IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2017 BEFORE THE HON' BLE MRS. JUSTICE RATHNAKALA CRIMINAL PETITION NO.2352/2017 BETWEEN FASIH MEHMOOD S/O FIROZ AHAMED AGED ABOUT 34 YEARS R/AT BARH SAMAILA VILLAGE LALGUNJ POST DARBHANGA DISTRICT BIHAR – 847 121.
(BY SRI.S.BALAKRISHNAN, ADVOCATE) AND STATE OF KARNATAKA BY CUBBON PARK POLICE REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE – 560 001.
(BY SRI.CHETAN DESAI, HCGP) ... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.96/2010 OF CUBBON PARK POLICE STATION, BENGALURU CITY AND S.C.NO.868/2013, 869/2013, 870/2013, 871/2013 AND 872/2013 PENDING ON THE FILE OF THE XLIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, NIA SPECIAL COURT, BENGALURU, FOR THE OFFENCE P/U/S 120(B), 121, 121(A), 123, 212, 435, 307, 201 OF IPC, 1908, AND SEC. 3 AND 4 OF EXPLOSIVE SUBSTANCE ACT, 1908, SEC.4 OF PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT, 1908, SEC.3, 10, 11, 13, 16, 17, 18, 19 AND 20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent- State.
2. The petitioner is arrayed as accused No.14 in the Additional charge sheet submitted by the respondent – Investigating Officer to the Court. The allegation against him is in respect of the offences punishable under Sections 120(B), 121, 121(A), 123, 212, 435, 307, 201 OF IPC, 1908, and Sections 3 and 4 of Explosive Substance Act, 1908, Section 4 of Prevention of Damage to Public Property Act, 1908, Sections 3, 10, 11, 13, 16, 17, 18, 19 and 20 of Unlawful Activities (Prevention) Act, 1967.
3. The gist of the allegation against the petitioner is that, he being the member of the banned Organization by name Indian Mujahidin/Islam Fundamental Organization, joined the main accused and facilitated them in their bomb blast that occurred at M.Chinnaswamy Cricket Stadium, Bengaluru on 17.04.2010 causing grievous injuries to six public. The police have recovered three live bombs from the premises of the cricket stadium. When the charge sheet was submitted to the Court, at that time, this petitioner was at Soudhi Arabia. He was procured by New Delhi Police, Special Cell in their Crime No.54/2011 and produced in this case under Body Warrant. When shown to CWs.38, 39, 97 and 98, they identified him.
4. Learned counsel for the petitioner submits that for last five years, the petitioner is in custody. No incriminating material is recovered by the Investigating Officer on his arrest. Even the witnesses have also not attributed any overt act against him. The allegation that can be summed up by the evidence of witnesses is that, he introduced the main accused – Mr.Yasin Batkal to the co-accused as a Member of the Students Islamic Movement of India (SIMI) which came to be banned and he was visiting where the co-accused used to congregate. The specific offence alleged against him will fall under the provisions of Section 18 (Conspiracy) of Unlawful Activities (Prevention) Act, 1967 which is not punishable with capital punishment. In fact, no documentary evidence or oral evidence is collected by the Investigating Officer to demonstrate that he is the member of the banned organization – Indian Mujahidin. He undertakes to abide by any condition that may be imposed on him. As such, he was not present in the Country on the date of bomb blast i.e., 17.04.2014.
5. In reply, Sri. Chetan Desai, learned HCGP., strongly opposing the petition and submits that since he was not available for investigation, the witnesses had no opportunity to identify him before filing of charge sheet. There is categorical evidence from CWs.38, 39, 97 and 98 about his involvement with the members of the banned Organization and his participation in the conspiracy that used to be held at Shaheen Bagh Fazal enclave – 2, Okla, Jamia Nagar, New Delhi -25. Accepting the submission made on behalf of the petitioner then also the punishment may extend up to life imprisonment. The alleged activities have the effect of destabilizing the security of the State, in such a matter enlarging the petitioner will tell upon the Trial. If the petitioner enlarged on bail, the petitioner may perpetuate his activities thus, endangering the national security and life of the common public.
6. With the above rival submissions for the limited purpose of disposal of this petition it is noticed and that the petitioner was not in the Country on 17.04.2014 when the bomb is blasted at Chinnaswamy Stadium, Bengaluru. On his production in this case under the body warrant, no incriminating material at his instance is recovered. None of the witness had cited his name in their 161 Cr.P.C. Statement which was recorded prior to submission of the first charge sheet. He is not alleged to have involved either in the dangerous activities of preparing the deteriorates or transport of the same. The Hon’ble Apex Court in the matter of Shaheen Welfare Association Vs. Union of India and others while considering a Public Interest Litigation pertaining to under trial prisoners charged under the terrorist Activities Prevention Act, 1987 at Para Nos.12 and 13 observed as under:
The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly in so far as the former class is concerned and liberally in respect of the latter class. This will release the pressure on the courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive. A pragmatic approach alone can save the situation for, otherwise, one may find that many of the undertrials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Sections 120B or 147, I.P.C., the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detentes and then deal with hardcore undertrials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished.
13. For the purpose of grant of bail to TADA detentes, we divide the undertrials into three classes, namely, (a) hardcore undertrials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular; (b) other undertrials whose overt acts or involvement directly attract Sections 3 and/or 4 of the TADA Act; (c) undertrials who are roped in, not because of any activity directly attracting Section 3 and 4, but by virtue of Sections 120B or 147, I.P.C., and; (d) those undertrials who were found possessing Incriminating articles in notified areas and are booked under Section 5 of TADA.
7. As per the submission at the Bar, totally 171 witnesses are cited in the charge sheet and trial is on for last seven months. Only 17 witnesses are examined till date. The concerned special Court is burdened with many similar trials.
8. Having regard to the specific role attributed against this petitioner in the alleged offence, Petition is allowed. Petitioner is enlarged on bail in Crime No.96/2010 registered by the respondent-police, subject to the following conditions:-
i) He shall execute a self bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two local sureties for the like sum who have no antecedents of offering surety in the criminal cases.
Sureties shall submit original title deeds of their properties and their identity cards/Aadhar Cards.
iii) He shall leave the place of his contact and the contact number to the Investigating Officer and mark his attendants on every alternate Tuesday till conclusion of trial. He shall maintain himself as law abiding citizen and shall not prevail upon the prosecution witness.
This order is passed subject to result of his bail petition.
Sd/- JUDGE BS