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Judgment
R. Basant, J.—These appeals are preferred by the appellants u/s 21(4) of the National Investigation Agency Act, 2008 to assail the impugned orders under which their claim for regular bail has been rejected by the Special Court for Trial of NIA cases.
The appellants are accused No. 7 (Crl.A. No. 184 of 2012) and accused No. 8 (Crl.A. No. 182 of 2012) in S.C. No. 41 of 2011, pending before the Special Court for Trial of NIA cases, Ernakulam. In the nature of the facts and circumstances of this case, we feel it appropriate to dispose of these appeals together by this common judgment.
S.C. No. 41of 2011 relates to an incident which had taken place on 4.7.2010. The crux of the allegations is that a conspiracy was hatched to wreak vengeance against one Prof. Joseph. He was guilty of the alleged indiscretion of including in a question paper set by him for his students, certain objectionable and blasphemous references to the Prophet. A conspiracy was allegedly hatched and in prosecution of the said conspiracy, 8 persons including a driver (7th accused is said to be the said driver) allegedly committed the abhorrent act of chopping off the right palm of the said Prof. Joseph. The crime was initially registered alleging offences punishable under the Indian Penal Code. Subsequently, allegations have been raised against the accused persons for having committed offences punishable under the Unlawful Activities (Prevention) Act, 1967 (the "UAP Act" hereinafter) also. In the course of investigation, the appellants have been arrested. The 7th accused was arrested on 8.10.2010, whereas the 8th accused was arrested on 21.7.2010. They continue in custody from the dates of their arrest.
It is accepted that on 14.01.2011 the final report was submitted by the then investigating agency, the Kerala State Police. Cognizance was taken by the learned Sessions Judge and it is accordingly that S.C. No. 41 of 2011 was registered before the Special Court. Subsequently, as per order dated 1.4.2011, the investigation of the case has been taken over by the National Investigation Agency. The investigation is being continued now u/s 173(8) of the Code of Criminal Procedure. Investigation is in progress. The appellants continue to be in custody.
The appellants have been repeatedly moving Courts for bail. Their successive applications have been dismissed. It is in this context that they renewed their applications for bail before the learned Special Judge. The applications were opposed. The learned Special Judge, by the impugned orders, has taken the view that the appellants are not entitled to be released on bail at this stage also.
The learned counsel for the appellants submits that the very right to life of the appellants under Article 21 is infringed. They have been continuing in custody endlessly. Investigation by the NIA has not unearthed any better or further evidence so far. Final report has already been filed by the agency which initially investigated the case. There is no justification for insisting that the appellants must continue in custody any longer. In these circumstances, it is prayed that these appeals may be allowed and the appellants may be permitted to be on bail on any appropriate conditions.
The learned Special Prosecutor for NIA cases opposes the prayer for bail. The learned Special Prosecutor submits that the NIA is seized of the responsibility of conducting further investigation. According to the learned Special Prosecutor, sufficient materials have already been collected against the appellants. On the basis of their further investigation, the NIA may have to take a specific stand, not exactly congruent to the result of the investigation by the local police. The NIA feels that a comprehensive further investigation has got to be conducted. Such investigation is in progress. The king pin or the chief conspirator is accused No. 28. He has not been arrested so far in this case. Every reasonable attempt is being made to arrest accused No. 28 and ensure his repatriation to India. It is apprehended that accused No. 28 has fled the country and is abroad now. At this juncture, the appellants do not deserve to be enlarged on bail. The learned Special Prosecutor points out that while dismissing the earlier applications for bail and while disposing of appeals earlier, Courts have taken the view that there is reasonable grounds to attract the proviso to Section 43D (5) of the UAP Act. The appellants do not deserve to be enlarged on bail now, contends the learned Special Prosecutor.
We take the view that the mere fact that the Courts earlier have taken a view on the play of the proviso to Section 43D(5) shall not fetter the right of the appellants to claim bail at later stages of the investigation, if sufficient circumstances are there. Courts subsequently cannot obviously be prisoners of the earlier findings recorded. More so in a case where investigation is only in progress. Of course, in this case the final report had been filed, but the NIA does not stand by the final report rigidly. According to them, further investigation is in progress.
The learned Special Prosecutor submits that some further time is required for the NIA to complete the investigation. It is pointed out that in the common judgment dated 01.02.2012 in Crl.A. Nos. 2198 and 2199 of 2911, the NIA has been granted time and has been directed to complete the investigation as expeditiously as possible. Observation was made that some other accused shall be at liberty to renew their applications for bail after 01.04.2012, if by that time investigation was not completed and further report is not filed by the NIA. We take note of the following observations in paragraph 23 of the said judgment:
We are not, at this juncture, proceeding to consider afresh whether bail can be granted under the proviso to Section 43D (5). Suffice it to say that in the light of the observations made by the earlier Bench and in the light of the specific material to which our attention has been drawn, we are satisfied that the present investigators deserve to be granted further time to complete the investigation. Investigation cannot evidently go on endlessly. There must be a sense of expedition on the part of the investigators to complete the investigation at the earliest. We are satisfied that the investigators can now be given time till 1.4.2012. Investigation will have to be completed at the earliest. We are conscious of the challenges before the investigators in a crime like this. It is not our intention to prescribe any rigid time frame for completion of investigation. That the investigators need further time to complete the investigation, and collect materials against the appellant, shall not be reckoned as a relevant circumstance after 1.4.2012. If investigation is not completed by then, needless to say, the appellant shall be at liberty to renew his application for bail and thereupon the question shall be considered afresh as to whether the appellant deserves to be granted bail in accordance with the proviso to Section 43D(5). The question whether there are reasonable grounds for believing that accusations against the appellant are prima facie true, shall be considered afresh by the Courts after 1.4.2012 on the basis of the entire materials which the investigators can collect by then, i.e. 1.4.2012
The learned counsel for the appellants, Sri. Sunny Mathew, submits that with the available materials itself the appellants are entitled to be enlarged on bail. This submission is stoutly opposed by the learned Special Prosecutor. Accused No. 7, it is pointed out, was one of the persons who was available along with other members of the unlawful assembly at the scene of the crime. Altogether there were seven accused persons (A1 to A7), who had taken part in the actual culpable operation. Accused No. 7, one of the appellants, was personally present at the scene of the crime, it is pointed out. He has been duly identified by the witnesses. He has transported the other members of the unlawful assembly to the scene of the crime. He had transported them back from the scene of the crime to ensure their escape. According to the learned Special Prosecutor, it was a very well planned operation, where specific roles were assigned to the various participants by the ''central command'' of the operation. Accused No. 7 was, with necessary culpable knowledge and intention, a participant in the crime. Whether he had actually inflicted injuries on the victim or not, is not very crucial in the facts and circumstances of this case, points out the learned Special Prosecutor.
So far as accused No. 8 is concerned, graver allegations are raised against him. According to the learned Special Prosecutor, he was the "second in command" directly operating under A28 in the operation. It is the case of the prosecution that he had identified and recruited the personnel to implement the operation. In particular, the learned Special Prosecutor points out that A7, the driver, had taken the miscreants from the scene of the crime. He facilitated the escape of the other participants. He was instructed to handover the vehicle to A9. The command to A9 was also specific. He was to take the vehicle from A7 and deliver it to A10. A9 was instructed by A8 to take the vehicle from A7 and deliver the same to A10. The appellants had handed over the telephone number of A10 in a slip written in his own hand to A9.
The learned Special Prosecutor submits that on account of providential intervention, the vehicle driven by A9 happened to be intercepted by the police under suspicion. The vehicle did bear telltale indications of its involvement in a culpable incident. A9 was questioned and it was thus that the events unfolded before the investigators. Accused No. 8 is said to be the one who instructed A9. It is alleged that he had other important roles also. He has been identified as one who went to the house of the victim to do the initial survey/scheming operations. Apprehending that A8 may be arrested by the police, he was harbored at various places by the other accused to ensure that the police were not able to get clue of the real nature of the incident. The learned Special Prosecutor points out to the Court the materials that are relied on by the investigators at this stage to contend that the 8th accused/appellant had active role to play in the incident.
We do not want to expatiate. We do not want to enter any specific finding on the acceptability of the materials collected and relied on by the investigators. We find merit in the contention of the learned counsel for the appellants that it must, at any rate, be ensured that the investigation is completed at the earliest and their application for bail is considered in the light of the totality of materials collected in such further investigation by the NIA.
We are not satisfied that the appellants deserve to be enlarged on bail now. However, we direct - in continuation of the directions given in the judgment dated 01.02.2012 that the appellants herein shall also be at liberty to apply for bail afresh after 01.04.2012 and the claim for bail of the appellants shall then be considered on the basis of the totality of the inputs available till then including the crucial input that the appellants have been continuing in custody from 8.10.2010 and 21.7.2010 respectively. We need only reiterate that we expect the NIA to complete the investigation at the earliest. We repeat the observation that the appellants shall be at liberty to apply for bail again before the Special Court after 01.04.2012.
With the above observations, these appeals are dismissed.