Kerala High Court
Shafeer C vs Union Of India on 28 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.765/2025 1 2025:KER:54700
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
MONDAY, THE 28 DAY OF JULY 2025 / 6TH SRAVANA, 1947
CRL.A NO. 765 OF 2025
CRIME NO.1/2011 OF NATIONAL INVESTIGATION AGENCY KOCHI, Ernakulam
AGAINST THE JUDGMENT DATED 28.03.2025 IN CRMP NO.80/2025 IN SC NO.2
OF 2023 OF SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM
APPELLANT/PETITIONER/ACCUSED NO.55:
SHAFEER C., AGED 34 YEARS, S/O. AZEEZ,
CHEMBOTH HOUSE, CHAKKAD, P.O. VILAKKODE, MUZHAKKUNNU,
KANNUR DISTRICT, PIN - 670703
BY ADVS.
SHRI.E.A.HARIS
SHRI.M.A.AHAMMAD SAHEER
SRI.MUHAMMED YASIL
SMT.AAGI JOHNY
RESPONDENT/RESPONDENT/COMPLAINANT:
UNION OF INDIA, REPRESENTED BY INSPECTOR OF POLICE, NATIONAL
INVESTIGATION AGENCY, KOCHI, PIN - 682020
BY ADVS.
O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF INDIA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2025, THE
COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
This criminal appeal is preferred impugning the order of the Special Court
for the trial of NIA cases, Ernakulam, in Crl. M. P. No.80/2025 in
R.C.No.1/2011/NIA. The appellant herein is accused No.55 in R.C.No.1/2011. By
the impugned order, the learned Special Judge dismissed the bail application filed
by the appellant/accused No.55.
Prosecution Case
2. The prosecution case in brief is that, on 04.07.2010, PFI/SDPI
activists attacked Prof. T. J. Joseph of Newman's College, Thodupuzha, Idukki
District, and chopped off his right palm and threw it into a nearby compound as
part of executing their vengeance.
3. The case was initially taken up for investigation by the Kerala Police.
Later, the National Investigating Agency (NIA) took over the investigation and laid
the charge sheet. The Special Court tried the case and convicted some of the
accused persons. However, the first accused in the above case, Savad @ Savadh
Crl.Appeal No.765/2025 3 2025:KER:54700
@ Shajahan, absconded. The case against him was split up and refiled as
S.C.No.3/2023/NIA. Later, Savad @ Savadh, the prime accused, was arrested
from Beram, Mattannur, Kannur on 10.01.2024.
4. Further investigation of the case revealed that the appellant was an
active cadre of the Popular Front of India (PFI), Kannur District. In pursuance of a
larger conspiracy among the accused, who are members of the PFI, the appellant
wilfully arranged shelter and other logistical support for the first accused at
Chakkad and Mattanur in Kannur District, from 2020 until his arrest on
10.01.2024. Therefore, the prosecution alleges that the appellant has committed
offences punishable under Sections 212 and 120B of the Indian Penal Code, and
Section 19 of the Unlawful Activities (Prevention) Act, 1967 (for the sake of
brevity, 'the UA(P) Act')."
5. The appellant was arrested on 23.08.2024. After the completion of
further investigation, the NIA filed a supplementary charge sheet on 17.02.2025
against him. The specific allegation against accused No. 55, Shafeer, is that he
had provided shelter to the first accused for about two years and also facilitated
the meetings of accused No.1 with his parents and siblings.
Crl.Appeal No.765/2025 4 2025:KER:54700
The Charge
6. Shafeer C., Accused No. 55, is a known SDPI/PFI cadre from Kannur
District and has criminal antecedents related to his involvement in PFI-related
cases in the same district. He voluntarily harboured Savad @ Savadh @ Shajahan
(Accused No. 1), knowing that the said accused had committed a terrorist act.
With the intention of screening Savad @ Savadh, an absconding accused, from
arrest, legal proceedings, and punishment, the appellant arranged shelter for him
in a rented house owned by one Kunjimoosa at Chakkad, Kannur District, wherein
Savad resided in a pseudonym as 'Shajahan' from 2020 to 2022.
7. He has also arranged shelter in a rented house owned by one
Khadeeja at Mattannur, Kannur, from 17.12.2022 onwards. During that period,
Accused No. 55, Shafeer, arranged a job for Savad @ Savadh as a carpenter at a
shop in Narayanpara, Kannur District, and frequently visited him at both his
residence and workplace. During 2021 and 2022, the appellant also arranged
meetings between Savad @ Savadh and his parents and siblings near a mosque
and crematorium in Koratty, Thrissur District, Kerala.
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Submissions of the learned counsel for the appellant
8. The learned counsel for the appellant submitted that the order of
the Special Court rejecting bail is legally unsustainable. The appellant was
arrested on 23.08.2024. The learned counsel further submitted that there is
nothing in the supplementary charge sheet to prima facie attract the offence
under Section 19 of the UA(P) Act. It was argued that the appellant is innocent
and has been falsely implicated in the case based on concocted and unreliable
evidence. Moreover, the alleged offence of harbouring or concealing a terrorist,
even if assumed to be true, does not amount to a grave offence warranting
continued detention.
9. The learned counsel for the appellant further argued that the
allegation of the investigating agency that huge funds were transacted through
the account of the appellant is false and fabricated.
10. The learned counsel for the appellant further argued that two
rounds of trial have already been completed by the Special Court. Considering the
lengthy duration of the proceedings, the appellant is unduly burdened, primarily
due to the bar under Section 43D(5) of the UA(P) Act. It was submitted that the
case involves numerous witnesses, voluminous documents, and material objects.
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In such circumstances, continued incarceration of the appellant without bail would
amount to a denial of his fundamental rights. The learned counsel submitted that,
considering the nature, gravity of the offence and period of detention, the
appellant can be enlarged on bail with stringent conditions.
11. The learned counsel pointed out that further incarceration of the
appellant is unwanted. Considering the numerous witnesses, voluminous
documents, and material objects, the trial court would not be able to complete
the trial in the near future. In order to fortify the contention, the learned counsel
placed reliance on the judgments of the Apex Court in Union of India v. K.A
Najeeb1. The learned counsel submitted that the prolonged custody of the
appellant violates his right guaranteed under Part III of the Constitution of India.
The learned counsel has also placed reliance on the dictum laid down in Javed
Gulam Nabi Shaikh v. State of Maharashtra2, Jalaluddin Khan v. Union of
India3, and Ankur Chaudhary v. State of Madhya Pradesh4.
Submissions of the learned Deputy Solicitor General of India (DSGI)
12. Smt. O.M. Shalina, the learned Deputy Solicitor General of India
(2021) 3 SCC 713
2024 SCC OnLine SC 1693
2024 KHC 6431
2024 KHC 8248
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(DSGI), submitted a detailed objection, vehemently opposing the contentions of
the appellant.
13. The learned DSGI submitted that the appellant was charge sheeted
for offences punishable under Section 212 of the IPC and Section 19 of the UA(P)
Act. The aforesaid case is related to the notorious, brutal attack of Prof. T. J.
Joseph at Muvattupuzha in Ernakulam district, Kerala, on 04.07.2010 by PFI/SDPI
activists alleging blasphemy in the question paper prepared by Prof.T. J. Joseph in
the internal examination conducted in Newman College, Thodupuzha. The
allegation against the accused was that they chopped off the right palm of the
victim after inflicting brutal injuries and that they had thrown the severed palm
away to the nearby compound. She further submitted that the trial against 42
accused was completed, and the Special Court found 19 accused guilty of various
offences, including those under the UA(P) Act.
14 The learned DSGI submitted that the investigation has revealed that
the appellant had harboured the first accused, Savad @ Savadh, and had also
arranged employment for him in Kannur while he was absconding, allegedly
acting under the directions of PFI activists. The learned DSGI further submitted
that there are sufficient materials on record which prima facie establish that the
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appellant harboured the first accused with full knowledge that he was the prime
accused in a case involving a terrorist act, under the UA(P) Act.
15. The prosecution has produced sufficient materials, including witness
statements and documents, which would establish the involvement of the
appellant in harbouring the accused No.1. The statement of witnesses produced
along with the charge sheet before the Hon'ble Special Court for the Trial of NIA
cases such as CW-1 to 4, CW-12 and CW-13 will prove that the appellant
harboured the first accused, Savad @ Savadh @ Shajahan. From the statements
of CWs 5 to 11, it is revealed that the appellant had arranged a job for the
absconding accused No.1 and frequently visited him. The statement of protected
witness B would indicate that the meeting of Savad @ Savadh with his family was
in the presence of the appellant. CWs-56 and 57 stated about the Look Out Notice
issued against accused No.1, Savad @ Savadh, pasted at Mattanoor Police Station
limits and Iritty Police Station limits in Kannur District, Kerala, respectively. The
statements of witnesses, the CDRs, and other documents point out the
connection between the appellant and the Savad @ Savadh, who had absconded
for more than 14 years after the alleged commission of a terrorist act. It is
submitted that the photograph of Savad @ Savadh @ Shajahan was circulated
through Look Out Circulars as well as through the media.
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16. The learned DSGI further submitted that the bank account
statements of the appellant would reveal dubious financial transactions during
that period. The bank account statements [D24 and D25] would further show
that substantial amounts were deposited into the account of the appellant during
the relevant period.
17. The learned DSGI further submitted that the investigation would
reveal that the appellant, Shafeer, is an active cadre of PFI and involved in various
criminal cases, including a murder case and agitations of PFI, a prohibited
organization. He is a henchman of PFI, having strong connections across, both at
personal level as well as through the international wing of PFI - India Fraternity
Forum (IFF). The learned DSGI would further point out that if the appellant is
released on bail, there is every chance that he would tamper with evidence by
threatening the witnesses and is likely to abscond. The learned DSGI has also
pointed out the criminal background and antecedents of the appellant. The
appellant has been involved in four other cases:
a) Accused number 1 in Crime No. 1247/2012 of Iritty Police Station for
offences under sections 447, 308, 353 r/w 34 IPC and 2(1C) r/w 25 of Arms
Act, (D-19).
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b) Accused number 10 in Crime No. 48/2018 of Peravur Police Station for
offences under sections 143, 147, 148, 120B, 109, 341, 302, 201 r/w 149
IPC and Section 4 r/w 25(1B) and (b) of Arms Act (D-20).
c) Accused number 14 in Crime No. 316/2022 of Iritty Police Station for
offences under sections 143, 145, 283 r/w 149 IPC (D-21).
d) Accused number 5 in Crime No. 1216/2015 of Iritty Police Station for
offences under sections 143, 147, 148, 323, 324, 326, 308, 506(ii) r/w 149
IPC (D-22).
18. The learned DSGI submitted that there are prima facie and
reasonable grounds to believe that the appellant has committed the offence.
Since the nature and gravity of the charge are so severe that it affect the
sovereignty and integrity of the nation, the appellant shall not be released on bail.
The Special Court has rightly placed reliance on Gurwinder Singh v. State of
Punjab5. The learned DSGI has placed reliance on the judgment in Saheer v.
National Investigation Agency [Crl.Appeal No.5272/2024 dated
13.12.2024].
2024 KHC 6062
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Analysis
19. We have carefully considered the submissions advanced by the
learned counsel for the appellant and the learned DSGI.
20. In the case on hand, the appellant has been in custody for the last
10 months and 16 days. He was arrested on 23.08.2024. The allegation against
the appellant is that he is an active cadre of PFI/SDPI and that he harboured
accused No.1, Savad @ Shajahan, at Mattanoor in Kannur district. The appellant
had arranged a job for the prime accused in the hand-chopping case of Prof.T. J.
Joseph of Newman's College, Thodupuzha, Idukki District.
21. The offences charged against the appellant are under Section 212 of
the IPC and Section 19 of the UA(P) Act. Section 212, harbouring under the
Indian Penal Code, is a bailable offence, and the punishment prescribed for the
said offence is three years. However, under Section 19 of the UA(P) Act, if the
offence of harbouring a terrorist is proved, the punishment prescribed is
imprisonment for a term not less than three years, which may extend to
imprisonment for life.
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22. In Najeeb's case (supra), paragraphs 15, 17, 18, and 20 read thus:
"15. The facts of the instant case are more egregious than these
two above - cited instances. Not only has the respondent been in jail
for much more than five years, but there are 276 witnesses left to be
examined. Charges have been framed only on 27/11/2020. Still
further, two opportunities were given to the appellant - NIA who has
shown no inclination to screen its endless list of witnesses. It also
deserves mention that of the thirteen co - accused who have been
convicted, none have been given a sentence of more than eight years'
rigorous imprisonment. It can therefore be legitimately expected that
if found guilty, the respondent too would receive a sentence within
the same ballpark. Given that two - third of such incarceration is
already complete, it appears that the respondent has already paid
heavily for his acts of fleeing from justice.
16. .....................
17. As regard to the judgment in NIA v. Zahoor Ahmad Shah Watali
(supra), cited by learned ASG, we find that it dealt with an entirely
different factual matrix. In that case, the High Court had re -
appreciated the entire evidence on record to overturn the Special
Court's conclusion of their being a prima facie case of conviction and
concomitant rejection of bail. The High Court had practically
conducted a mini - trial and determined admissibility of certain
evidences, which exceeded the limited scope of a bail petition. This
not only was beyond the statutory mandate of a prima facie
assessment under S.43 - D(5), but it was premature and possibly
would have prejudiced the trial itself. It was in these circumstances
that this Court intervened and cancelled the bail.
18. It is thus clear to us that the presence of statutory restrictions
like S.43 - D(5) of UA(P)A per - se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a Statute as well
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as the powers exercisable under Constitutional Jurisdiction can be well
harmonised.
Whereas at commencement of proceedings, Courts are expected to
appreciate the legislative policy against grant of bail but the rigours of
such provisions will melt down where there is no likelihood of trial
being completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of
the prescribed sentence. Such an approach would safeguard against
the possibility of provisions like S.43 - D (5) of UA(P)A being used as
the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.
19.......................
20. Yet another reason which persuades us to enlarge the
Respondent on bail is that S.43 - D(5) of the UA(P)A is comparatively
less stringent than S.37 of the NDPS. Unlike the NDPS where the
competent Court needs to be satisfied that prima facie the accused is
not guilty and that he is unlikely to commit another offence while on
bail; there is no such pre - condition under the UA(P)A. Instead, S.43 -
D(5) of UA(P)A merely provides another possible ground for the
competent Court to refuse bail, in addition to the well - settled
considerations like gravity of the offence, possibility of tampering with
evidence, influencing the witnesses or chance of the accused evading
the trial by absconsion etc."
23. In Najeeb's case (supra), the respondent was a PFI worker who
was charged under various sections of the Indian Penal Code and UA(P) Act. The
allegation against the respondent in that case was that he had attacked a
Professor and hurled a bomb at him. The specific allegation against the
Crl.Appeal No.765/2025 14 2025:KER:54700
respondent was that he was a conspirator in the crime. He was in jail for more
than five years. The Apex Court held that the statutory restrictions like 43-D(5) of
UA(P) Act would not oust the ability of the constitutional Court to grant bail on
the ground of violation of Part III of the Constitution, while holding that the
accused has the right to a speedy trial and if the same is not possible, Courts are
obligated to enlarge him on bail.
24. In Javed Gulam Nabi's case (supra), the Court reiterated the
same principle. In this case, the appellant/accused was an under-trial prisoner for
about four years without any charges being framed. Paragraphs 7 and 9 of the
said judgment read thus:
"7. Having regard to the aforesaid, we wonder by what period of
time, the trial will ultimately conclude. Howsoever serious a crime
may be, an accused has a right to speedy trial as enshrined under
the Constitution of India. Over a period of time, the trial courts and
the High Courts have forgotten a very well-settled principle of law
that bail is not to be withheld as a punishment.
8. ...............................
9. The same principle has been reiterated by this Court in Gurbaksh
Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the object of
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bail is to secure the attendance of the accused at the trial, that the
proper test to be applied in the solution of the question whether
bail should be granted or refused is whether it is probable that the
party will appear to take his trial and that it is indisputable that bail
is not to be withheld as a punishment."
25. In Jalaluddin Khan's case (supra), the appellant was charged with
UA(P) Act and various offences under the Indian Penal Code and was in custody
for a period of two years and one month. The relevant paragraphs are extracted
hereunder:
"19. Therefore, on plain reading of the charge sheet, it is not
possible to record a conclusion that there are reasonable grounds
for believing that the accusation against the appellant of
commission of offences punishable under the UA(P)A is prima facie
true. We have taken the charge sheet and the statement of
witness Z as they are without conducting a mini - trial. Looking at
what we have held earlier, it is impossible to record a prima facie
finding that there were reasonable grounds for believing that the
accusation against the appellant of commission of offences under
the UA(P)A was prima facie true. No antecedents of the appellant
have been brought on record.
20. The upshot of the above discussion is that there was no
reason to reject the bail application filed by the appellant.
21. Before we part with the Judgment, we must mention here
that the Special Court and the High Court did not consider the
material in the charge sheet objectively. Perhaps the focus was
more on the activities of PFI, and therefore, the appellant's case
could not be properly appreciated. When a case is made out for a
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grant of bail, the Courts should not have any hesitation in granting
bail. The allegations of the prosecution may be very serious. But,
the duty of the Courts is to consider the case for grant of bail in
accordance with the law. "Bail is the rule and jail is an exception" is
a settled law. Even in a case like the present case where there are
stringent conditions for the grant of bail in the relevant statutes,
the same rule holds good with only modification that the bail can
be granted if the conditions in the statute are satisfied. The rule
also means that once a case is made out for the grant of bail, the
Court cannot decline to grant bail. If the Courts start denying bail
in deserving cases, it will be a violation of the rights guaranteed
under Art.21 of our Constitution."
26. In Harpreet Singh Talwar v. State of Gujarat6 it was held that
prolonged incarceration in jail, by itself, is not a ground for the grant of bail. Each
case is to be evaluated independently in the light of specific facts and risks
associated with each case. The learned DSGI referred to paragraphs 23 and 24 of
the case, which read as under:
"23. It may merit to discuss at the outset, the the scope and
application of Section 43D(5) of UAPA whereunder the court, at the
stage of bail is not required to meticulously examine the
admissibility and reliability of evidence. The degree of satisfaction
required under this provision has to be lower than the proof beyond
reasonable doubt, but must still be rooted in material that is not
inherently improbable or ex facie unreliable.
MANU/SC/0675/2025
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24. The rigour of Section 43D(5) of the UAPA would, however, in an
appropriate case yield to the overarching mandate of Article 21 of
the Constitution, especially where the trial is inordinately delayed or
where the incarceration becomes punitive. However, such relaxation
cannot possibly be automatic and must be evaluated in light of the
specific facts and risks associated with each case, as has been
previously clarified."
27. We have carefully considered the charge, statement of witnesses,
and the documents relied on by the Investigating agency.
28. In K. A Najeeb's case, Javed Gulam Nabi Shaikh's case, and
Jalaluddin Khan's case (supra), the Apex Court observed that the embargo
under Section 43D(5) of UA(P) Act would not curtail the powers of the
Constitutional Courts to grant bail where there is a violation of rights enshrined
under Article 21 of the Constitution of India. The learned counsel submits that, if
a speedy trial is not possible, it is obligatory on the Constitutional Court to release
the accused on bail.
29. The materials relied on by the prosecution would indicate that the
appellant has harboured the prime accused in a terrorist case, knowing well the
nature and quality of the act. He has extended all logistic support to accused
No.1 so as to screen the offender from legal punishment. The incident of hand
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chopping of Prof. T.J.Joseph was on 04.07.2010. Prof. T. J. Joseph allegedly
included blasphemous content in a question paper prepared by him for an internal
examination of Newman's College, Thodupuzha. It appears that in R.C.No.1/2011,
two trials in connection with this case were already concluded, and 19 accused
persons have been convicted. The arrest and trial of the prime accused were
delayed for several years due to the involvement of the appellant herein. In order
to prove the supplementary charge against the appellant, the prosecution relied
on the statements of 61 witnesses and 33 documents. It appears that there is a
likelihood of the trial being completed in the near future, as there are only 61
witnesses cited in the supplementary charge sheet.
30. The charge against the appellant is that he is an active cadre of the
PFI and voluntarily harboured Accused No. 1, Savad @ Shajahan, knowingly with
the intention to screen him from arrest and legal punishment. It appears that he
arranged shelter at a rented house owned by one Kunjimoosa at Chakkad, Kannur
District, where accused No. 1 stayed under the pseudo name 'Shajahan.' Further,
he arranged a job for the prime accused, Savad, as a carpenter in a shop at
Narayanpara, Kannur, and frequently visited him at both his residence and
workplace. It is also alleged that the appellant arranged meetings between Savad
@ Savadh and his parents and siblings near a mosque in Koratty, Thrissur District,
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Kerala.
31. CW1, Savad, stated to the NIA that accused No. 1 stayed in his
ancestral house from 2020 to 2022, and that the appellant frequently visited
accused No. 1. CW4 stated that accused No. 1, Savad, stayed in CW1's ancestral
house at Chakkad, and that this arrangement was made by the appellant
(Shafeer). CW5, Abdul Nasar, stated that he is the owner of the building where
CW6, Nasar, runs a carpentry shop, and that accused No. 1, Savad, had worked
there as a carpenter
32. CW6 (Nasar) stated that the appellant (Shafeer) used to visit the
shop to meet accused No.1, Savad. Likewise, CWs. 7 to 11 stated that accused
No.1 worked as a Carpenter in the shop of PW6, and appellant used to visit
accused No.1. CWs. 12 and 13 stated that the accused No.1 was arrested from
the house of Khadeeja, which was leased to accused No.1 as per the request of
the appellant.
33. On perusal of the chargesheet, the statements of witnesses, and the
documents relied upon by the prosecution, we concur with the view taken by the
learned Special Judge that there are reasonable grounds for believing that the
allegation against the accused is prima facie true. It is further noted that the
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appellant is involved in four other criminal cases, which are of a serious nature.
However, in the case on hand, the appellant has been in judicial custody for the
last 10 months and 16 days, and there is a likelihood of completion of the trial in
the near future.
34. The records would reveal that the appellant herein is involved in
four other crimes. Considering the grave and serious nature of the offences
alleged against the appellant, the criminal antecedents of the appellant, and the
facts and circumstances of the case, we are not inclined to grant bail to the
appellant.
Therefore, we do not find any good reasons to interfere with the findings
of the Special Court. The Criminal Appeal stands dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
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Sbna/
APPENDIX OF CRL.A 765/2025
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE RELEVANT PAGES OF THE
SUPPLEMENTARY CHARGE SHEET DATED
17.02.2025 IN SC NO.2/2023 OF SPECIAL
COURT FOR TRIAL OF NIA CASES, KERALA AT
ERNAKULAM
