AZEEZ ODAKKALI vs DEPUTY SUPERINTENDENT OF POLICE

Appellant is the 6th accused in S.C.1/2015 NIA. The

case is pending before the Special Court for NIA

cases, Ernakulam. The appellant is in custody. He

sought bail under Sec.439 of Cr.P.C . The special

court dismissed his application. Aggrieved thereby,

the appeal is filed under Sec.21(4) of the National

Investigation Agency Act .

The accused persons including the appellant

allegedly committed various offences. Those are

offences punishable under Secs 120B, 143, 147,

148, 149, 153A, 201, 202, 212, 307, 323, 324,326,

341, 427 and 506 of IPC, Sec.3 of the Explosive

Substances Act and Secs 16, 18, 18B, 19 and 20 of

the Unlawful Activities (Prevention) Act (the UA(P)

Act for short).

The prosecution case is briefly this : A professor

by name T.J.Joseph prepared a question paper for an

internal examination in his college. It contained a

question which was allegedly profane as there was a

derogatory remark against Prophet Mohammed. The

accused persons got offended. They decided to take

law into their hands. They conspired to do away

with Joseph. The conspiracy hatched at a meeting

held on 28.3.2010 in Seemas Auditorium,

Perumbavoor. There was another such meeting on

3.4.210. It was held in the Inspection Banglow of

the Kerala Water Authority at Muvattupuzha. The

appellant was one of the conspirators. The

conspiracy was translated into action. An unlawful

assembly was formed. The members thereof attacked

prof.Joseph with the intention to finish him off.

His right palm was chopped off by the assailants.

They caused hurt to the family members of Joseph.

It was at 8.05 am on 4.7.2010 the incident. It was

a terrorist act within the meaning of Sec.15 of the

UA(P) Act. The conspirators and the assailants

belonged to an organization called the Popular

Front of India. The terror created by them caused

communal disharmony and fear in the minds of

general public.

The appellant stated his grounds for bail in his

application filed before the court below. He

reiterates those contentions in the appeal. The

National Investigation Agency filed objections

before the special court as well as this court

against the grant of bail to the appellant.

Heard the learned counsel for the appellant. Heard

the learned special public prosecutor for the

National Investigation Agency.

There are a few admitted facts. The appellant was

arraigned in the case as one of the conspirators.

He was shown in the charge-sheet as accused no. 33.

Cognizance was taken by the special court. The case

was numbered S.C.1/2013 NIA. The case against the

appellant and some others had to be split up as  they could not be arrested. The case against them

was re-filed as C.C.1/2015 NIA. The special court

disposed of S.C.1/2013 NIA. Among the accused

persons who faced trial, some were convicted and

the others were acquitted. Some of the persons who

were absconding surrendered before the special

court. The appellant surrendered on 3.3.2016.

Thereafter further investigation was conducted

under Sec.173(8) of Cr.P.C . The appellant was given

to police custody for three days. A supplementary

police report has been filed after the further

investigation. The appellant is in custody since

his surrender on 3.3.2016.

The appellant seems to have been implicated not as

an actual assailant who attacked prof.Joseph, but

as a conspirator. The former therefore highlights

that the persons who faced accusation of a similar

nature were acquitted by the special court in

S.C.1/2013 NIA. But acquittal of a few co-accused

is not a sure ground for the appellant to get bail.

Matters do not appear to be that simple as

attempted to be simplified by the appellant.

Further investigation was conducted after the

disposal of S.C.1/2013 NIA. The prosecution

contends that the appellant was the president of

the Muvattupuzha Division Committee of the Popular

Front of India. As such, according to the

prosecution, the appellant participated in the

recruitment of other accused persons for the

terrorist act which took place on 4.7.2010. The

submissions of the learned special public

prosecutor in the above lines cannot be brushed

aside. The appellant is not entitled to be enlarged

on bail just because of the acquittal of a few

accused persons in S.C.1/2013 NIA.

The appellant is, no doubt, in custody since

3.3.2016. He contended before the special court

that since the further investigation was going on

there was no possibility of he being tried in the

near future. The further investigation has been

completed and the supplementary police report has

been filed. To our query as to when the trial could

be commenced, the learned special Judge submitted a

report that it could be commenced in December,

2017. December, 2017 is not far off. Therefore, one

of the grounds urged before the special court

ceased to exist by now.

The incident was on 4.7.2010. The appellant could

not be arrested by the two investigating agencies

who investigated the case. It cannot be disputed

that the appellant was absconding. The special

court dismissed his application holding that he who

absconded for a long time could not be granted

bail. There is no whisper in his memorandum of

appeal that he did not abscond. He proved himself

to be a person capable of hiding for a long period

of six years. The possibility of him again fleeing

from justice cannot be ruled out. We uphold the

decision of the court below refusing bail.

The learned counsel for the appellant cited the

decision of the apex court in Umarmia v. State of

Gujarat [(2017) 2 SCC 731]. That was a case where

the accused therein was suffering incarceration for

more than 12 years and there was no likelihood of

completion of the trial in the near future. The

situation is not so in the present case. The trial

of the appellant who is in custody since 3.3.2016

could be begun in December, 2017. The learned

special public prosecutor submitted that the trial

of the appellant would not be as lengthy as it was

in S.C.1/2013 NIA, And, the appellant himself is

responsible for the delay in his trial as he

absconded for more than six years.

The appeal fails. The same is devoid of merit. It

deserves only a dismissal.

12.Dismissed.