Kerala High Court
Dr. Dinesh.D vs Union Of India on 9 September, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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Crl.Appeal No. 1367/2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 9TH DAY OF SEPTEMBER 2025 / 18TH BHADRA, 1947
CRL.A NO. 1367 OF 2025
CRIME NO.RC/02/2021 OF NATIONAL INVESTIGATION AGENCY KOCHI, ERNAKULAM
AGAINST THE ORDER DATED 09.07.2025 IN SC NO.2 OF 2021 OF SPECIAL COURT
FOR TRIAL OF NIA CASES, ERNAKULAM
APPELLANT/ACCUSED NO.4:
DR. DINESH D, AGED 34 YEARS, S/O.DHANAPALAN D, NO.1,
THULLARIMUKAM STREET, ULIYAKULAM, COIMBATORE, TAMIL
NADU- 641 045
BY ADVS.
SHRI.ABDUL KHADER KUNJU S.
SHRI.SHAIQ RASAL M.
SHRI.A AL FAYAD
RESPONDENTS/STATE:
UNION OF INDIA, REPRESENTED BY THE DIRECTOR GENERAL,
NATIONAL INVESTIGATION AGENCY, KOCHI, ERNAKULAM-682 020
ADV.O. M. SHALINA, DSGI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.08.2025, THE COURT ON 09.09.2025 DELIVERED THE FOLLOWING
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2
JUDGMENT
K. V. Jayakumar, J.
This Criminal Appeal is preferred by the 4th accused in Crl.M.P.No.281/2025
in S.C.No.2/2021 pending before the Special Court for Trial of NIA Cases,
Ernakulam. The appellant, along with others, was charged for the offences
punishable under Sections 120B, 121, 121A and 122 of the Indian Penal Code,
Sections 18, 18A, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967
['UA(P) Act', for the sake of brevity], Section 27(1)(e)(iv) of the Kerala Forest Act,
1961 and Section 7 r/w 27(2) of the Arms Act.
2. The prosecution case in brief is that, the accused, Dr. Dinesh D.,
being a member of the proscribed terrorist organisation, CPI(Maoist), convened
meeting and training camp during September 2016 in the reserve forest of Karulai
in Malappuram district with arms, including automatic rifles for the purpose of
furthering the activities of proscribed terrorist organisation, CPI (Maoist), in order
to wage war against the Government of India.
3. The case was registered on the basis of the information given by the
first accused, Kalidas, when he was arrested by the Dy.S.P, Agali on 21.09.2017 in
connection with crime No.153/2017 of Sholayur Police Station. During the
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investigation, 25 accused persons were arrested; out of them, 8 accused persons
died in different incidents, and 4 are absconding. An investigation was conducted
by the Edakkara Police by registering crime No.249/2017 against 19 persons.
Later, the case was handed over to the Anti-Terrorist Squad Police Station,
Ernakulam, and renumbered as crime No.32/2020/ATS on 19.03.2020. During the
investigation of Anti-Terrorist Squad Police Station (ATS), Kerala, seven more
accused were identified, and they were also arraigned as accused 19 to 25. Later,
the ATS filed charge sheet against five accused persons including the appellant
herein under Sections 120B, 121, 121A, 122 of IPC, Section 27(1)(e)(iv) of Kerala
Forest Act 1961, Section 7 r/w Section 27(2) of the Arms Act, Sections 18, 18A,
20, 38 and 39 of the UA(P) Act 1967. In the meanwhile, the Government of India,
as per order dated 19.08.2021, directed the NIA to take over the investigation
and the case was re-registered as S.C.No.02/2021/NIOA/KOC on 20.08.2021 and
after investigation, final report was submitted before the Special Court for the
Trial of NIA Cases, Kochi on 23.04.2022, citing 274 witnesses and more than 408
documents.
4. During the investigation, it was revealed that Crime No.536/2016
was registered by the Edakkara Police in connection with the exchange of fire
between the Maoists and the security forces on 24.11.2016, in which two Maoists
died. During the investigation of the Edakkara Police Station, various electronic
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gadgets, including laptop, pendrive, etc, were recovered from the scene of the
occurrence.
5. The learned counsel for the appellant, Sri. Abdul Khader Kunju S.,
submitted that the appellant was arrested in connection with the case on
04.02.2021 by Edakkara Police and has been in custody ever since his arrest. The
application submitted by the appellant for bail was dismissed by the Special Court
vide order dated 09.07.2025 in Crl.M.P.No.281/2025 by placing reliance on the
rigour of Section 43D(5) of the UA(P) Act. It is submitted that the appellant has
been in judicial custody for over four years and five months and is therefore
entitled to be released on bail due to the prolonged period of incarceration
without trial. The trial of the case has not yet commenced.
6. The learned counsel submitted that no prima facie case has been
established against the appellant, and that the mandatory sanction required
under Section 45(2) of the UA(P) Act was not obtained before the prosecution of
the appellant. The learned counsel further pointed out that the appellant is
suffering from serious cardiac ailments and his further detention would adversely
affect his health.
7. The learned counsel further submitted that there are 274 witnesses
and numerous documents in this matter. There is no likelihood of the trial being
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completed at any time in the near future. The prolonged incarceration of 4 years
and 5 months already undergone by the appellant and his continued detention
amounts to a violation of Article 21 of the Constitution of India. The learned
counsel has placed reliance on the judgments in Union of India v. K. A.
Najeeb1, Sheikh Javed Iqbal v. State of Uttar Pradesh2, Javed Gulam
Nabi Sheikh v. State of Maharashtra3 and Vernon v. The State of
Maharashtra4
8. The learned counsel would further submit that the 1st accused,
Kalidas, has already been enlarged on bail by this Court in Crl. Appeal No.
443/2025. Therefore, the petitioner claims bail on the ground of parity. The
learned counsel submitted that the charges as per the chargesheet against the 1st
accused and the 4th accused herein are identical.
9. A written objection has been filed by the NIA in the appeal,
contending that the appeal is not maintainable either in law or on facts and the
same is liable to be dismissed. Smt. O. M. Shalina, the learned Deputy Solicitor
General of India, submitted that the charge sheet in the present case has already
been filed after collecting sufficient and credible evidence against all the arrested
(2021)3 SCC 713
2024(8) SCC 293
2024(9) SCC 813
2023 SCC OnLine SC 885
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accused, and that charges have also been framed. She further submitted that the
trial in S.C. No. 2 of 2021 is likely to be completed within six months. The Special
Court has appreciated all the relevant laws, rulings, and procedural formalities,
while pronouncing the order against the bail application of the applicant. It is
contended that the investigation revealed that the appellant being a member of
the proscribed terrorist organisation, CPI (Maoist), conspired with co-accused
inside deep reserve forest of Malappuram District of Kerala at different occasions
in the year 2016 for conducting and participating in physical and arms training so
as to commit terrorist acts and to wage war against the Government of India and
had collected arms and men and abetted the waging of war. The appellant also
possessed various documents related to CPI (Maoist) and its frontal organizations
for furthering the activities of CPI (Maoist).
10. The learned DSGI has placed reliance on the judgment of this Apex
Court in Harpreet Singh Talwar @ Kabir Talwar v. The State of Gujarat5
and held that mere incarceration for a long period cannot be considered as a
ground for pre-trial release of an accused. It is further submitted that the
appellant's plea for pre-trial bail on the ground of parity with the first accused,
Kalidas, is irrelevant, as the said accused had undergone judicial custody for a
period of eight years, whereas the appellant has been in custody for
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approximately four years and five months. The appellant is involved in multiple
serious cases registered under stringent provisions of law, which indicate a
continuous pattern of unlawful and terror-related activities. It is contended that
granting bail to the appellant would pose a serious threat to public peace and
national security.
11. We have carefully considered the submissions of the learned counsel
for the petitioner and the learned DSGI.
12. On a perusal of records, it is evident that the appellant/4th accused
was arrested on 04.02.2021 and has been in judicial custody for the past four
years and five months. Although the learned Special Judge has framed charges in
S.C. No. 2 of 2021, the trial has not yet commenced.
13. The Apex Court has categorically held, in a catena of decisions, that
when the precious right of an accused under Article 21 of the Constitution is
infringed due to prolonged incarceration, the restriction on bail envisioned in
Section 43D(5) of UA(P) Act would not be a bar for the Courts to grant bail to the
accused. In Najeeb (supra), the Apex Court has laid down the legal principles in
paragraphs 17, 18 and 19 of the judgment which reads as under:
"17. It is thus clear to us 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
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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 commencement of proceedings, the courts are expected to
appreciate the legislative policy against grant of bail but the
rigours of such provisions will melt down where there is no
likelihood of trial being completed within a reasonable time and
the period of incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an approach
would safeguard against the possibility of provisions like Section
43-D(5) of the UAPA being used as the sole metric for denial of
bail or for wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact
that the charges levelled against the respondent are grave and a
serious threat to societal harmony. Had it been a case at the
threshold, we would have outrightly turned down the
respondent's prayer. However, keeping in mind the length of the
period spent by him in custody and the unlikelihood of the trial
being completed anytime soon, the High Court appears to have
been left with no other option except to grant bail. An attempt
has been made to strike a balance between the appellant's right
to lead evidence of its choice and establish the charges beyond
any doubt and simultaneously the respondent's rights guaranteed
under Part III of our Constitution have been well protected.
19. Yet another reason which persuades us to enlarge the
respondent on bail is that Section 43-D(5) of the UAPA is
comparatively less stringent than Section 37 of the NDPS Act.
Unlike the NDPS Act where the competent court needs to be
satisfied that prima facie the accused is not guilty and that he is
unlikely to commit another offence while on bail; there is no such
precondition under UAPA. Instead, Section 43-D(5) of the UAPA
merely provides another possible ground for the competent court
to refuse bail, in addition to the well-settled considerations like
gravity of the offence, possibility of tampering with evidence,
influencing the witnesses or chance of the accused evading the
trial by absconsion, etc."
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14. In paragraph 42 of Sheikh Javed Iqbal (supra), the Apex Court
observed as under:
"42. This Court has, time and again, emphasised that right to
life and personal liberty enshrined under Article 21 of the
Constitution of India is overarching and sacrosanct. A constitutional
court cannot be restrained from granting bail to an accused on
account of restrictive statutory provisions in a penal statute if it
finds that the right of the accused-undertrial under Article 21of the
Constitution of India has been infringed. In that event, such
statutory restrictions would not come in the way. Even in the case
of interpretation of a penal statute, howsoever stringent it may be,
a constitutional court has to lean in favour of constitutionalism and
the rule of law of which liberty is an intrinsic part. In the given
facts of a particular case, a constitutional court may decline to
grant bail. But it would be very wrong to say that under a
particular statute, bail cannot be granted. It would run counter to
the very grain of our constitutional jurisprudence. In any view of
the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3
SCC 713] being rendered by a three-Judge Bench is binding on a
Bench of two Judges like us."
15. The Apex Court in Javed Gulam Nabi Sheikh (supra) has
emphasized that when a speedy trial is denied to an accused who has suffered
prolonged incarceration, the rigorous restriction on the grant of bail with penal
statutes would not be a bar for the constitutional court to grant bail.
16. We find that the trial has not yet commenced in this case. There
are 274 witnesses, numerous documents and material objects. The 1st accused in
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the instant case, Sri Kalidas, was enlarged on bail by this Court in Crl. Appeal
No.443/2025. In paragraph 11 of the judgment in Kalidas @ Sekhar @ Mani v.
Union of India6, this court had observed as under:
"11. Be that as it may, the accusation against the appellant as
contained in paragraph 18.1 of the final report reads thus:
"That, the accused Kalidas @ Sekhar @ Mani @ Thyagu @
Ramachandra @RC (A - 1), being a District Committee member of
the proscribed terrorist organisation CPI (Maoist) and the
Commander of the Shiruvani Dalam (Squad) of CPI (Maoist)
organisation, active in Tri - Junction of Kerala, Karnataka and Tamil
Nadu, conspired with co - accused inside deep reserve forest of
Malappuram District of Kerala, during different occasions in the
year 2016, for conducting and participating in physical and arms
training so as to commit terrorist acts and to wage war against the
Government of India, collected arms and men and abetted waging
war. Being a member of proscribed terrorist organisation CPI
(Maoist) which is involved in terrorist acts and also being an in -
charge of the training camp of CPI (Maoist), he along with co -
accused trespassed into the reserve forest of Malappuram District
in Kerala and actively participated in the physical and arms training
using prohibited arms, in the period between last week of May
2016 to last week of September 2016, to strengthen the proscribed
terrorist organisation CPI (Maoist) with intention to commit terrorist
acts for furthering the activities of CPI (Maoist) and thereby to
wage war against the Government of India."
As revealed from the extracted passage, the accusation against the
appellant, in essence, is that he has participated in physical and
arms training so as to commit terrorist acts and to wage war
against the Government of India as also collected arms and men
and abetted waging war against the Government of India. The
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particulars of the evidence stated to have been collected by the
Investigating Agency as narrated in the written objection, if true,
would make the allegations more serious. On a specific query by
this court as to whether there are any allegations against the
appellant in any of the cases registered against him that he
participated in any armed rebellion, the answer of the learned
Additional Solicitor General was in the negative. As noted in
Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616,
referred to by this Court in Nassar, the Apex Court has observed
that a pragmatic and constitutionally sensitive approach has to be
taken where an undertrial is deprived of personal liberty for an
extended period and that there is no reasonable prospect of the
trial concluding within a reasonable time frame. It was also
observed by the Apex Court in Shaheen Welfare Assn. that where
undertrials are not directly accused of engaging in any terrorist
acts, but are instead booked under S.120B IPC, or booked merely
on the ground that they are found in possession of incriminating
materials, a lenient view has to be taken. Similarly, as already
mentioned, S.43D(5) of the UAPA does not by itself bar
constitutional courts from granting bail, especially when the
continued detention amounts to violation of the rights guaranteed
under Part III of the Constitution of India. In Sk. Javed Iqbal, the
Apex Court has held that bail cannot be denied in such cases on
the ground that the charges are serious."
17. We do not find any reason why the principles laid down in Kalidas
(supra) cannot be applied to the appellant. The reason why the learned Sessions
Judge rejected the application despite him having been in custody for over four
years is on the ground that the release of bail on account of prolonged
incarceration can only be granted by the Constitutional Courts.
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18. In Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat
and Anr.7, the Apex Court has observed as under in Paragraphs 17 and 18
of the judgment:
"17. Article 21 of the Constitution of India makes it clear that
the procedure in criminal trials must, after the seminal decision in
Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248] , be "right, just and fair and not
arbitrary, fanciful or oppressive" (see para 7 therein). Equally, in
Commr. of Police v. Delhi High Court [Commr. of Police v. Delhi
High Court, (1996) 6 SCC 323 : 1996 SCC (Cri) 1325] , it was
stated that Article 21 enshrines and guarantees the precious right
of life and personal liberty to a person which can only be deprived
on following the procedure established by law in a fair trial which
assures the safety of the accused. The assurance of a fair trial is
stated to be the first imperative of the dispensation of justice.
18. It is clear that a fair trial must kick off only after an
investigation is itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually committed a
crime are correctly booked, and those who have not are not
arraigned to stand trial. That this is the minimal procedural
requirement that is the fundamental requirement of Article 21 of
the Constitution of India cannot be doubted. It is the hovering
omnipresence of Article 21 over CrPC that must needs inform the
interpretation of all the provisions of CrPC, so as to ensure that
Article 21 is followed both in letter and in spirit."
19. Having regard to the fact that the appellant has been in
incarceration for approximately four years and five months, and noting that the
2019 (17) SCC 1
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trial has not yet commenced, coupled with the substantial number of
witnesses--about 274 in total--and numerous exhibits to be examined, it is
evident that the completion of the trial in the near future is highly improbable. In
these circumstances, any further incarceration of the appellant would amount to a
violation of the fundamental right to life and personal liberty guaranteed under
Article 21 of the Constitution of India. Furthermore, it is pertinent to note that the
1st accused in the same case was granted bail by this Court vide judgment dated
11.04.2025 in Crl. Appeal.No. 443/2025, and the charges against the 1st accused
and the appellant are identical in nature. The 5th accused was also enlarged on
bail by this Court as per the judgment dated 14.08.2025 in Crl. Appeal
No.1172/2025.
20. In view of the discussion above, the impugned order passed by the
learned Special Court refusing bail to the appellant is set aside. Crl.A.No. 1367 of
2025 is allowed. The appellant shall be released on bail on 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:
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a) The appellant shall remain in the Revenue District of Ernakulam till
the trial is over.
b) The appellant shall furnish to the Investigating Officer of the NIA, his
place of residence in the State.
c) The appellant shall report before the investigating officer, NIA, on
every Saturday and Wednesday between 10 a.m. and 11 a.m. till the
end of the trial. However, it would be open for the appellant to seek
modification before the Trial Court, and if any such application is filed,
the same shall be considered on its merits and appropriate orders
shall be passed.
d) The appellant shall use only one mobile number during the period of
bail and shall communicate the said number to the Investigating
Officer of the NIA. He 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 appellant shall not tamper with evidence or attempt to influence
or threaten any witnesses in any manner.
f) The appellant shall not engage in or associate with any activity that is
similar to the offence alleged against him or commit any offence while
on bail.
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
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the appellant before the Special Court, notwithstanding the fact that the bail was
granted by this Court. Upon such an 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/-
K.V. JAYAKUMAR,
JUDGE
Sbna/
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PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE JUDGMENT IN CRL. A NO. 443 OF
2025 ON THE FILES OF THE THE HIGH COURT OF KERALA
Annexure A2 TRUE COPY OF THE ORDER IN BA NO. 8537 OF 2021
DATED 23/12/2021 ON THE FILES OF THE THE HIGH
COURT OF KERALA
