Athar
Parwez (supra), wherein it was held that the existence of statutory
restrictions such as Section 43-D(5) of the UAPA does not, by itself,
bar constitutional courts from granting bail, especially when the
continued detention amounts to a violation of the rights guaranteed
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under Part III of the Constitution of India.
d) It is also relevant to note that a Coordinate Bench of this Court, in
Criminal Appeal No. 139 of 2024 and connected matters, has granted
bail to A38, A40, A41, A45, A46, A56 and A57 in Crl.A.No. 1141 of
2023 and A42, A43 in Crl. A.No. 619 of 2024 and A53 in Crl.A.No.
628 of 2024. They face similar charges as those of A33.
10.2 Crl. A. No. 225/ 2025 -
i) 1st Appellant - Jamsheer H (Accused No. 25 in charge)
Date of arrest: 31.10.2022
(Period of pre-trial detention undergone - 2 Years 4 Months and
27 Days)
Charge:
That the accused Jamsheer H (A-25) being a Division President of PFI,
Palakkad Division, knowingly and intentionally became a member of terrorist
gang formed by PFI to commit terrorist act as a part of larger conspiracy
hatched by PFI and its office bearers and cadres since last few years to enact
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their "India 2047" agenda of establishing Islamic Rule in India. Being a
member of terrorist gang, in furtherance to the larger conspiracy, he attended
conspiracy meetings at Palakkad on 15th and 16th of April 2022 for
committing terrorist act by murdering any available Hindu Leader with the
intention of creating terror in the minds of the Hindu community and among
public at large which resulted in the murder of Srinivasan on 16.04.2022 by
PFI cadres. He provided vehicle - Deo Scooter bearing Regn No.
KL-09-AL-1023 to Mohammed Bilal (A-24) for conducting recce of targets to
eliminate on 15.4.2022 and for committing terrorist act of murdering
Srinivasan on 16.4.2022. He also arranged weapons for commission of
terrorist acts. He also concealed evidence in the case. He committed acts
prejudicial to the maintenance of harmony between different religious groups
and has disturbed the public tranquillity in the State at large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
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terrorist act.
c) There is no material to substantiate that the appellant was a member
of the conspiracy to overthrow the democracy in India and to
implement Islamic rule by 2047. Even otherwise, the mere fact that
he is alleged to have taken part in the conspiracy to murder
Sreenivasan will not show that he had participated in the larger
conspiracy and had connections with the main offence alleged in
R.C.No.2 of 2022.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) There is no allegation that the appellant had attended training in the
final report. No weapons/arms were recovered from Falah Masjid.
g) The mere fact that in some of the photographs, the appellant was
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found wearing PFI uniform cannot be used to connect him with the
conspiracy. Crime No. 318 of 2022 occurred on 16.04.2022, whereas
PFI was branded an Unlawful Association only during September
2022. The mere fact that the appellant was having membership in the
said Organisation prior to his ban will not constitute any offence.
h) The appellant has been in custody for more than 2 years and 4
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) Jamsheer (A25) is the Palakkad Division President of PFI. PFI related
books were seized as per D361 Mahazar. Photograph of the appellant
in a notice of the PFI was found in the mobile phone of Akbar Ali
(A45). There is also a video of the appellant participating in a protest
found in the mobile phone of Sadam Hussein (A41).
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b) Jamsheer (A25) is part of a larger conspiracy to overthrow the
democracy in India and to establish Islamic Rule as per Agenda India
2047.
c) He attended Arms Training conducted by PFI at Falah Masjid as
preparation for conducting a terrorist act. CW835 stated that A25
imparted Arms training to A17 and others.
d) Jamsheer instructed Rishil (A32, now an approver) and Abdul Basit
(A27) to conduct recce.
e) A25 attended a conspiracy meeting held near Khabaristhan on
15.04.2022 for committing the terrorist act.
f) Arranged weapons and carried the same in his scooter bearing Reg.
No. KL-09/AL-1023 and kept the weapons in the goods auto rickshaw
of Abdul Rahman @ Adru (A17), one of the assailants.
g) Provided his Deo Scooter with Reg. No. KL-09/AL-1023 to Mohammed
Bilal (A22) for conducting recce and to locate the targets.
h) Attended conspiracy meeting held at Palakkad on 16.04.2022 for
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committing the terrorist act of murder of Sreenivasan on 16.04.2022.
The intention was to create terror in the mind of Hindu community
and the public at large.
i) With a view to destroying the evidence, A25 concealed his mobile
phone.
Entitlement for bail of Jamsheer (A25)
a) As is discernible from the materials, the appellant has undergone
pre-trial detention of more than 2 years and 4 months. The trial
proceedings have been stayed by the order passed by the Apex Court.
Even if the trial commences, the large number of witnesses of about
1000 and a huge number of exhibits and material objects would
necessarily mean that the trial would be delayed for years. Insofar as
the conspiracy to overthrow the democracy in India and to implement
Islamic rule, there is no direct evidence against the appellant. Insofar
as the murder of Sreenivasan is concerned, the role attributed to the
appellant is that he was a conspirator and that he had provided his
scooter for conducting recce. In view of the observations and
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principles in Shaheen Welfare Assn. (supra), a pragmatic approach
has to be adopted in cases of deprivation of personal liberty without
the prospect of trial being concluded within a reasonable time. As
held in paragraph No. 14 of the judgment, undertrials who are roped
in not because of any terrorist activity but by virtue of Section 120B or
147 of the IPC and those undertrials who were found possessing
incriminating articles, a lenient view can be taken. The Apex Court had
observed that cases of undertrials falling in the above categories can
be dealt with leniently and can be released if they have been in jail for
three years and two years respectively. We also note the
pronouncement of the Apex Court in K.A. Najeeb (supra) and Athar
Parwez (supra) wherein it was held that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does not oust the
ability of the constitutional courts to grant bail on grounds of violation
of Part III of the Constitution of India. Furthermore, we find that the
Coordinate Bench of this Court in Crl. A No 139 of 2024 and connected
cases had granted bail to the accused against whom the allegations
were identical.
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(ii) 2nd Appellant - Abdul Basith Ali (Accused No.27 in charge)
Date of arrest: 26.04.2022
(Period of pre-trial detention undergone - 2 Years 11 Months and 1
day.)
Charge:
That, the accused Abdul Basith Ali (A-27) being a member and
Reporter' of PFI in Palakkad District, knowingly and intentionally became a
member of terrorist gang formed by PFI to commit terrorist act as a part of
larger conspiracy hatched by PFI and its office bearers and cadres since last
few years to enact their "India 2047 agenda of establishing Islamic Rule in
India. Being a member of terrorist gang, in furtherance to the larger
conspiracy, he collected the details of various Hindu leaders whom PFI listed
as possible targets to eliminate, attended conspiracy meetings held at
Palakkad on 15th and 16th of April 2022 for committing terrorist act by
murdering any available Hindu Leader with the intention of creating terror in
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the minds of the Hindu community and among public at large which resulted
in the murder of Srinivasan on 16.04.2022 by PFI cadres. In furtherance to the
conspiracy, he along with Rishil (A-32) conducted recce on 15.4.2022 by using
the Motorcycle of Rishil (A-32) bearing Regn. No. KL-09-M-4967, for finding
the targets including victim Srinivasan to eliminate for the purpose of
committing terrorist act. On 16.4.2022, he conducted the recce at Melamuri
and confirmed the availability of Srinivasan, again went to Melamuri with
Muhammed Mansoor (A-23) and had shown the shop and Srinivasan to
Mohammed Mansoor (A-23). As located and shown by him, Mohammed
Mansoor (A-23) along with other assailants, reached the Scene of Crime and
committed terrorist act by killing Srinivasan. He also committed acts prejudicial
to the maintenance of harmony between different religious groups and has
disturbed the public tranquillity in the State at large.
Contentions of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 50 ::
c) The allegation against A27 is that he had attended the conspiracy
meeting held on 15.04.2022 and 16.04.2022 and conducted recce with
A28 on his bike. Mere movements on the bike and presence at
various places will not amount to conducting recce. There is no
material to substantiate that he was part of a larger conspiracy to
overthrow the democracy in India.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) There is no allegation that the appellant had attended training in the
final report. No weapons/arms were recovered from Falah Masjid.
g) The appellant has been in custody for more than 2 years and 11
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 51 ::
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A27 is a member of the Reporter Wing of the PFI in Palakkad District.
b) A27 is part of a larger conspiracy to overthrow the democracy in India
and to establish Islamic Rule as per Agenda India 2047.
c) He attended Arms Training conducted by PFI at Falah Masjid as
preparatory for conducting a terrorist act. Protected Witness 17
stated that A27 also attended Arms Training along with the assailants.
d) A27 collected personal details of the persons belonging to other
communities for making them as possible targets. D58 and 59 are list
of targeted persons maintained by A27 and the same was seized from
his house vide D56 seizure mahazar.
e) Conducted recce of short-listed targets along with Rishil (A32 now an
approver) on 15.04.2022 in the bike of A28.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 52 ::
f) Attended conspiracy meetings held at Khabaristan at Palakkad on
15.04.2022.
g) Attended conspiracy meeting held at Palakkad on 16.04.2022 for
committing terrorist act of murder of Srinivasan on 16.04.2022. The
intention was to create terror in the minds of Hindu community and
the public at large.
Entitlement for bail of Abdul Basith Ali (A27)
a) As is discernible from the materials, the appellant has undergone
pre-trial detention of more than 2 years and 11 months. The trial
proceedings have been stayed by the order passed by the Apex Court.
Even if the trial commences, the large number of witnesses of about
1000 and a huge number of exhibits and material objects would
necessarily mean that the trial would be delayed for years. Insofar as
the conspiracy to overthrow the democracy in India and to implement
Islamic rule, there is no direct evidence against the appellant. He has
been roped in on the ground that he is a member of the reporter wing
and that he maintained a list of targets. He is also alleged to have
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 53 ::
conducted recce of targets with A28, who has turned approver. In
view of the observations and principles in Shaheen Welfare Assn.
(supra), a pragmatic approach has to be adopted in cases of
deprivation of personal liberty without the prospect of trial being
concluded within a reasonable time. As held in paragraph No. 14 of
the judgment, undertrials who are roped in not because of any
terrorist activity but by virtue of Section 120B or 147 of the IPC and
those undertrials who were found possessing incriminating articles, a
lenient view can be taken. The Apex Court had observed that cases of
undertrials falling in the above categories can be dealt with leniently
and can be released if they have been in jail for three years and two
years respectively. We also note the pronouncement of the Apex
Court in K.A. Najeeb (supra) and Athar Parwez (supra) wherein it
was held that the presence of statutory restrictions like Section
43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
the Constitution of India.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 54 ::
(iii) 3rd Appellant - Mohammad Shefeek K (Accused No.31 in
charge)
Date of arrest: 13.12.2022
(Period of pre-trial detention undergone - 2 Years 3 Months and 14
Days)
Charge:
That accused Mohammed Shefeek K (A-31) being a member of
'Reporter Wing' of PFI at Chadanamkurissi Area, knowingly and intentionally
became a member of terrorist gang formed by PFI to commit terrorist act
as a part of larger conspiracy hatched by PFI and its office bearers and
cadres since last few years to enact their "India 2047" agenda of
establishing Islamic Rule in India. Being a member of terrorist gang, he
attended conspiracy meeting held at Palakkad on 16th of April 2022 for
committing terrorist act by murdering any available Hindu Leader with the
intention of creating terror in the minds of the Hindu community and
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 55 ::
among public at large which resulted in the murder of Srinivasan on
16.04.2022 by PFI cadres. He along with Jishad (A-33) conducted recce on
16th April 2022, by motorcycle bearing Regn No. KL-49 E-9433, arranged by
Jishad (A-33) to locate the targets for the commission of terrorist act. He
also committed acts prejudicial to the maintenance of harmony between
different religious groups and has disturbed the public tranquillity in the
State at large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
c) The allegation against A31 is that he had attended the conspiracy
meeting held on 16.04.2022 and conducted recce with A29 in a bike
arranged by A29. Mere movements on the bike and presence at
various places will not amount to conducting recce. There is no
material to substantiate that he was part of a larger conspiracy to
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 56 ::
overthrow the democracy in India.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The appellant has been in custody for more than 2 years and 3
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A31 is a member of the Reporter Wing of the PFI in the
Chandanamkurissi area in Palakkad District. Books and other
magazines seized from the house on the statements of witnesses
revealed that he is a member of the PFI.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 57 ::
b) A31 is part of a larger conspiracy to overthrow the democracy in India
and to establish Islamic Rule as per Agenda India 2047.
c) He conducted recce on 16.04.2022 along with A29 in a bike possessed
by him to locate targets for committing the terrorist act.
d) Attended conspiracy meeting held at Palakkad on 16.04.2022 for
committing terrorist act of murder of Srinivasan on 16.04.2022. The
intention was to create terror in the minds of Hindu community and
the public at large.
Entitlement for bail of Mohammed Shefeek (A31)
a) As is discernible from the materials, the appellant has undergone
pre-trial detention of more than 2 years and 3 months. The trial
proceedings have been stayed by the order passed by the Apex Court.
Even if the trial commences, the large number of witnesses of about
1000 and a huge number of exhibits and material objects would
necessarily mean that the trial would be delayed for years. Insofar as
the conspiracy to overthrow the democracy in India and to implement
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 58 ::
Islamic rule, there is no direct evidence against the appellant. He has
been roped in on the ground that he is a member of the Reporter
wing and he is alleged to have conducted recce of targets with A29. In
view of the observations and principles in Shaheen Welfare Assn.
(supra), a pragmatic approach has to be adopted in cases of
deprivation of personal liberty without the prospect of trial being
concluded within a reasonable time. As held in paragraph No. 14 of
the judgment, undertrials who are roped in not because of any
terrorist activity but by virtue of Section 120B or 147 of the IPC and
those undertrials who were found possessing incriminating articles, a
lenient view can be taken. The Apex Court had observed that cases of
undertrials falling in the above categories can be dealt with leniently
and can be released if they have been in jail for three years and two
years respectively. We also note the pronouncement of the Apex
Court in K.A. Najeeb (supra) and Athar Parwez (supra) wherein it
was held that the presence of statutory restrictions like Section
43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 59 ::
the Constitution of India.
(iv) 4th Appellant - Ashraf K. (Accused No.32 in charge)
Date of arrest: 7.11.2022
(Period of pre-trial detention undergone - 2 Years 4 Months and 20
Days)
Charge:
That, the accused Ashraf. K (A-32) being a Former Area Secretary of
PFI, Pattambi Area and an active cadre of PFI, knowingly and intentionally
became a member of terrorist gang formed by PFI to commit terrorist act
as a part of larger conspiracy hatched by PFI and its office bearers and
cadres since last few years to enact their "India 2047" agenda of
establishing Islamic Rule in India. Being a member of terrorist gang, he
attended conspiracy meetings held at Nasar's (A-33's) Curtain Shop at
Pattambi on 15th of April, 2022 and in Palakkad on 15th and 16th of April,
2022 for committing terrorist act by murdering any available Hindu Leader
with the intention of creating terror in the minds of the Hindu community
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 60 ::
and among public at large which resulted in the murder of Srinivasan on
16.04.2022 by PFI cadres. He along with Ansar (A-25) conducted recce of
the target on 15.04.2022 on motorcycle bearing Regn No. KL-09-AQ-713
arranged by Abbas (A-52), for committing terrorist act. He also committed
acts prejudicial to the maintenance of harmony between different religious
groups and has disturbed the public tranquillity in the State at large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
c) The allegation against A32 is that he had attended the conspiracy
meeting held on 15.4.2022 and 16.04.2022 and conducted recce of
targets along with Ansar (A23). Mere movements on the bike and
presence at various places will not amount to conducting recce. There
is no material to substantiate that he was part of a larger conspiracy
to overthrow the democracy in India.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 61 ::
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The appellant has been in custody for more than 2 years and 4
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A32 is a former Area Secretary of PFI, Pattambi area and an active
cadre of PFI. Video clips have been collected showing the
participation of the appellant in processions of the PFI.
b) Attended conspiracy meeting held at the curtain shop of accused
Nasar (A33) at Pattambi on 15.04.2022.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 62 ::
c) Attended conspiracy meeting held near Khabaristhan at Palakkad on
the night of 15.04.2022 for the purpose of committing a terrorist act.
d) Conducted recce for locating the targets on 15.04.2022 along with
Ansar (A23) in a motorcycle arranged by Abbas (A47)
e) Attended conspiracy meeting held at Palakkad on 16.04.2022 for
committing the terrorist act of murder of Sreenivasan on 16.04.2022.
The intention was to create terror in the minds of Hindu community
and the public at large.
Entitlement for bail of Ashraf K. (A32)
a) As is discernible from the materials, the appellant has undergone
pre-trial detention of more than 2 years and 4 months. The trial
proceedings have been stayed by the order passed by the Apex Court.
Even if the trial commences, the large number of witnesses of about
1000 and a huge number of exhibits and material objects would
necessarily mean that the trial would be delayed for years. Insofar as
the conspiracy to overthrow the democracy in India and to implement
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 63 ::
Islamic rule, there is no direct evidence against the appellant. He has
been roped in on the ground that he is a member of the Reporter
wing, and he is alleged to have conducted recce of targets with A23.
In view of the observations and principles in Shaheen Welfare
Assn. (supra), a pragmatic approach has to be adopted in cases of
deprivation of personal liberty without the prospect of trial being
concluded within a reasonable time. As held in paragraph No. 14 of
the judgment, undertrials who are roped in not because of any
terrorist activity but by virtue of Section 120B or 147 of the IPC and
those undertrials who were found possessing incriminating articles, a
lenient view can be taken. The Apex Court had observed that cases of
undertrials falling in the above categories can be dealt with leniently
and can be released if they have been in jail for three years and two
years respectively. We also note the pronouncement of the Apex
Court in K.A.Najeeb (supra) and Athar Parwez (supra) wherein it
was held that the presence of statutory restrictions like Section
43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 64 ::
the Constitution of India.
10.3 Crl.A. No. 242 of 2025:
(i) 1st Appellant- Jishad B (A29 in charge)
Date of arrest: 10.5.2022
(Period of pre-trial detention undergone - 2 Years 10 Months
and 17 Days)
Charge:
That, the accused Jishad (A-29), a Government servant working as
Fire and Rescue Officer in the Fire and Rescue Department of Government
of Kerala, being a Media In-charge of PFI Pudunagaram and became a
member of terrorist gang formed by PFI to commit terrorist act as a part of
larger conspiracy hatched by PFI and its office bearers and cadres since last
few years to enact their "India 2047" agenda of establishing Islamic Rule in
India. Being a member of terrorist gang, he attended conspiracy meetings
held at Palakkad on 16th of April, 2022 for committing terrorist act by
murdering any available Hindu Leader with the intention of creating terror
in the minds of the Hindu community and among public at large which
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 65 ::
resulted in the murder of Srinivasan on 16.04.2022 by PFI cadres. He along
with Mohammed Shafeek (A-35) conducted recce on 16th April 2022 by
motorcycle with Regn. No. KL-49 E-9433, arranged by A-35, to locate the
targets for committing terrorist act. He also committed acts prejudicial to
the maintenance of harmony between different religious groups and has
disturbed the public tranquillity in the State at Large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
c) The allegation against A29 is that he had attended the conspiracy
meeting held on 16.04.2022 and conducted recce with A31 on a bike
arranged by the said accused. Mere movements on the bike and
presence at various places will not amount to conducting recce. There
is no material to substantiate that he was part of a larger conspiracy
to overthrow the democracy in India.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 66 ::
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The appellant has been in custody for more than 2 years and 10
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A29 is part of a larger conspiracy to overthrow the democracy in India
and to establish Islamic Rule as per Agenda India 2047.
b) Jishad is a member of the PFI cadre and a member of the reporter
wing of PFI in Palakkad District
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 67 ::
c) He conducted recce on 16.04.2022 along with A31 (Mohammed
Shefeek) to locate and identify targets for committing the terrorist
act.
d) Attended the conspiracy meeting held at Palakkad on 16.04.2022 for
committing the terrorist act of murder of Srinivasan on 16.04.2022.
The intention was to create terror in the minds of Hindu community
and the public at large.
e) He is an officer serving in the Fire and Rescue Services Department
who got actively involved in terrorist activities.
f) He is the 21st accused in Crime No 1989 of 2021 of the Town South
Police Station, Palakkad, involving the death of one Sanjith.
Entitlement for bail of Jishad B (A29 in charge)
a) As is discernible from the materials, the appellant has undergone
pre-trial detention of more than 2 years and 10 months. The trial
proceedings have been stayed by the order passed by the Apex Court.
Even if the trial commences, the large number of witnesses of about
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 68 ::
1000 and a huge number of exhibits and material objects would
necessarily mean that the trial would be delayed for years. Insofar as
the conspiracy to overthrow the democracy in India and to implement
Islamic rule, there is no direct evidence against the appellant. He has
been roped in on the ground that he is a member of the Reporter
wing, and he is alleged to have conducted recce of targets with A35.
He is also alleged to have been present when the conspiracy was
hatched. In view of the observations and principles in Shaheen
Welfare Assn. (supra), a pragmatic approach has to be adopted in
cases of deprivation of personal liberty without the prospect of trial
being concluded within a reasonable time. As held in paragraph No.
14 of the judgment, undertrials who are roped in not because of any
terrorist activity but by virtue of Section 120B or 147 of the IPC and
those undertrials who were found possessing incriminating articles, a
lenient view can be taken. The Apex Court had observed that cases of
undertrials falling in the above categories can be dealt with leniently
and can be released if they have been in jail for three years and two
years respectively. We also note the pronouncement of the Apex
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 69 ::
Court in K.A. Najeeb (supra) and Athar Parwez (supra) wherein it
was held that the presence of statutory restrictions like Section
43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
the Constitution of India.
(ii) 2nd Appellant - Ashraf @ Ashraf Moulavi (A30 in charge)
Date of arrest: 24.5.2022
(Period of pre-trial detention undergone - 2 Years 10 Months and 17
Days)
Charge:
That, the accused Ashraf @ Ashraf Moulavi (A-30) being Unit
Secretary of PFI Karimbully unit, knowingly and intentionally became a
member of terrorist gang formed by PFI to commit terrorist act as a part of
larger conspiracy hatched by PFI and its office bearers and cadres since last
few years to enact their "India 2047" agenda of establishing Islamic Rule in
India. Being a member of terrorist gang, he attended the conspiracy
meetings held at Nasar's (A-33) Curtain Shop at Pattambi on 15th of April,
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 70 ::
2022 for committing terrorist act by murdering any available Hindu Leader
with the intention of creating terror in the minds of the Hindu community
and among public in general which resulted in the murder of Srinivasan on
16.04.2022 by PFI cadres. In furtherance to the conspiracy, he, by using his
car bearing Regn No. KL-52-N-7561 went to ascertain the whereabouts of
04 leaders of other community short-listed by PFI for eliminating. He
prepared the route map of Hindu leaders whom PFI identified as possible
targets for committing terrorist act. In furtherance of the larger conspiracy,
he, along with Ansar (A-25), Abdul Rasheed (A-28), Nasar (A-33), Ali
(A-43), conspired to destroy the evidence after the commission of the
terrorist act. He also committed acts prejudicial to the maintenance of
harmony between different religious groups and has disturbed the public
tranquillity in the State at large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 71 ::
c) There is no allegation that A30 underwent arms training in the final
report. There is no material to substantiate that he was part of a
larger conspiracy to overthrow the democracy in India.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The appellant has been in custody for more than 2 years and 10
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A30 is part of a larger conspiracy to overthrow the democracy in India
and to establish Islamic Rule as per Agenda India 2047.
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 72 ::
b) He is the Unit Secretary of PFI Karimpully Unit and an active cadre of
PFI.
c) He conducted and supervised arms training conducted by the PFI at
Periyar Valley, Aluva.
d) Attended conspiracy meeting held at the curtain shop of Nassar ( A33)
on 15.04.2022 for committing murder of any available Hindu leader
with the intention to create terror in the minds of Hindu community
and the public at large.
e) Prepared the route map of Hindu leaders whom PFI identified as
possible targets.
f) Conspired with the other accused for destroying evidence after
committing the murder of Srinivasan and took active part in
concealing the vehicle used for commission of the offence and the
mobile phone of A 28 (Abdul Rasheed), the absconding accused.
Entitlement for bail of Ashraf @ Ashraf Moulavi (A30)
a) The appellant has been in pre-trial custody for over two years and ten
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 73 ::
months. The trial proceedings remain stayed. In view of the large
number of witnesses, including protected witnesses and more than
1000 exhibits, the trial is unlikely to proceed quickly. The main
allegation is that the appellant took part in a conspiracy to overthrow
India's democratic system and establish Islamic rule. However, there is
no direct evidence against him. He has been implicated on the ground
that he attended a meeting on 15.04.2022 and allegedly gave arms
training as part of the conspiracy. In such circumstances, the guiding
principles laid down in Shaheen Welfare Assn. (supra) would be
applicable. The Apex Court emphasized that where an undertrial is in
long-term detention and the trial is unlikely to conclude soon, a
practical and balanced approach must be taken. In paragraph 14 of
the judgment, the Court held that when undertrials are not directly
involved in terrorist acts but are charged under Section 120B or 147
IPC, or merely found in possession of suspicious articles, courts can
take a lenient view. The Court further clarified that such undertrials
may be considered for release if they have spent three years and two
years in jail, respectively. Furthermore, in K.A. Najeeb (supra) and
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 74 ::
Athar Parwez (supra) the Supreme Court held that statutory bars
like Section 43-D(5) of the UAPA do not prevent constitutional courts
from granting bail when there is a violation of fundamental rights
under Part III of the Constitution.
(iii) 3rd Appellant - Sirajudheen (A51 in charge)
Date of arrest: 16.09.2022
(Period of pre-trial detention undergone - 2 Years 6 Months and 11
days.)
Charge:
a) That, the accused Sirajudheen (A-56) being an active cadre of PFI
and District Head of 'Reporter Wing' of PFI, knowingly and intentionally
became a member of terrorist gang formed by PFI to commit terrorist act
as a part of larger conspiracy hatched by PFI and its office bearers and
cadres since last few years to enact their "India 2047" agenda of
establishing Islamic Rule in India. In furtherance to larger conspiracy, he
collected and possessed the list of various Hindu leaders targeted by PFI to
eliminate by committing terrorist act. Being a member of terrorist gang,he
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 75 ::
attended the conspiracy meetings held at Palakkad on 15th and 16th of
April 2022 for committing terrorist act by murdering any available Hindu
Leader with the intention of creating terror in the minds of the Hindu
community and among public at large which resulted in the murder of
Srinivasan on 16.04.2022 by PFI cadres. In furtherance of the conspiracy,
being a member of the terrorist gang, he knowingly and intentionally
harboured assailant Kajahussain @ Robot Kaja (A-19) after the commission
of terrorist act of murdering Srinivasan. He committed acts prejudicial to
the maintenance of harmony between different religious groups and has
disturbed the public tranquillity in the State at large.
Contention of the appellant:
a) The appellant is innocent of the allegations.
b) No case for the State Police that the murder of Sreenivasan was a
terrorist act.
c) The allegation against A51 is that he had attended the conspiracy
meeting held on 15.04.2022 and 16.04.2022. The allegation that he
2025:KER:27791
Crl.A. Nos.228/2025,
225/2025 & 242/2025 :: 76 ::
had harboured Kaja Hussain(A26), one of the assailants, is not true.
There is no material to substantiate that he was part of a larger
conspiracy to overthrow the democracy in India.
d) Section 43-D (5) of UAP Act will not be attracted against the appellant
since there are no materials to show that the appellant has been
involved or has indulged in a terrorist act.
e) Doc No.1376 titled "India 2047 - Towards Role of Islam in India, is a
vision document and the appellant has nothing to do with the same.
f) The appellant has been in custody for more than 2 years and 6
months. There are more than 900 witnesses, 52 protected witnesses
and 1600 documents, and since the trial has not even started, and the
proceedings remain stayed, there is no likelihood of the trial being
concluded in the near future.
Objection.
a) A51 is an active cadre of PFI and the District Head of the Reporter
Wing.
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b) A51 is part of a larger conspiracy to overthrow the democracy in India
and to establish Islamic Rule as per Agenda India 2047.
c) He attended the conspiracy meetings held at Palakkad on 16.4.22 for
murdering Srinivasan.
d) He intentionally harboured Kaja Hussain ( A26) in his house after the
commission of the murder. He purchased medicines from CW286 for
the treatment of Kaja Hussain.
e) In order to accomplish the common objective of the PFI, A51 collected
the personal details of various persons occupying organisational
positions in the Thiroorangadi and Mangalam Area of Malappuram and
Palakkad.
f) He is the 23rd accused in Crime No 1989/2021 involving the murder of
one Sanjith.
Entitlement for bail of Sirajudheen (A51)
a) As is evident from the materials on record, the appellant has
undergone pre-trial incarceration for a period exceeding two years and
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six months. The trial proceedings stand stayed pursuant to an order
passed by the Hon'ble Supreme Court of India. Even assuming that
the trial were to commence in the near future, the voluminous nature
of the case, comprising nearly 1000 witnesses, along with an
extensive array of exhibits and material objects, inevitably implies that
the completion of the trial is unlikely to occur within a reasonable
timeframe.
b) With respect to the alleged conspiracy to overthrow the democratic
framework of India and establish Islamic rule, it is pertinent to note
that there is no direct evidence implicating the appellant. The
prosecution's case against him is primarily based on his alleged
membership as a PFI cadre member and his with the "reporter wing"
and the maintenance of a purported list of targets. He is alleged to
have harboured one Kaja Hussain, an accused in the murder of
Sreenivasan. He is also alleged to have purchased medicines for the
accused. In light of the principles laid down in Shaheen Welfare
Assn. (supra), a pragmatic and constitutionally balanced approach
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must be adopted in cases involving prolonged deprivation of personal
liberty, particularly where the possibility of a trial concluding within a
reasonable time frame remains remote. As observed in paragraph 14
of the said judgment, where undertrial prisoners are implicated not for
direct involvement in terrorist acts but solely on the basis of
conspiracy charges under Sections 120B or 147 of the IPC, or for the
mere possession of allegedly incriminating articles, a more lenient
view is warranted. The Hon'ble Apex Court has explicitly recognized
that undertrials falling within such categories may be granted bail,
especially where they have remained in custody for extended
durations--three years in conspiracy cases and two years in
possession cases, respectively.
c) We also take note of the authoritative pronouncement of the Hon'ble
Supreme Court in K.A. Najeeb (supra) and Athar Parwez (supra),
wherein it was categorically held that the statutory bar under Section
43-D(5) of the Unlawful Activities (Prevention) Act, 1967, does not
override the jurisdiction of constitutional courts to grant bail,
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particularly in cases involving violation of fundamental rights under
Part III of the Constitution of India.
11. It would be apposite at this juncture to refer to the observations made
by the Apex Court in MOHD MUSLIM @ HUSSAIN v. STATE (NCT OF DELHI)12
wherein the Apex Court was confronted with the prolonged incarceration of a person
accused of committing offence under the NDPS Act. The Hon'ble Court referred to
the observations of a learned Single Judge of this Court (Chettur Sankaran Nair. J.) in
A Convict Prisoner v. State 13 and observed as under:
22. Before parting, it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in time, the injustice
wrecked on the individual is immeasurable. Jails are overcrowded
and their living conditions, more often than not, appalling.
According to the Union Home Ministry's response to Parliament, the
National Crime Records Bureau had recorded that as on 31
December 2021, over 5,54,034 prisoners were lodged in jails
against total capacity of 4,25,069 lakhs in the country. Of these
122,852 were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are at risk
[ (2023) 18 SCC166
[1993 Cri LJ 3242]
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of "prisonisation" a term described by the Kerala High Court in A
Convict Prisoner v. State 1993 Cri LJ 3242 as"a radical
transformation" whereby the prisoner loses his identity. He is known
by a number. He loses personal possessions. He has no personal
relationships. Psychological problems result from loss of freedom,
status, possessions, dignity any autonomy of personal life. The
inmate culture of prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-perception changes."
12. The respondents have a contention that the proceedings are dragging
on in view of the order of stay granted by the Apex Court in SLP (Crl.) No. 3658 of
2024. The Apex Court by order dated 6.5.2024 has interdicted the Special Court
from framing the charge and the said stay is still in force. The accused cannot be
blamed for taking up legitimate contentions and approaching the highest court of the
land to ventilate their grievances and obtain favourable orders. What matters
essentially is the period of pre-trial detention that the accused has endured and the
possibility of the trial being delayed even further. In view of the large number of
witnesses, exhibits and material objects, there cannot be any doubt that the trial
cannot be concluded in the near future even if the stay order is vacated. It would be
profitable to remind oneself that the Apex Court in Athar Parwez (supra) had
granted bail to the accused facing similar allegations as the appellants after noting
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that they had been undergoing pre-trial detention for 2 years and 4 months.
13. Conclusion:
In view of the discussion above, the impugned orders of the Special Court
denying bail to the applicants are set aside. Crl.A.Nos.228 of 2025, 225 of 2025 &
242 of 2025 will stand allowed. The appellants in Crl.A. Nos.228/2025, 225/2025 &
242/2025 shall be released on bail on each of them executing a bond for a sum of
Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum
to the satisfaction of the learned Special Court. It shall be open to the Special Court
to impose such additional conditions as it may deem fit and necessary in the interest
of justice. However, the conditions shall mandatorily include the following:
a) If the appellants intend to leave the State of Kerala, they shall
obtain prior permission from the Special Court.
b) If the appellants are in possession of any passport(s), they shall
surrender the same before the Special Court forthwith.
c) The appellants shall furnish to the Investigating Officer of the
NIA their complete and current residential address, including
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any changes thereto, and shall ensure that the same remains
updated at all times.
d) The appellants shall each use only one mobile number during
the period of bail and shall communicate the said number to
the Investigating Officer of the NIA. They shall remain
accessible on the said number throughout the duration of bail
and shall not, under any circumstances, switch off or discard
the device associated with it without prior intimation.
e) The appellants shall report before the Station House Officer of
the Police Station having jurisdiction over their place of
residence once every fortnight, without fail
f) The appellants shall not tamper with evidence or attempt to
influence or threaten any witnesses in any manner.
g) The appellants shall not engage in or associate with any activity
that is similar to the offence alleged against them or commit
any offence while on bail.
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In the event of any breach of the aforesaid conditions or of any other
condition that may be imposed by the Special Court in addition to the above, it
shall be open to the prosecution to move for cancellation of the bail granted to
the appellants before the Special Court, notwithstanding the fact that the bail
was granted by this Court. Upon such application being made, the Special Court
shall consider the same on its own merits and pass appropriate orders in
accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V.BALAKRISHNAN,
JUDGE
PS/31/03/25
