IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 66 of 2009()
1. SABIR.P.B, S/O. BUHARI,
... Petitioner
2. ANAS.P.K., S/O.KUNHIMUHAMMAD P.H
Vs
1. STATE OF KERALA (S.H.O. CRIME NO, 356/08
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :23/01/2009
O R D E R
K.HEMA, J.
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B.A. No.66 OF 2009
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Dated this the 23rd day of January, 2009
O R D E R
This petition is for bail.
2. The alleged offences are under Sections 3 read with
13(2), 18, 19, 38, 39 of Unlawful Activities (Prevention) and
Sections 120(B), 121, 121(A) and 124(A) of I.P.C. Petitioners
are accused nos.16 and 17, who have voluntarily harbored and
concealed fifteenth accused knowing that such person is a
terrorist. They have also conspired with other accused to
commit certain offences under the Unlawful Activities
(Prevention) Act, 1967 (for short “the Act”).
3. Fifteenth accused is a person, who has escaped from
the encounter in Kashmir and on reaching Kerala, accused
nos.16 and 17 harbored him at Permbavoor and made
arrangements for him to stay in a mosque situated in an
interior place. They also helped him to be hospitalised in
another name ‘Anoop’. They destroyed the identity card for the
purpose of destroying evidence and also obtained a job for
him. But when identity card was insisted, fifteenth accused left
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the job. Phone call details of accused nos.16 and 17 show that
they have made frequent calls to the prime offender in this
case. They have thus, taken part in the unlawful terrorist
activities.
4. Learned counsel for petitioners submitted that the
details in the remand report will not disclose that they have
committed offence under Section 19 of the Act. It is only stated
therein that they have helped fifteenth accused to get
treatment in a hospital and also made arrangements to stay in
a mosque. But, strictly speaking, such type of help will not
constitute offence under Section 19 of the Act, as per law, it is
submitted. The term “harboring” connotes something more
than this. It is also pointed out that first accused, who is the
prime offender in the case was granted bail. He is the sole
accused in the F.I.R. which was suo moto registered by the
Sub Inspector. Having released first accused, there is no point
in detaining petitioners, who have only lessor role in the
offence, it is submitted.
5. Petitioners were arrested on 05.12.2008 and they are
in custody for the past 48 days. Their detention is not required
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since the charge sheet is already laid, it is contended.
Petitioners are prepared to abide by any condition imposed by
this court and they will co-operate with the trial. Hence, bail
may be granted, it is submitted.
6. This petition is strongly opposed. Learned Public
Prosecutor submitted that accused nos.16 and 17 have
significant role in the offence. They have harbored a terrorist,
who is the fifteenth accused, who escaped from an encounter
in Kashmir. Four other persons who were in his company died
in the encounter who are arrayed as accused in this case as
accused nos.7 to 10. It is submitted that these persons have
been frequently attending religious classes. They knowingly
made all arrangements for the fifteenth accused and concealed
him knowing that he is a terrorist.
7. There is ample evidence in the case diary, which is
produced before this court, to reveal their active role in the
offence and the acts committed by them would clearly
constitute offence under Section 19 of the Act, it is submitted.
Even the phone call details are taken and petitioners have no
explanation for such calls being made to the prime offenders,
B.A.No.66 of 2009
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who are the terrorists. The identity card was caused to be
destroyed by petitioners knowing the nature of the
involvement of fifteenth accused in the crime. There are
several witnesses, who have clearly stated about petitioners’
role in the offence and if petitioners are released on bail, it is
likely that they will influence or intimidate such witnesses and
they will also abscond and it will adversely affect the trial. It is
true that first accused was released on bail but, it was only bail
by default, since the charge sheet could not be filed in time,
within 90 days. The investigation in this case is spread over
not only in Kerala but in other States also, and necessarily, it
had taken some time and for the sole reason that first accused
was granted bail, petitioners may not be granted bail. They are
not entitled for bail by default, since the charge sheet is
already been submitted.
On hearing both sides and on going through the case
diary, I am prima facie satisfied of the nature of involvement of
the petitioners in the offence. The charge sheet is already laid
and I also find that there are certain witnesses who have
spoken against petitioners and if petitioners are released on
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bail, it is likely that they will be influenced or intimidated, in
which event, the trial will be adversely affected. It is also likely
that petitioners may abscond. Considering the nature of the
allegations made and taking into account the nature of
activities, which they are allegedly engaged in, it is likely that
in all probabilities, they will abscond if they are released on
bail and they will not be available for trial. For all these
reasons, I am not inclined to grant bail to petitioners at this
stage.
The petition is dismissed.
K.HEMA, JUDGE
pac