Syam Kumar V.M., J.
1. The appellants before us impugn the orders passed by the Special Court for the Trial of NIA Cases, Ernakulam, in S.C.No.02/2023/NIA/KOC, dismissing the bail application preferred by them under Section 439 of the Code of Criminal Procedure, by relying on the provisions of Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 [hereinafter referred to as the “UA (P) Act”].
2. Brief facts necessary for the consideration of these appeals are as follows:
On 16.04.2022, an RSS worker Srinivasan, was murdered at Melamuri Junction in Palakkad Town in Kerala, allegedly by members of the Popular Front of India [PFI] cadres. An FIR No.318/2022 dated 16.04.2022 was registered at Palakkad Town South Police Station under Sections 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w with 149 of the Indian Penal Code and Section 3(a)(b)(d) r/w with 7 of the Religious Institutions (Prevention of Misuse) Act, 1988. Pursuant to the investigation conducted in the said case, 51 persons were arraigned as accused by the State and 44 among them were arrested. Thereafter, based on an order dated 16.09.2022 passed under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008 which in turn based itself on the information received by the Central Government that the office bearers and cadres of PFI and its affiliates in Kerala have conspired to instigate communal violence and radicalise its cadres to commit terrorist acts in the State of Kerala and various other parts of the country, lodged FIR No.RC-02/2022/NIA/KOC dated 19.09.2022 at the NIA Police Station, Kochi against the same accused, under Sections 120B and 153A of the IPC read with Sections 13, 18, 18B, 38 and 39 of the UA (P) Act. Subsequently, on 28.09.2022, the Central Government declared PFI as an unlawful Association.
3. NIA filed the respective charge sheets before the Special Court, and the appellants/accused preferred their applications under Section 439 of the Cr.PC seeking bail. The Special Court rejected their bail applications. These appeals are filed impugning the Orders of the Special Court rejecting their bail applications.
4. We have heard Sri.Renjith B. Marar, the learned counsel for the appellants/accused and the learned Senior Counsel Sri. Sasthamangalam S. Ajithkumar for the prosecution.
5. At the outset we note that certain other accused in the very same S.C.No.02/2023/NIA/KOC pending before the Special Court for the Trial of NIA Cases, Ernakulam, had moved this Court earlier challenging similar orders of dismissal of their bail applications by the Special Court. The said appeals were considered and disposed of by this Court vide common judgment dated 25.06.2024 in Crl.A.Nos.1441 and 1600 of 2023, 139, 619, 620, 623, and 628 of 2024. In the said common judgment, this Court had after a survey of the dictum laid down in Kaushal Kishor v. State of U.P. and others [(2023) 4 SCC1], National Investigation Agency v. Zahoor Ahmad Shah Watali - [2019 KHC 6384], Thwaha Fasal and another v. Union of India and Another - [2021 (6) KHC 228], Union of India v. K.A. Najeeb - [AIR 2021 SC 712], Vernon v. State of Maharashtra – [2023 KHC 6743], Union of India v. Barakathullah – [2024 KHC OnLine 6313], Amar Singh Yadav and another v. Shanti Devi and Others- [AIR 1987 Pat 191 (FB)]; UOI v. K.A. Najeeb – [(2021) 3 SCC 713]; Shoma Kanti Sen v. State of Maharashtra - [2024 KHC 6182]; Gurwinder Singh v. State of Punjab and another – [(2024) SCC Online SC 109] culled out the essential principles that ought to be borne in mind while considering bail applications wherein there is an interplay of Section 439 of the Cr. P.C. and Section 43D (5) of the UA(P) Act. The guiding principles enumerated in the said judgment are as follows:
• That the liberty of a citizen is put at a very high pedestal in our country, and that treatment flows from the mandate of Article 21 of our Constitution;
• That the right to a fair trial is an integral aspect of the right under Article 21 and, save in exceptional circumstances where a statutory restriction operates if an accused is not enlarged on bail prior to his trial, he will not be in a position to effectively defend himself at the trial;
• That there is a cardinal presumption of innocence working in favour of an accused under our laws, which is dislodged only when the accused is found guilty of the offence beyond reasonable doubt, and convicted by a court of competent jurisdiction;
• That pre-trial detention is not meant to be punitive in its effect;
• That for determining whether there are reasonable grounds for believing that the accusation against the accused person is prima facie true, we have to peruse the materials forming part of the charge sheet against the accused, and record a broad finding, on the basis of broad probabilities, regarding the involvement of the accused in the commission of the stated offence or otherwise.
• That the degree of satisfaction to be recorded by the court, for opining that there are reasonable grounds for believing that the accusation is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the UA (P) Act.
• That while examining the materials relied upon to support the allegation of terrorism-related offences against the accused, the court has to guard against ideological biases and false narratives that are prevalent in society. Further, while arriving at the belief that the accusation against the accused person is prima facie true, the court has to lean in favour of the fundamental rights of the accused and not in favour of the restrictions that can be imposed on those rights.
• That, in the event we find that there are no reasonable grounds for believing that the accusation against the accused person is prima facie true, a balancing has to be done between (i) the need to give the investigating authorities a reasonable time to complete their investigation after taking note of the stage of investigation and the materials obtained by them, (ii) the possibility of the accused tampering with the evidence or witnesses, and (iii) the likelihood of the accused fleeing from justice.
In the said judgment, this Court also summarized the major premises on which such bail applications are to be entertained and disposed of, which reads as follows:-
29. Proceeding thus, we feel that it is only in respect of those appellants/accused, against whom the material relied upon by the prosecution, when taken as a whole, crosses the threshold of ‘general allegations coupled with overt acts that would clearly suggest the complicity of the accused in the offence with which he is charged’, that we can say with any degree of conviction that there are reasonable grounds for believing that the accusation against that person is prima facie true. In other words, there has to be some corroborative material, other than mere statements of witnesses, to show that there were overt acts or acts of active participation by the appellants/accused, such as authorship of offensive documents and/or speeches, in order to deny them bail.
30. In the case of those persons against whom the material relied upon by the prosecution comprises only of statements of witnesses and/or documents and material objects that cannot be attributed to them in any manner, we will have to enlarge them on bail, more so because we find that the appellants/accused before us have suffered incarceration for over a year, and in many cases more than two years, and it is very unlikely that the trial in their cases will be concluded in the near future.
6. With the said normative guidance in mind, we now proceed to consider the sustainability of the Orders passed by the Special Court rejecting the bail applications of the appellants in the backdrop of the charges and evidence mustered against each of the appellants/accused in these appeals. In the paragraphs that are to follow, we have narrated the charges levelled against each of the appellants/accused, the objections raised by the prosecution to the grant of bail to them, the material relied upon by the prosecution to justify their objection, and our reasons for the grant/denial of bail to them.
7. Crl.A.No.1593 of 2024:
Appellant- Kajahussain @ Robot Kaja (A-30 now A-26)
Charge : a) That, the accused Kajahussain @ Robot Kaja (A-30) being a member and 'Reporter' 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, 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 his white Activa Scooter having Regn. No. KL-09-AK-6726 to Noushad (A-53) and Basheer (A-54) on 15.4.2022 for conducting recce of targets to eliminate and also provided the same vehicle to A-20 (identifiable person) and Abdul Khader (A-21) on 16.4.2022 for committing terrorist act of murdering Srinivasan. He confirmed the presence of victim Srinivasan at Melemuri, Palakkad on 16th April, 2022 and communicated to Aboobacker Siddique (A-57) who communicated the same to Abdul Rasheed (A-28) and CA Rauf (A-12) based on which assailants located the victim Srinivasan and committed terrorist act on 16.4.2022 by murdering him. He committed acts prejudicial to the maintenance of harmony between different religious groups and has disturbed the public tranquillity in the State at large.
b) That, the accused Kajahussain @ Robot Kaja (A-30) along with 43 other co-accused were already charge sheeted by Kerala Police in connected offence in Crime No. 318/2022 of Palakkad Town South Police Station under section 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w 149 of IPC and Section 3(a)(b)(d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988, wherein, the offence committed by Kajahussain @ Robot Kaja (A-30) in the said connected offence has been enumerated in detail in that charge-sheet.
c) Therefore, accused Kajahussain @ Robot Kaja (A-30) committed offences punishable under sections 153A of IPC and sections 13, 16, 18 & 20 of UA (P) Act along with additional offences under section 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w 149 of IPC and Section 3(a)(b)(d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 as charge sheeted by the Kerala Police in connected offence in Crime No. 318/2022 of Palakkad Town South Police station.
Objection:
(i) Accused Kajahussain @ Robot Kaja (A-30, now A-26) the petitioner herein, is 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, and being a member of terrorist gang, he attended conspiracy meetings at Palakkad on 15th and 16th of April 2022 for committing terrorist act of murder of Srinivasan on 16.04.2022 by PFI cadres. The Statements of Protected Witness 25, 36 and 38, clearly stated about the presence of accused Kajahussain @ Robot Kaja (A-30, now A-26) the petitioner herein, in the criminal conspiracy on 15.04.2022 at 22.00 Hrs along with the assailants Abdu Rahman (A- 18, now A-17), Muhammed Manzoor (A-23, now A-21), Bilal (A-24, now A-22), PFI leaders Yahiya Koya Thangal (A-11), CA Raoof (A-12), Ameer Ali (A-60, now A-55), Aboobacker Sidik (A-57, now A-5), and other accused near the mortuary gate of District Hospital Palakkad and Khabaristhan near to there. Protected Witness 22 and 36, CW-37 and CW-38 are clearly stated about the presence of accused Kajahussain @Robot Kaja (A-30, now A-26) the petitioner herein, at the place of criminal conspiracy along with the assailants Ummar @ Manu (A19, now A-18), Iqbal (A-21, now A-19), Muhammed Manzoor (A-23, now A- 21), Riyasudeen (A-26, now A-24), PFI leaders CT Sulaiman (A-14), Mujeeb (A-7), Ansari (A-6), Abdul Vahab (A-15), and other accused at the vacant Place behind District Hospital, Palakkad on the noon of 16.04.2022 (i.e, just one hour before the murder of Srinivasan). Protected Witness -37 also seen the movement of assailants from the conspiracy place to scene of crime by motor cycles.
(ii) Approver Aboobacker Siddik (A-52) clearly stated that "The plan was to kill anyone. The decision to kill Srinivasan was taken while at hospital premises and behind the hospital. The place near Khabrishtan (Cemetery) where accused Kajahussain Robot Kaja (A-30, now A-26) the petitioner herein, assailants Abbu Rahman @ Adru (A-17), Ummar T (A-18), Muhammed Mansoor (A-21) Muhammed Bilal (A-22) and others conspired and from where the accused further proceeded to recce the target to eliminate, on 15.4.2022 has been disclosed and pointed out by the accused Muhammed Bilal (A-22) vide disclosure cum scene mahazar dated 22.4.2022 (D-16). Based on the disclosure of the accused Muhammed Riswan @ Riswan (A-42) regarding the conspiracy place where PFI leaders and cadres including Kajahussain @ Robot Kaja (A-30, now A-26), the petitioner herein conspired and decided to murder Srinivasan on 16.4.2022, scene mahazar (D-13) has been prepared on 22.4.2022, at a vacant land near District Hospital Palakkad.
(iii) Accused Kajahussain @ Robot Kaja (A-30, now A-26), the petitioner herein, confirmed the presence of victim Srinivasan at Melemuri, Palakkad on 16th April, 2022 and communicated to Aboobacker Siddique (A-57, now A-52) who communicated the same to Abdul Rasheed (A-28) and CA Rauf (A-12) based on which assailants located the victim Srinivasan and committed terrorist act on 16.4.2022 by murdering him. -(Statement of approver Aboobacker Siddik and CDR location and contacts of the petitioner - D-522, D-523, D-562,D-1441, D-1442,1451).
(iv) Approver Aboobacker Siddik (A-57) clearly stated that "an attempt was made at Ottappalam in the morning on 16th April. That attempt also failed. As the attempt failed on 16th, a deliberate delay made to take Subair's body. I entrusted Kaja Hussain @ Robot Kaja to locate Srinivasan. I handed over the information regarding the location of Srinivasan received from Kaja Hussain to CA Rauf and Rasheed. The CDR location and contacts of Mobile No.9746873199 of accused Kajahussain @ Robot Kaja (A-30, now A-26), the petitioner herein, on 16.04.2022 between 06.31.08 hrs to 06.47.35 hrs (D-522, D-523, D-562,D-1441, D-1442,1451) clearly established that he had located and confirmed the presence of victim Srinivasan at Melemuri, Palakkad on 16th April, 2022 and communicated to Aboobacker Siddique (A-57) who communicated the same to Abdul Rasheed (A-28) and CA Rauf (A-12) based on which assailants located the victim Srinivasan and committed terrorist act of murder of Srinivasan on 16.4.2022.
(v) Accused Kajahussain @ Robot Kaja (A-30, now A-26), the petitioner herein, provided his white Activa Scooter having Regn No. KL-09-AK- 6726 to Noushad (A-53, now A-48) and Basheer (A-54, now A-49) on 15.4.2022 for conducting recce of targets to eliminate and also provided the same vehicle to A-20 (identifiable person) and Abdul Khader (A-21. now A-19) on 16.4.2022 for committing terrorist act of murdering Srinivasan. - The Statement of CW-31 established the user of vehicle KL-09 AK-6726 scooter which was used by assailants for travel belongs to the accused Kajahussain @ Robot Kaja (A-30, now A-26), the petitioner herein. The said motor cycle Activa KL-9-AK-6726 has been recovered based on the disclosure of assailant Abdul Khader@ Iqbal (A-21, now A-19) vide recovery mahazar dated 25.04.2022 (Doc-26).
8. Crl. A. No.1198 of 2024
Appellant: Jaleel P. (A66 now A-59)
Charge: a) That, the accused Jaleel P (A-66) being 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. In furtherance to the larger conspiracy, he attended the 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 resulted in the murder of Srinivasan on 16.04.2022 by PFI cadres. In furtherance to the conspiracy, he knowingly and intentionally harboured Khaja Hussain (A-30), in his house, after commission of the terrorist act. He committed acts prejudicial to the maintenance of harmony between different religious groups and has disturbed the public tranquility in the State at large.
b) That, the accused Jaleel P (A-66) along with 43 other co-accused were already charge sheeted by Kerala Police in connected offence in Crime No. 318/2022 of Palakkad Town South Police Station under section 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w 149 of IPC and Section 3(a)(b)(d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988, wherein, the offence committed by Jaleel P (A-66) in the said connected offence has been enumerated in detail in that charge-sheet.
c) Therefore, accused Jaleel P (A-66) committed offences punishable under sections 153A of IPC and sections 13,18 & 20 of UA (P) Act along with additional offences under section 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w 149 of IPC and Section 3(a)(b)(d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 as charge sheeted by the Kerala Police in connected offence in Crime No. 318/2022 of Palakkad Town South Police station.
Objection:
(i) Investigation revealed that, the accused Jaleel P (A-66, now A- 59), the appellant herein, being 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. In furtherance to the larger conspiracy, he attended the 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 resulted in the murder of Srinivasan on 16.04.2022 by PFI cadres. In furtherance to the conspiracy, he knowingly and intentionally harboured Khaja Hussain (A-30), in his house, after commission of the terrorist act. He committed acts prejudicial to the maintenance of harmony between different religious groups and has disturbed the public tranquillity in the State at large. Therefore, final report against accused Jaleel P (A-66, now A-59), the appellant herein, has been filed for the committed offences punishable under sections 153A of IPC and sections 13,18 & 20 of UA (P) Act along with additional offences under section 120B, 34, 118, 119, 109, 115, 143, 144, 147, 148, 449, 341, 201, 212, 302 r/w 149 of IPC and Section 3(a)(b)(d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 as charge sheeted by the Kerala Police in connected offence in Crime No. 318/2022 of Palakkad Town South Police station.
(ii) As regards para 1 of the criminal appeal, it is submitted that, the accused Jaleel P (A-66, now A-59), the appellant herein, is accused No. 66 in NIA case RC-02/2022/NIA/KOC and is renumbered as accused No. 59 in SC-02/2023/NIA pending before the Hon'ble Special Court of NIA cases Emakulam. On completion of investigation against A-1 to A-14, A-16 to A-19, A- 21 to A-26, A-29 to A-40, and A-42 to A-63 and A-66, final report has been filed against above mentioned 59 accused, including the appellant herein, by NIA, on 17.03.2023, under sections 120B, 34, 109, 115, 118, 119, 143, 144, 147, 148, 449, 153A, 341, 302, 201, 212 r/w 149, 120B r/w 302 of IPC, section 3(a), (b), (d) r/w 7 of the Religious Institutions (Prevention of Misuse) Act, 1988, sections 13, 16, 18, 18A, 18B, 20, 22C, 23, 38 & 39 of UA (Prevention) Act and section 25 (1) (a) of Arms Act, before the Hon'ble Special Court for NIA cases Ernakulam and the Hon'ble Court taken cognizance and numbered as SC-02/2023/ΝΙΑ.
9. Crl.A.No.1591 of 2024
Appellant: Shihab P. @ Babu (A-68, now A-61)
Charge: That, the accused Shihab P@ Babu (A-68), being the active cadre/PE trainer of PFI and branch president of SDPI Aravangara Branch, knowingly and intentionally became a part of the larger conspiracy of PFI to enact their "India 2047" agenda of establishing Islamic Rule in India. In furtherance to the conspiracy, he knowingly and intentionally became a member of terrorist gang, organised and imparted Arms and Physical training to the cadres of PFI at Green Valley campus at Manjeri, Malappuram and other places at Malappuram on various occasions in last several years as a preparation for committing terrorist acts for PFI. In furtherance to the larger conspiracy, he attended conspiracy meeting held at Palakkad on 16th of April 2022 for committing terrorist act of murdering any available Hindu Leader with the intention of creating terror in the minds of the Hindu community and among public at large which has resulted in the murder of Srinivasan on 16.04.2022 by PFI cadres. He further conspired with accused Noushad M (A-63) on 16.4.2022 at Palakkad, harboured the accused Muhammed Hakkeem K (A-40) and others, in his residence after the terrorist act of murder of Srinivasan. He also committed acts prejudicial to the maintenance of harmony between different religious groups and has disturbed the public tranquility in the State at large.
Therefore, accused Shihab P @ Babu (A-68) committed offences punishable under Sections 120B, 153A, 120B r/w.302, 212 of IPC, Sections 13, 18, 19 & 20 of UA(P) Act.
Objection:
(i). Accused Shihab P@ Babu (A-68, now A-61), the petitioner herein, is the Unit Secretary of PFI Aravangara Unit, Malappuram. The Statements of Protected Witness-55, 56, 57, 58, CW-853 and 854, the PFI posts, images etc. found in his Social media data (Doc-1572). established that the petitioner is an active cadre of PFI and Unit Secretary of PFI Aravangara Unit, Malappuram. His social media data also established his association and position in SDPI.
(ii) Accused Shihab P @ Babu (A-68, now A-61), the petitioner herein, is a Master arms trainer of PFI. Protected witness-55, 56, 57 & 58 stated that Shihab @ Babu (A-68, now A-61), the petitioner herein is the Master PE trainer imparting arms training to the cadres of PFI at Green Valley at Manjeri, Malappuram. Protected witness-57 and 58 also stated that Shihab @ Babu (A-68, now A-61), the petitioner herein, was the PE trainer of Aravangara Unit. Protected witness-58 has also stated that Shihab @ Babu (A-68, now A-61), the petitioner herein, imparted arms training to him at Green Valley at Manjeri, Malappuram. It is pertinent to note that the Green Valley Academy' is one of the arms training Centre of the PFI in Kerala and the same has been attached u/s 25 of UAP Act as 'proceeds of terrorism and confirmed by the Designated Authority. The CDR (Doc-1562) location of the accused Shihab P@ Babu (A-68, now A-61), the petitioner herein also established his presence at 'Green Valley Academy on various occasions.
(iii) Accused Shihab P@ Babu (A-68, now A-61), the petitioner herein, attended conspiracy meeting held at Palakkad on 16th of April 2022 for committing terrorist act of murder of Srinivasan on 16.04.2022. Protected witness-55, 56 & 57 stated that Shihab @ Babu (A-68, now A-61), the petitioner herein participated in the conspiracy meeting with other leaders and cadres of PFI at Vacant land near the District Hospital Palakkad on 16.4.2022 at noon (i.e., just one hour before the murder of Srinivasan). They +also stated that after that meeting Shihab @ Babu (A-68, now A-61), the petitioner herein, told them that retaliation will be made today itself and plan for that has been made. The CDR (Doc-1562 &1574) location of the accused Shihab P @Babu (A-68, now A-61), the petitioner herein also established his presence at 'conspiracy place on 16.4.2022. Approver Aboobacker Siddik (A-52) clearly stated that 'The plan was to kill anyone. The decision to kill Srinivasan was taken while at hospital premises and behind the hospital.’ Based on the disclosure of the accused Muhammed Riswan @ Riswan (A-42) regarding the conspiracy place where PFI leaders and cadres including Shihab P @Babu (A-68, now A-61), the petitioner herein conspired and decided to murder Srinivasan on 16.4.2022, scene mahazar (D-13) has been prepared on 22.4.2022, at a vacant land near District Hospital, Palakkad.
(iv) Accused Shihab @ Babu (A-68, now A-61), the petitioner herein further conspired with accused Noushad M (A-63) on 16.4.2022 at Palakkad, harboured the accused Muhammed Hakkeem K (A-40) and others, in his residence after the terrorist act of murder of Srinivasan.- Protected witness - 55, 56 & 57 stated about the secret meeting of Shihab @ Babu (A-68, now A-61), the petitioner herein with accused Noushad M (A-63, now A-58) near a masjid at Para, Palakkad on 16.4.2022 evening. The CDR (Doc-1562 & 1574) location of the accused Shihab P @Babu (A-68, now A-61), the petitioner herein also established his presence at 'conspiracy place on 16.4.2022.
(v) Protected witness-29 stated that Noushad M (A-63, now A-58), taken him with accused Muhammed Hakeem (A-40, now A-36) to the house of accused Shihab @ Babu (A-68, now A-61), the petitioner herein, at Malappuram and accused Shihab @ Babu (A-68, now A-61), harboured Muhammed Hakeem (A-40, now A-36) in his own house in May 2022. He also stated that the nick name of Shihab is Babu. Protected witness - 58 stated that Shihab @ Babu (A-68, now A-61), the petitioner herein told him that the accused Muhammed Hakeem (A- 40, now A-36) has been harboured by him in his house and requested him to arrange a job for Muhammed Hakeem (A-40, now A-36). He also stated that Shihab @ Babu (A-68, now A-61) instructed him to call Muhammed Hakeem (A-40, now A-36) as Safwan. He also stated that he along with Shihab @ Babu (A-68, now A-61) taken accused Muhammed Hakeem (A-40, now A-36) to the car work shop of CW-418 where CW-846, CW-847, CW-848 are also working, and made job arrangement to accused Muhammed Hakeem (A-40, now A-36) there. He also stated that after few days, he along with Shihab @ Babu (A-68, now A-61) arranged accommodation for Muhammed Hakeem (A-40, now A-36) in a rented accommodation of CW-417 at Pookottur. He also stated that he arranged bus ticket for Muhammed Hakeem (A-40, now A-36) in the name of Safwan on 14.12.2023 from Malappuram to Madurai for providing safe shelter to Muhammed Hakeem (A-40, now A-36) at Ervadi, at the behest of the petitioner. The ticket fare was received by him from Shihab @ Babu (A-68, now A-61). The bank account statement (D-1580) of Protected witness PW-58 clearly established the receipt for Rs. 1000/- from accused Shihab @ Babu (A-68, now A-61) on 16.12.2022 with reference
"UPI/CR/235010787063/ Shihab/okic/ Shihabnp1172 @okicici/UPI" for the arrangement of bus ticket for travel of accused Muhammed Hakeem (A-40, now A-36) for shifting him to further safe shelter. The message related to booking of ticket is also recovered from the mobile phone (MO-676) of Protected witness PW-58, seized on 14.12.2023 (Protected document-53).
(vi). CW-418, CW-846, CW-847, CW-848-stated that accused Muhammed Hakeem (A-40, now A-36) was taken to the motor vehicle work shop at Moochickal where they works, by Shihab @ Babu (A-68, now A-61), the petitioner herein, and wherein accused Muhammed Hakeem (A-40, now A-36) worked there in the pseudonym Safwan. CW-846, CW-847, CW-848 also stated that Shihab @ Babu (A-68, now A-61) the petitioner herein, used to visit their work shop to see Muhammed Hakeem (A-40, now A-36).
(vii). CW-417- stated that accused Muhammed Hakeem (A-40, now A-36) was taken to his rented house at Pookottur, by accused Shihab @ Babu (A-68, now A-61), the petitioner herein, and arranged accommodation to accused Muhammed Hakeem (A-40, now A-36) where Muhammed Hakeem (A-40, now A-36) stayed for about 3 months. Based on the disclosure of the accused Shihab @ Babu (A- 68, now A-61), disclosure cum pointing out proceedings (Doc-1570) has been prepared at rented house at Pookottur on 29.10.2023 where he had further harboured accused Muhammed Hakeem (A-40, now A- 36).
(viii) Based on the disclosure of accused Muhammed Hakeem (A-40, now A-36), disclosure cum scene mahazar (Doc-539) has been prepared in the house of Shihab @ Babu (A-68, now A-61), on 28.12.2022, where the accused Muhammed Hakeem (A-40) was harboured. Based on the disclosure of the accused Shihab @ Babu (A-68, now A-61), disclosure cum pointing out proceedings (Doc-1571) has been prepared at his house on 29.10.2023 where he had harboured accused Muhammed Hakeem (A-40, now A-36). The Residential and ownership certificate (D-574 & 575) also proves that the house where accused Muhammed Hakeem (A-40, now A-36) was harboured is owned and possessed by the petitioner.
(ix). It is pertinent to note that the accused Muhammed Muhammed Hakeem (A-40, now A-36) whom the petitioner harboured is charged under sections 120B, 34, 153A, 201 & 120B r/w 302 of IPC and sections 13, 18 & 20 of UA (P) Act.
10. It is against the backdrop of the charges and the material discussed above that we have applied the principles enumerated in the earlier paragraphs of this judgment to the case of each of the appellants before us. We have kept in mind the mandate of the Constitution and weighed the prima facie worth of the accusations made against each of the appellants/accused separately with a view to determining whether there exist reasonable grounds to believe that the accusations against them are prima facie true. We have also taken note of the contention of the learned counsel for the appellants that such an exercise was not undertaken by the Special Court that dismissed their bail applications.
11. We now proceed to consider the merits of each appeal individually and to test the correctness of the Special Court’s Orders dismissing the appeals.
Crl.Appeal of Kaja Hussain @ Robot Kaja (A30, now A-26)
12. The bail application preferred by the appellant in Crl.A.No.1593 of 2024 Kaja Hussain @ Robot Kaja (A30, now A-26) was resisted by the agency by placing before us materials including the final report prepared under Section 173 of the Cr.P.C. which inter alia states that the appellant acted as the spotter and he had confirmed the presence of the victim Srinivasan at Melemuri, Palakkad on 16th April 2022 and communicated the same to Aboobacker Siddique (A-57) who in turn communicated the same to Abdul Rasheed (A-28) and CA Rauf (A-12) based on which assailants located the victim Srinivasan and committed a terrorist act on 16.4.2022 by murdering him. He provided his white Activa Scooter having Regn No. KL-09-AK-6726 to Noushad (A-53) and Basheer (A-54) on 15.4.2022 for conducting a quick search of targets identified to eliminate and also provided the same vehicle to A-20 (identifiable person) and Abdul Khader (A-21) on 16.4.2022 for committing terrorist act of murdering Srinivasan. The presence of appellant Kajahussain @ Robot Kaja, at the place of criminal conspiracy along with the assailants Ummar @ Manu (A19, now A-18), Iqbal (A-21, now A-19), Muhammed Manzoor (A-23, now A- 21), Riyasudeen (A-26, now A-24), PFI leaders CT Sulaiman (A-14), Mujeeb (A-7), Ansari (A-6) , Abdul Vahab (A-15), and other accused at the vacant Place behind District Hospital, Palakkad on the noon of 16.04.2022 (ie just one hour before the murder of Srinivasan) is also alleged.
13. It is contended by the learned counsel for the appellant that allegations against Kaja Hussain @ Robot Kaja are false and incorrect. He is innocent and in no way connected with the alleged offence. Even the allegation put forth against him that he confirmed the presence of victim Srinivasan at Melemuri, Palakkad on 16th April, 2022 and communicated to Aboobacker Siddique (A-57) who communicated the same to Abdul Rasheed (A-28) and CA Rauf (A-12) based on which assailants located the victim Srinivasan and murdered him does not lead to implicate or attract the provisions of Section 43D (5) of the UA (P) Act against the appellant. No direct or indirect involvement of the appellant in an act that would warrant the invocation of the provisions of the UA (P) Act is disclosed by said allegation. So as to attract UA (P) Act as well as the rigours of Section 43D (5), a direct connection with the alleged offence is necessary. Here the appellant's alleged involvement is far remote and not at all direct. Hence the invocation of the mandates of UA (P) Act against him is illegal and unsustainable.
14. It is also further submitted that the appellant is an ankylosing spondylitis patient who has 40% locomotor disability as evidenced from Annexure A10 and needs constant assistance in jail. He was arrested on 26.11.2022. The allegations put forth are only due to political animosity between distinct parties. There is no allegation of Sec. 153 A IPC by the police. NIA had without conducting any investigation, incorporated the said offence and also the provisions under the UA (P) Act . The appellant has no connection or involvement whatsoever to the larger conspiracy of 'India 2047' agenda which is allegedly raised by the investigating agency to create a background of terror. Nothing has been brought out through records or evidence to show that the appellant had acted in furtherance of the alleged larger conspiracy. The appellant has been in custody for nearly 2 years and there is no chance of concluding the trial in the near future. The Special Court failed to appreciate the above facts.
15. The learned Senior Counsel, on behalf of the prosecution, resisted the appeal and submitted that the Special Court's rejection of the bail application is valid and legal, and no interference is called for. Appellant Kaja Hussain @ Robot Kaja is an active cadre of PFI and a Member of the Reporte wing of PFI and had attended arms training of the PFI. He had attended the conspiracy meeting held near the mortuary gate of District Hospital Palakkad and Khabaristan on 15.04.2022 as well as the conspiracy meeting held at vacant land behind District Hospital, Palakkad on 16.04.2022. He had located the victim Srinivasan and communicated his location to Abul Rasheed (A-28) and CA Rauf (A-12) as well as provided his white Activa Scooter having Regn.No.KL-09-AK 6726 for night recce on 15.04.2022 and also to the assailants for committing terrorist act of murdering Srinivasan.
16. We have given anxious consideration to the contentions put forth. As regards the contention of the learned counsel for the appellant that the allegation against Kaja Hussain @ Robot Kaja that he was a spotter who had confirmed the presence of the victim at Melemuri, Palakkad, and communicated it to A-57 who in turn communicated the same to A-28 and A-12 based on which assailants located the victim and murdered him, does not lead to implicate or attract the provisions of Section 43D (5) of the UA (P) Act against him, we find the same to be untenable. The nature of the information allegedly passed on by the appellant which facilitated the commission of the terror act is what matters and not the mere distance at which the person who passed on the information may stand from the actual commission of the terrorist act. When read along with the statements of witnesses and approvers, the material put forth would reveal reasonable grounds to believe that the accusation against Kaja Hussain @ Robot Kaja (A30, now A-26) is prima facie true. We therefore find the accused disentitled to a release on bail under Section 43D (5) of the UA (P) Act. The Special Courts Order in Crl.A.No.1593 of 2024 thus does not merit any interference.
Crl.Appeal of Jaleel P. (A66, now A-59)
17. The bail application preferred by the appellant in Crl. A. No.1198 of 2024 Jaleel P. (A66, now A-59) was resisted by the agency by placing before us materials including the final report prepared under Section 173 of the Cr.P.C. which inter alia states that he attended the 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 resulted in the murder of Srinivasan on 16.04.2022 by PFI cadres. In furtherance to the conspiracy, he knowingly and intentionally harboured Kaja Hussain @ Robot Kaja (A30, now A-26), in his house, after the commission of the terrorist act.
18. It is contended by the learned counsel for the appellant that allegations against Jaleel P. are false and incorrect. He is innocent and in no way connected with the alleged offence. Even the allegation put forth against him that he had harboured Kaja Hussain @ Robot Kaja (A30, now A-26), in his house, after the commission of the terrorist act cannot lead to implicate or attract the provisions of Section 43D (5) of the UA (P) Act against him is so far as there is no material to evidence that he had knowledge that the said Kaja Hussain @ Robot Kaja is a terrorist or invovled in any crime. The appellant can only be looked upon as someone who rendered assistance to Kaja Hussain who suffers from 40% locomotor disability and can hardly manage life by himself. Further, the alleged harbouring of Kaja Hussain was much later in point of time than the incident which is now being termed a terrorist act or a conspiracy to commit a terror act. The appellant cannot be implicated on the basis that the act imputed against the person whom he assisted on humanitarian grounds has subsequently been termed or classified as a terror act. At the time of harbouring Kaja Hussain, the appellant had only been assisting a person who was in need of help and assistance. The Special Court overlooked the same and had denied the bail which is incorrect.
19. The learned Senior Counsel, on behalf of the prosecution, resisted the appeal and submitted that the Special Court's rejection of the bail application was valid and legal, and no interference was called for. The appellant Jaleel P. is an active cadre of PFI and is in charge of the Physical Education (PE) wing of PFI. A voice clip of the appellant wherein he introduced himself as in charge of the PE wing of PFI was found on his mobile and recovered vide mahazar (Doc. No. 498). He had attended the conspiracy meeting held at vacant land behind District Hospital, Palakkad on 16.04.2022. He had harboured the accused Kaja Hussain @ Robot Kaja (A30, now A-26) and took him to the medical lab for test when Kaja Hussain was absconding and was being harboured by the appellant. The medical documents of Kaja Hussain were seized from the lab via mahazar (Doc.No. 499) based on the disclosure of the appellant. Voice clips and medical prescriptions related to the treatment to Kaja Hussain have been found in the mobile of the appellant and have been seized. The same clearly implicates the appellant.
20. We have given anxious consideration to the contentions put forth. As regards the contention of the learned counsel for the appellant that the allegation that the appellant had harboured Kaja Hussain @ Robot Kaja in-house and facilitated medical treatment to him can only be looked upon as an act of kindness rendered to a man in need of medical assistance though attractive at the first blush, loses its innocence and sheen once we note that the same were not rendered due to any filial or humanitarian concerns. Appellant had extended the same to Kaja Hussain @ Robot Kaja primarily as a fellow member of the organisation of which both were members. As pointed by the learned senior counsel, in the facts and circumstances there is all reason to believe that the appellant was knowingly facilitating the harbouring of Kaja Hussain @ Robot Kaja and extending assistance to him, whose involvement in the act has been considered by us in detail above.
21. When read along with the statements of witnesses and approvers, the material above would reveal reasonable grounds to believe that the accusation against Jaleel P. (A-59) is prima facie true. We therefore find the accused is disentitled to a release on bail under Section 43D (5) of the UA (P) Act. The Special Courts Order in Crl.A.No.1198 of 2024 thus does not merit any interference.
Crl.Appeal of Shihab P. @ Babu ( A-68, now A-61)
22. The bail application preferred by the appellant in Crl. A. No.1591 of 2024 Shihab P. @ Babu (A-68, now A-61) was resisted by the agency by placing before us materials including the final report prepared under Section 173 of the Cr.P.C. which inter alia states that he is the Master PE trainer imparting arms training to the cadres of PFI at Green Valley at Manjeri, Malappuram. Protected witness-57 and 58 also stated that Shihab @ Babu (A-68, now A-61), the petitioner herein, was the PE trainer of Aravangara Unit. Protected witness-58 has also stated that Shihab @ Babu (A-68, now A-61), the petitioner herein, imparted arms training to him at Green Valley at Manjeri, Malappuram. He conspired with accused Noushad M (A-63) on 16.4.2022 at Palakkad, harboured the accused Muhammed Hakkeem K (A-40) and others, in his residence after the terrorist act of murder of Srinivasan.
23. The learned counsel for the appellant contends that the allegations against Shihab P. @ Babu are false and incorrect. He is innocent and in no way connected with the alleged offence. He contends that except for the purported statements of protected witnesses, there is no corroborative material, to show that the said appellant had indulged in any activity culpable under the statutes per which he had been charged. No overt acts or acts of active participation by Shihab P. @ Babu in order to deny him bail has been put forth and the material placed before by the prosecution is thoroughly insufficient to and does not reveal any reasonable grounds for believing that the accusation against him is prima facie true.
24. The learned Senior Counsel, on behalf of the prosecution on the other hand resisted the appeal and submitted that the Special Court's rejection of the bail application of the appellant was valid and legal, and no interference was called for. The appellant Shihab P. @ Babu is an active cadre of PFI and is the Master Physical Education (PE) trainer imparting arms training to cadres of PFI. He had attended the conspiracy meeting held at vacant land behind District Hospital, Palakkad on 16.04.2022. He conspired with Noushad (A-63) near the Masjid at Para in Palakkad on 16.04.2022. Protected witness 29 has stated that the appellant harboured Muhammed Hakeem (A-40- now A 36) in his house. Later appellant had arranged accommodation for the said Muhammed Hakeem in a rented premises and arranged a bus ticket for him to travel from Malappuram to Madurai on 14.12.2022. He had brought the said Muhammed Hakeem to a motor vehicle shop to find him employment there under the name Safwan. The Bank statement of the protected witness proves receipt of Rs.1,000/- from the appellant.
25. We have given anxious consideration to the contentions. The materials do not reveal to us that there exists reasonable ground to believe that the accusations against Shihab P.@ Babu are prima facie true. The material relied upon by the prosecution, taken as a whole, does not cross the threshold of general allegations coupled with overt acts that would clearly suggest the complicity of the accused in the offence with which he is charged. There is no corroborative material, other than mere statements of witnesses, to show that there were overt acts or acts of active participation by Shihab P. @ Babu in order to deny him bail. We are hence unable to conclude from the material placed before us that there are reasonable grounds for believing that the accusation against Shihab P. @ Babu is prima facie true. Accordingly, the Crl.Appeal preferred by Shihab P.@ Babu has to be allowed. The impugned orders of the Special Court in Crl.A.No.1591 of 2024 shall stand set aside.
26. The Special Court shall enlarge Shihab P.@ Babu on bail on such conditions as the Special Court may deem necessary, but which must include the following conditions:
(a) The aforesaid appellant shall not leave the State of Kerala without leave of the Special Court.
(b) The aforesaid appellant shall surrender his passport, if he possess one, with the Special Court, during the period that he remains enlarged on bail.
(c) The aforesaid appellant shall inform the Investigating Officer of the NIA the address where he shall reside during the period he remains enlarged on bail.
(d) The aforesaid appellant shall each use only one mobile number, during the time he remains on bail, and he shall inform his mobile number to the Investigating Officer of the NIA.
(e) The aforesaid appellant shall also ensure that his mobile phones remain active and charged round-the-clock so that he remains constantly accessible throughout the period he remains enlarged on bail.
(f) During the period during which he remains on bail, the aforesaid appellant shall keep the location status (GPS) of his mobile phone active, twenty-four hours a day, and his phone shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the appellants' exact location.
(g) The aforesaid appellant, while on bail, shall report to the Station House Officer of the Police Station within whose jurisdiction he shall reside, once every fortnight.
27. In the event there is breach of any of these conditions or any other condition that may be imposed by the Special Court independently, it would be open to the prosecution to seek cancellation of the bail granted to the aforesaid Shihab P.@ Babu, before the Special Court only, without any further reference to this Court.
Thus, Crl.Appeal Nos.1593 of 2024 and 1198 of 2024 are dismissed. Crl.Appeal No.1591 of 2024 stands allowed as above.
