IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4249 of 2008()
1. STATE OF KERALA REPRESENTED BY
... Petitioner
Vs
1. SHAMEER, AGED 30 YEARS,
... Respondent
2. ABDUL KAKKIM K.M., AGED 21 YEARS,
For Petitioner :ADDL.PUBLIC PROSECUTOR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :10/12/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 4249 of 2008
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Dated this the 10th day of December, 2008
ORDER
The State has preferred this Crl.M.C. with a prayer to
quash the order passed by the learned Sessions Judge under
Sec.439 Cr.P.C. granting bail to the respondents/petitioners
who are accused 6 and 7 in Crime No.15/06 of the
Binanipuram Police Station. That crime was registered
alleging offences punishable under Secs.120B and 124A IPC
and Secs.10 and 13(1)(b) of the Unlawful Activities
(Prevention) Act, 1967.
2. The alleged incident took place on 15/8/06. There
was a meeting held at an auditorium at Panayikulam on that
day. That was the Independence Day and the meeting was
allegedly supposed to discuss the “role of the Muslims in the
struggle for Indian Independence”. On receipt of discreet
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information that such a meeting is going on and that the said
meeting was convened and conducted in violation of the above
said provisions of law, the police party went to the auditorium
and they found a conclave of 18 persons. Five of them were
occupying the dais; whereas 13 others were the audience which
was available in the hall. Incriminating seditious materials were
allegedly seized from the persons occupying the dais. All the 18
were apprehended; but crime was registered only against the 5
who were occupying the dais and the other 13 were
apprehended, but were released without initiating any
proceedings against them. It is alleged by the prosecution now
that all the 18 persons were conspirators and were engaged in
seditious activities. They were all members of SIMI – a banned
organization under the Unlawful Activities (Prevention) Act, it is
alleged. Though initially only 5 accused were shown as
offenders in the FIR, long later the respondents/petitioners were
arrested as accused 6 and 7 on 6/10/08. They were remanded to
custody long later on 29/10/08 under the impugned order. The
respondents herein i.e., A6 and A7 were ordered to be released
on bail subject to appropriate conditions by the learned Sessions
Judge. They are now on bail subject to such conditions imposed.
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3. The State has preferred this Crl.M.C. contending that
the release of accused 6 and 7 on bail is not justified at all. The
seriousness of the offence alleged was not taken note of by
learned Sessions Judge. The learned Sessions Judge erred
grossly in coming to the conclusion that no satisfactory materials
have been collected against accused 6 and 7. In these
circumstances, it is prayed that invoking the jurisdiction under
Sec.482 Cr.P.C. the order granting bail to the respondents may
be quashed. The other accused arrested were released long
after their arrest and the Investigators were given time to make
progress in the investigation after their arrest. But so far as
the accused/respondents are concerned, they were arrested on
6/10/08 and were enlarged on bail on 29/10/08. The allegations
are serious. Sustained efforts to complete the investigation
have to be undertaken. Bail granted may, in these
circumstances, be cancelled, it is prayed.
4. The learned counsel for the respondents opposes the
application vehemently. The learned counsel for the accused/
respondents submits that stronger fare must be insisted to
justify the prayer for cancellation of bail. The learned counsel
for the respondents submits that except that the
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petitioners/accused also happened to be present at the meeting,
no incriminating materials whatsoever have been collected by
the Investigators against the petitioners/accused to justify their
initial arrest and, at any rate, to assail the order granting bail to
them. The respondents are willing to abide by any reasonable
terms. Their bail may not be cancelled. They have already
endured the trauma of unnecessary arrest and detention from
6/10/08 to 29/10/08. They may not be obliged to remain in
custody any longer, submits the counsel. The learned counsel
further submits that it may not be lost sight of from 15/8/06 to
6/10/08 no action was taken against the respondents.
5. I have considered all the relevant circumstances. There
are definite indications to suggest that some of the 18 persons
who had attended the meeting on 15/8/06 at Panayikulam have
later been allegedly involved in very serious crimes. They have
been arrested from out side the State. It is shown that those
persons have connections with the people carrying on seditious
activities. There are also indications to suggest that all the 18
who had collected there had gone there to take part in the
conclave. It was certainly not an open meeting. There are
indications also to suggest that the participants in the meeting
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on 15/8/06 had connections with the SIMI – a banned
organization which is now allegedly functioning under different
names. There are also indications to suggest that some
allegedly seditious materials were seized from the house of one
of the accused herein.
6. I have considered all the relevant circumstances. I am
unable to agree with the learned counsel for the respondents
that even the arrest was without any sufficient data. But,
however, I am not persuaded to agree that the respondents who
were not arrested from 15/8/06 to 6/10/08 and who have
remained in custody from 6/10/08 to 29/10/08 before they were
released as per the impugned order passed by the learned
Sessions Judge do deserve to be re-arrested and kept in custody.
It will not be inapposite in this context to mention that in the
remand report police custody of one of the two accused alone
was sought. He was given over to the custody for two days. He
was produced back after one day even before making use of the
entire period of police custody ordered by the learned
Magistrate. Considering the totality of circumstances, I find no
reason to justify the prayer to cancel the bail and take back the
respondents to custody.
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7. However, considering the nature of the crime and the
circumstances of the case, I am satisfied that modified/revised
conditions can and ought to be insisted to enable the
respondents to continue on bail.
8. In the result:
(a) This Crl.M.C. is allowed in part.
(b) The grant of bail to the respondents i.e., accused 6 and
7 by the learned Sessions Judge is upheld.
(c) But the conditions imposed are modified. The
petitioners shall be permitted to continue on bail on the
following revised terms and conditions:
(i) The respondents/accused 6 and 7 shall within a period
of 15 days from this date appear before the learned Magistrate
and execute fresh bonds for Rs.1 lakhs each with two solvent
sureties each for the like sum to the satisfaction of the learned
Magistrate.
(ii) The respondents/petitioners/accused 6 and 7 shall
make themselves available for interrogation before the
Binanipuram Police Station on all Wednesdays and Sundays
between 10 a.n. and 12 noon until the final report is filed or
until further orders.
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(iii) The condition that the petitioners/respondents shall
not leave the Sessions Divisions of Ernakulam and Thrissur until
further orders without the prior permission of the learned
Magistrate shall continue to remain in force.
(iv) The petitioners/respondents shall make themselves
available for interrogation before the Investigating Officer at
his office as and when directed by the Investigating Officer in
writing to do so.
(d) If conditions (i) to (iv) are not complied with, the
learned Magistrate shall take necessary action against the
accused and their sureties to procure the presence of the
accused under Sec.446 Cr.P.C.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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