IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7481 of 2009()
1. SOOFIYA MADANI, AGED 34,
... Petitioner
Vs
1. P.M. VARGHESE, ASSISTANT
... Respondent
2. S.I. OF POLICE, KALAMASSERY, REPRESENTED
3. STATE OF KERALA
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.P.D.JOSEPH,PARTY-IN-PERSON
The Hon'ble MR. Justice K.T.SANKARAN
Dated :17/12/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 7481 OF 2009
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Dated this the 17th day of December, 2009
O R D E R
Soofia Madani, accused No. 10 in Crime No. 469 of 2005 of
Kalamasseri Police Station has filed this Bail Application under
Section 438 of the Code of Criminal Procedure for anticipatory bail.
2. The offences alleged against the accused are under
Sections 120-B, 121-A, 436, 364, 323 and 506 (ii) read with Section
34 of the Indian Penal Code, Section 4 of the PDPP Act and Section
27 of the Arms Act.
3. The prosecution case is that as a result of the criminal
conspiracy hatched by the accused to commit an offence, on
9.9.2005, some of the accused persons boarded a bus owned by the
Tamil Nadu Government Road Transport Corporation bearing
registration No. TN-01 N 6725 from the K.S.R.T.C. bus stand at
Ernakulam and some others followed on motor bikes and when the
bus reached in front of the Kalamassery Municipal office, the
accused persons hijacked the bus, threatening the driver under knife
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and gun point. There were 32 passengers in the bus. The bus was
taken to an isolated place near HMT colony. The passengers were
asked to come out of the bus with their belongings. Thereafter, the
accused set ablaze the bus by pouring diesel and petrol. The bus was
fully destroyed by fire. It is alleged that the offence was committed to
wage war against the Tamil Nadu Government on account of the
prolonged detention of Abdul Nasar Madani in Central Prison,
Coimbatore.
4. The investigation of the case was handled by several police
officers in succession. On 19.2.2009, charge sheet was filed before the
Court of the Judicial Magistrate of the First Class II, Aluva. Nine
persons were arrayed as accused in the case. It would appear that one
P.D.Joseph filed an application before the Court making an allegation
that the petitioner is involved in the offence. The investigating officer
made an enquiry. A report was filed in court for sanction for further
investigation in the case. As permitted by the court as per the order
dated 1.4.2009, further investigation is being conducted in the case.
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5.It is alleged that during investigation, sufficient materials were
collected to show that Soofia Madani is involved in the offence. It is
stated that some of the accused persons, namely, Abdu Rahim, Majeed
Parambai, Sabir and Tajuddin, had contacted her over phone before
and after the incident. It is also stated that in the statements given by
Tajuddin and Sherif under Section 164 of the Code of Criminal
Procedure before the learned Magistrate, there are indications that the
petitioner was actively involved in the criminal conspiracy and in
motivating the accused persons for executing the plan to commit the
offence. It is also alleged that Soofia Madani had made and received
several telephone calls to and from outside Kerala. The investigating
agency is making investigation about the connection, if any, of the
petitioner and the other accused persons with Lashker-e-Thoiba, a
banned terrorist organisation.
6. In the Bail Application, it is stated, inter alia, as follows: The
petitioner is a house wife residing at Ernakulam with her husband and
minor children. Her husband Abdul Nazar Madani is the Chairman of
the People’s Democratic Party. Abdul Nazar Madani had undergone
B.A. NO. 7481 OF 2009
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detention in the Central Jail, Coimbatore for more than nine years, in
connection with the Coimbatore blast case. After trial, he was acquitted.
He was released from jail on the 1st of August 2007. After his release
from jail, he is closely associated with social and political activities in
Kerala. During the last election to the Kerala Legislative Assembly,
Madani was in jail. However, he supported the Left Democratic Front
which came into power. In the last election to the Parliament, he
“extended his support and actively participated in the election campaign
of the LDF. That resulted fury and threat from political opponents.”
7. It is also stated in the bail application that after completing the
investigation, charge was laid before the Court of the Judicial Magistrate
of the First Class, Aluva. However, further investigation under Section
173(8) of the Code of Criminal Procedure was ordered by the Court on
a petition filed by one P.V.Joseph. As part of further investigation,
Sri.Vinod Kumar I.P.S., the head of Anti Terrorist Squad and
Sri.P.M.Varghese, the Assistant Commissioner of Police, Thrikkakkara,
the chief of the investigation team, had questioned the petitioner in
detail. “The visual media had shown false news that the petitioner is
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having active involvement in the crime in recent time immediately after
the arrest of one Thadiyantavide Nazar, one of the accused in crime.”
Annexure I notice dated 7.12.2009 was served on the petitioner
directing her to appear before police on 10.12.2009. The petitioner is
staying along with her husband, who is undergoing treatment in an
Ayurvedic Hospital, Mukkam, Kozhikode. The petitioner cannot move
from the hospital leaving her husband alone. The petitioner apprehends
arrest. Any such “high handed and illegal arrest” may create an
impression that the petitioner is “associated with persons of notorious
criminal back ground and it may tarnish the image of the petitioner
among public.”
8. Now, it is admitted that the husband of the petitioner has
discontinued the treatment at the Ayurvedic Hospital at Mukkam and he
has moved to a place in Kollam District. There is no case that the
husband of the petitioner is continuing his treatment. Therefore, one of
the grounds on which the petitioner has sought for anticipatory bail is no
more available now.
B.A. NO. 7481 OF 2009
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9. Learned senior counsel Sri.V.Chitambaresh submitted that the
petitioner is a pardanashin lady and, therefore, she cannot be
compelled to appear before the public. She cannot be, therefore,
arrested and detained. The petitioner could not point out any law
exempting a pardanashin lady from being proceeded against under the
criminal law of the land. There is no whisper in the Bail Application that
the petitioner is a pardanashin lady. I am not inclined to accept the
contention raised by the learned senior counsel appearing for the
petitioner.
10. The learned senior counsel also submitted that the petitioner
is a woman and she is suffering from several ailments. It is submitted
that there is a cyst in her ovary and, therefore, she does not have the
required health to withstand arrest and detention. Learned counsel
submitted that under sub-section (1) of Section 437 of the Code of
Criminal Procedure, the Court can release a person on bail if such
person is a woman or is sick or infirm. The counsel submitted, relying
on AIR 1977 SC 366 that the parameters under Section 437(1) can be
adopted while disposing of an application under Section 438 of the
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Code of Criminal Procedure. There is no case for the petitioner in the
Bail Application that she is suffering from any disease or ailment. After
the arguments were partly over, an application was filed by the
petitioner to receive some documents. I have perused Annexures A2 to
A5 produced along with Crl.M.A.No.6992 of 2009. These documents do
not establish that the petitioner is not having the required health to
withstand arrest and detention. That the petitioner is a woman, by itself,
may not be a sufficient ground to enable her to get the discretionary
relief under Section 438 of the Code of Criminal Procedure. If that
contention is accepted, all the women accused of non-bailable offence
should be granted anticipatory bail even though grave offences are
alleged against them. I am not inclined to accept the contention put
forward by the learned senior counsel in this regard.
B.A. NO. 7481 OF 2009
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11. The contention that there is threat from the political
opponents of the husband of the petitioner, is also not relevant. The so
called political opponents of the husband of the petitioner are not in
power in the State now. On the other hand, the political parties to
whom, the petitioner states that her husband gave support, are in
power. Therefore, the ground stated by the petitioner is baseless.
12. Adv. Sri.V.Chitambaresh, learned senior counsel appearing
for the petitioner submitted that a third party has no locus standi in the
criminal adjudicatory process and, therefore, the order dated 1.4.2009
passed by the learned Magistrate granting sanction for further
investigation is illegal and void. Counsel says, if so, it cannot be said
that the petitioner is involved in the case as an accused. The counsel
submits that necessarily it has to be held that the petitioner cannot be
arrested in connection with the crime. The learned counsel relied on
the decision in Janatha Dal v. H.S.Chaudari ((1992) 4 SCC 305) and
State of Kerala v. Balakrishna Pillai (1993 (1) KLT 473) in support of the
contention.
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13. In Shaji v. State of Kerala (2003 (2) KLT 929), a Division
Bench of this Court, after considering all the relevant aspects relating to
further investigation under Section 173(8) of the Code of Criminal
Procedure, held thus:
“20. In the above circumstances, we arrive at the
following conclusions:
(1) When a final report is filed before the Magistrate
under S.173(2), the Court may accept the report
and either drop the proceedings or take cognizance
of the proceeding on the basis of the report;
(2) The court may disagree with the report. Even if the
final report states that no offence has been
committed, if the Magistrate feels that there are
sufficient grounds for proceeding further, he can
issue process and take cognizance of the offence;
(3) The Court may without accepting the report order
further investigation. Magistrate has no power to
direct the police to file a final report in a particular
form or report making some persons guilty. On the
basis of the further investigation, police is free to
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make the final report;
(4) By taking cognizance of the offence, adjudicatory
process of the court starts and normally
investigation stage ends except under S.173(8).
Therefore, ordinarily, after taking cognizance of the
offence, Court shall not suo motu order further
investigation unless circumstances warrant;
(5) If the complainant files a petition saying that real
culprits were not included in the final report or there
is lacuna in the investigation which will cause
failure of justice and if the Magistrate after
considering the matter comes to the prima facie
conclusion that proper investigation was not
conducted, he is not helpless, the Magistrate will
be free to order further investigation to avoid failure
of justice;
(6) S.173(8) gives power to the police to conduct
further investigation with permission from the
Magistrate even in a case where cognizance of the
offence has already been taken by the Magistrate.
The above provision gives express power to the
police for further investigation even after taking
cognizance of the offence;
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(7) S.173(8) puts no bar on the Magistrate to order
further investigation. If the Magistrate comes to the
conclusion that in the interest of justice a further
investigation is necessary, he can trigger the police
to exercise the power under S.173(8) as police has
power to conduct further investigation under S.173
(8) even after taking cognizance of the offence.
The Magistrate has got power to point out to the
police to exercise their duties under S.173(8) if on
the facts of the case, it is revealed that further
investigation is necessary. But, such powers can
be exercised sparingly only if the circumstances
warrant in the interest of justice;
(8) There is no provision in the code prohibiting or
fettering the power of the Magistrate from ordering
further investigation if the circumstances warrant to
prevent miscarriage of justice. It is the duty of the
Court to see that ultimate truth is revealed and no
innocent shall be punished and at the same time
real culprits shall not escape;
(9) When a Magistrate order further investigation, High
Court in its revisional power shall not interfere in
the same unless there is miscarriage of justice.”
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14. The petitioner has not challenged the order passed by the
learned Magistrate dated 1.4.2009 ordering further investigation of the
case. The petitioner cannot do so in a Bail Application filed under
Section 438 of the Code of Criminal Procedure. Therefore, I am of the
view that it is not necessary for me to consider the legality or otherwise
of the order dated 1.4.2009 passed by the learned Magistrate granting
sanction under Section 173(8) of the Code of Criminal Procedure for
further investigation.
15. The petitioner has critized the media for propagating “false
news”. I do not think the petitioner has substantiated this contention.
On the other hand, the recent events show that the media, visual and
print, have shown keen interest in bringing out the details of terrorist
activities which took place in the State for the last few years. The media
have also emphasised the need to take effective steps to combat
terrorism. I am of the view that the criticism made by the petitioner
against the media is baseless.
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16. The learned Director General of Prosecution submitted that
there are enough materials to come to the conclusion that the petitioner
is involved in the criminal conspiracy. The telephone call details of
Soofia Madani in her mobile phone No.9388820202 would show that
she had received several calls and she had made calls to telephone
Nos.9388153667 (of Abdu Rahim), 9388523425 (of Majeed Parambayi),
9447739872 (of Sabeer) and 9349267924 (of Thajudeen). Abdu Rahim
died in the encounter with the Security Force in Jammu and Kashmir
while he was trying to enter into Pakistan. Majeed Parambayi, Sabeer
and Thajudeen are accused persons in the present case. It is also
submitted that Nazir, who is now arrayed as accused No.1, had close
contact with Soofia Madani. Nazir is said to be the South Indian
Commander of Lashkar-e-Toiba, a terrorist outfit.
17. The learned Director General of Prosecution submitted that
the State will not tolerate terrorism or terrorist activities. The State is
committed to protect the interests of the general public. The learned
Director General of Prosecution submitted that whoever may be the
person involved in any terrorist activity, he or she would be appropriately
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dealt with by the State and the Police. The State is determined to curb
terrorism in the State of Kerala.
18. It is not in dispute that terrorist activities are alarmingly on the
increase in the State of Kerala. Nobody could say that these activities
originated only recently. It is stated that four Keralities died in an
encounter with the security forces in Kashmir, while those four persons
tried to cross the border. It is also stated that one of those persons was
involved in the present case as well. The present crime took place in
2005. That means at least in 2005, there were organised terrorist
activities in the State of Kerala. Terrorism is an evil. It is aimed at the
people at large. The presence or absence of a person at the spot of
terrorist attack alone determines whether he would become a victim or
not. The State is bound to protect the citizens from the evil of terrorism.
Narrow political considerations should be kept aside while dealing with
terrorism. No useful purpose would be served by resolving the dispute
as to which of the political parties was at fault. People may not be
interested in that. They are interested in their welfare and safety and
the prevalence of peace in the society. The people cannot be blamed if
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they think that all the political parties failed to show the required political
will in the matter of dealing with terrorist activities. The people could
arrive at the conclusion on the basis of the events which took place in
the State of Kerala during the last few years. Nobody can prevent the
thinking process of the common man. But the people’s voice is
reflected mainly through the political parties. If the political parties do
not show the required political will, the sufferers will be the people.
19. It is strange that the intellectuals in the State of Kerala are
keeping mum in respect of the terrorist activities in the State. They owe
a duty to the society to react and to change the mindset of the erring
people.
20. The people at large also should ask a question to
themselves. Do they have and do they exhibit the patriotic feelings to
the full extent in their words and needs ? If the people show their will
power in the matter of combating terrorism, it would, to a great extent,
solve the problem. Indulging in long discussions in not so important
local events, engaging in propagating separatist and narrow ideologies
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and at the same time not giving the required attention and importance to
the sovereignty and integrity as well as the safety and security of the
nation, would not do much good to the society.
21. Short term and long term measures are to be taken to
combat terrorism effectively. A concerted and whole hearted effort by
the people is required for that purpose. We have to think of the safety
and security of the people for the present and for the generations to
come. Patriotic feelings should be inculcated in the minds of the youth
and the students. It would also be appropriate to include in the
carriculum, the required material to achieve the object. Students should
come out of the educational institutions as proud Indian citizens.
22. People expect ,much from the police. The police personnel
should ask a question to themselves. Have they taken effective steps to
combat terrorism, uninfluenced by any consideration whatsoever? The
people would answer, if you ask. Let them say. I leave it at that.
23. Serious allegations are levelled against the petitioner.
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Waging war against the Government is punishable with imprisonment
for life or imprisonment by either description which may extent to ten
years. The facts and circumstances of the case would clearly show that
the burning of the bus was not the result of an agitation by a group of
people and due to some unforeseen events which took place in any
such agitation. The allegations would disclose that the act of setting fire
to the bus was accomplished as a result of pre-meditation and with the
active assistance and involvement of several persons located at
different parts of the State. The events which allegedly took place after
the incident would also disclose the seriousness of the offence. There
is prima facie evidence to indicate that terrorist activities took place and
the incident in the present case was the result of such terrorist activities.
A relief under Section 438 of the Code of Criminal Procedure is not
intended to protect the accused persons involved in such offences.
Section 438 of the Code of Criminal Procedure is not a refuge for the
offenders who indulge in grave and heinous crimes. The jurisdiction
under Section 438 of the Code of Criminal Procedure is discretionary.
An order for anticipatory bail cannot be claimed as a matter of right.
The jurisdiction under Section 438 cannot be exercised mechanically.
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Discretion should be exercised in a judicious manner and not as a
matter of course. The nature of the offence is a basic and relevant
consideration while dealing with an application for anticipatory bail. The
need for custodial interrogation is also a matter to be taken note of. In
the facts and circumstances of the case, I am of the view that custodial
interrogation of the petitioner would be required. If anticipatory bail is
granted to the petitioner, it would adversely affect the proper and
smooth investigation of the case. I am also of the view that the
petitioner is not entitled to the discretionary relief under Section 438 of
the Code of Criminal Procedure.
For the aforesaid reasons, the Bail Application is dismissed.
(K.T.SANKARAN)
Judge
ahz/